Whether DUI offenders with higher blood alcohol contents should be included in the West Virginia’s new DUI deferral program — as the law is written — is the subject of debate, local officials said.
The law, which went into effect on June 11, allows most first-time DUI offenders who didn’t hurt or kill anyone to have their DUI charge dismissed if they attend an approved safety and treatment program, serve a 15-day driver’s license revocation, and complete 165 days on the interlock program, said Division of Motor Vehicles (DMV) General Counsel Jill Dunn. The offender can apply for expungement of the offense after one year if he or she goes that long without incident.
What’s causing the problem, however, is whether a first-time offender charged with aggravated DUI (a BAC of .15 or above) is eligible for the deferral program. The legal limit for driving is .08.
Monongalia County Magistrate Hershel Mullins said he doesn’t believe that was the intent of the law, but that is the way it is written. He also wondered what happens to aggravated DUI offenders who take a deal and plead guilty to non-aggravated DUI.
“I think the intent of the law is 1/8for people with a BAC of3/8 .08 to .15, but that is not what they did,” Mullins said. “If you read the code, that’s not what it says.”
As a result, Mullins and other magistrates in Monongalia, Marion and Preston counties allow any firsttime offender to apply for the program, since the form goes to the DMV for approval first.
Dunn, however, said aggravated DUI offenders are not eligible.
“I believe that they are mistaken,” she said by email. “The deferral program is for true first offenders of simple DUI. Those drivers charged with aggravated DUI are not eligible for the deferral program. … If an officer charges a driver with aggravated DUI, that would be a violation of another provision of the article 1/8not the section of code that deals with the nonaggravated DUIs3/8.”
Acting W.Va. Senate President Jeffrey Kessler, D-Marshall, sponsored the bill. He said it was intended only to apply to first-time DUI offenders with BACs below .15. He said no one has expressed concern to his office about the practical implementation of the law.
“Our intent was to give low-level DUI offenders the opportunity not to have that scarlet letter on their record, which, in many instances, keeps them from being gainfully employed,” Kessler said.
Morgantown Defense Attorney Ray Yackel said he reads the law to mean any first-time DUI offender — aggravated or otherwise — is eligible for the deferral as long as he completes all of the required elements of the statute. He doesn’t think the DMV has the right to refuse participation in the program if the person follows all the rules and meets the requirements.
“I don’t think the legislature gave the DMV any additional powers,” Yackel said. “I think the legislature said if you plead guilty or are found guilty of this section, you are eligible to participate in the program.”
Yackel said he expects defense attorneys to begin contesting parts of the law regarding the acceptance of aggravated DUI offenders — and the acceptance of people with decades-old DUIs. Yackel said DUIs older than 10 years do not count for enhancement purposes, so he thinks that a person with an old DUI who gets a new one could be allowed to enter the deferral program.
Enhancement means that, if you are convicted of DUI in 2000, for example, and then get arrested for a new DUI in 2011, the DUI from 2000 does not count because it happened more than 10 years ago. You would be charged with first-offense DUI, rather than secondoffense DUI. Yackel thinks that DUI offender should also be eligible for the deferral program for his new DUI, as it should be considered a first offense.
Dunn disagreed.
Monongalia County Prosecuting Attorney Marcia Ashdown said she doesn’t think people who have ever had another DUI — regardless of how many years ago — are eligible for the deferral program. She does read the code, however, to include aggravated DUI offenders.
“Maybe 1/8only allowing nonaggravated DUIs3/8 was someone’s thought when they drafted the deferral program, but that is not how it reads and you can’t wish it into being.” Ashdown said her office is writing the offender’s BAC on the form they sign so that the information is part of the record.
Morgantown Municipal Attorney Brent Burton said he thinks the law only includes nonaggravated DUI offenders.
“It’s not an easy statute,” he said. “I think there can be different interpretations. I’m trying to be consistent.”
Monongalia County Magistrate Sandy Holepit said she disagrees with the law as she interprets it, but follows it anyway.
“This should be for DUI under .15. That’s only my personal opinion, but I don’t make the laws, I just enforce them,” she said.
Kessler encouraged people with concerns about the implementation of the law or suggestions on how to improve it to contact his office.
Ninety drivers are currently enrolled in the program throughout the state, Dunn said. Six have completed the program and three have been disqualified because they didn’t comply with the requirements. Six drivers were refused entry into the program. One of those was refused because the person was driving under the influence of a controlled substance alone and the rest were denied because they held commercial driver’s licenses, Dunn said. Neither of those groups of drivers are eligible, she said.
According to Dunn, to be eligible for the DUI deferral program, a driver must meet the following requirements:
Must be a first-time DUI offender.
Must have a BAC less than .15.
May not possess a commercial driver’s license, even if the driver was not operating a commercial vehicle at the time of arrest.
Was not charged with refusing to take a secondary chemical test.
Was not charged with any previous DUI offense The DUI charge does not include a homicide and there was not a child in the vehicle. Must not be under the influence of controlled substances alone. Must plead guilty to DUI or be found guilty of DUI. Must waive the DMV administrative hearing.
