A couple weeks ago, I had the privilege of appearing in Kanawha County Circuit Court, in front of the Honorable Judge Bailey, on behalf of a fellow West Virginia citizen who had been accused of driving under the influence in the Fall of 2011.
The nature of my appearance was in regards to a Writ of Prohibition appellate action that I had filed on behalf of said citizen against the West Virginia Division of Motor Vehicles (WV DMV) seeking to have the Kanawha County Circuit Court order that the WV DMV cease and desist with attempting to suspend my client’s West Virginia driver’s license. (In West Virginia, one must file these type of legal actions in our state capital county of Kanawha in Charleston, West Virginia due to said locale being where the Division of Motor Vehicles is headquartered.)
The central issue of the appellate action was whether or not the WV DMV can institute licensing suspension action against a citizen when the statutorily required 48 hour time period for the arresting officer to file the necessary paperwork with the WV DMV, in which to ignite licensing suspension action against the citizen, has long since past.
In West Virginia, per statute, a law enforcement officer who arrests a citizen for DUI must file with the WV DMV a “statement of arresting officer” within 48 hours of said arrest in which to ignite licensing suspension action against the citizen by the WV DMV.
In prior case rulings by the West Virginia Supreme Court of Appeals on this issue, to which the WV DMV is relying, all such cases had some nexus to the 48 hour time period requirement. (i.e. portion of paperwork submitted past the 48 hour deadline with some filed timely, 72 hours in one case, etc.). In these cases, our state high court held that the citizen must show some form of substantive detriment to the citizen due to the 48 hour rule having been violated.
In my instant case there is absolutely no connection to the 48 hour time period whatsoever. Furthermore, there is the potential of significant detriment to my client if the WV DMV is allowed to seek the suspension of his West Virginia driver’s license.
Specifically, my client was arrested in early November of 2011. In late January of 2013, nearly 14 months past his arrest date, he received in the mail a Notice of Revocation submitted by the WV DMV advising that the arresting officer had submitted a statement of arresting officer (on December 27, 2012) and thus the WV DMV was seeking to suspend my client’s West Virginia driver’s license. (*The underlying suspension period is for one year followed by two years mandatory interlock installation in his vehicle.)
Further, in Fall of 2012, approximately one year post arrest, and based in large part that there was no pending license suspension action against my client by the WV DMV, he elected to enter a no contest plea to his DUI charge, thus insuring that there could never be a jury finding or plea entry of guilty in which to ignite on its own said licensing suspension action. Noting that per West Virginia law, and while still a criminal conviction for lifetime record purposes, a citizen is entitled to an administrative hearing in which to challenge the suspension of his or her driver’s license even if there has been a no contest plea to the DUI charge entered in the criminal court, where a guilty plea or finding of guilt will close that door and on its own ignite licensing suspension action,
Of additional note, my client testified before Judge Bailey as to the detriment he would suffer if the WV DMV were allowed to now, thirteen plus months later, seek to suspend his WV driver’s license. He testified to taking a job two plus hours away from home to which requires him to drive to and from; and moreover, in the interim thirteen months, he also commenced with adoption proceedings of a 7 year old little girl from a foreign country, to which also depends on my client’s ability to drive to and from his employment to earn a living to pay for the care of this little girl. All of which, my client collectively undertook months after his arrest when it was clear that the arresting officer had not filed the proper paperwork with the WV DMV not only within the required 48 hour time period but at all. And all of which my client now stands to lose if this blatant violation of West Virginia law is allowed to be done by our WV DMV.
Upon a representative of the WV DMV taking the stand under oath, I came to learn that the WV DMV legal division assigned this individual with the responsibility of “investigating” all DUI criminal court convictions received from around the state to see if there is any licensing suspension action that was enforced or that can be enforced due to said plea, or at minimum, that there is licensing suspension action against the citizen pending by the WV DMV.
In the event that there is not any suspension action pending, or ever instituted by the WV DMV, said representative is to contact the arresting officer in which to demand that he or she file the proper paperwork or face contempt proceedings.
So, in the instant case, over a year post my client’s arrest, the WV DMV contacted the arresting officer and had him file with the WV DMV a statement of arresting officer over one year removed from my client’s arrest.
The WV DMV legal division argues this is completely permissible and in compliance with fundamental concepts of due process and the United States Constitution. For their role is to, “…take drunk drivers off the road.”
