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									                                                        PROSECUTING ATTORNEYS INSTITUTE
                                                      TRAFFIC SAFETY RESOURCE PROSECUTOR




         Volume 3 Issue 1
          January 2006
                                    HOT SHEET
                                     BLOOD DRAW SEARCH WARRANT APPEAL DENIED
 90 MacCorkle Ave, SW
        Suite 202                     The West Virginia Supreme Court of Appeals has denied an appeal from the
  South Charleston, WV
         25303
                              Circuit Court of Lewis County contesting the use of a search warrant to obtain a blood
      304-558-3348            sample from the defendant in a DUI case. State v. Jerry K. Walls, II – No. 051633,
                              Denied November 3, 2005 in a 4-1 vote [Benjamin. J.]. The defendant was charged
    Resources                 with DUI Third Offense, Driving Revoked for DUI and DUI with a BAC of .10 or
                              higher.
                                      Walls, arrested April 9, 2004, had refused the Intoxilyzer test twice after
Mark M. Neil
Traffic Safety Resource       having also failed all three field sobriety tests and the PBT. A search warrant for his
Prosecutor                    blood was obtained and his blood was drawn at a local hospital. The defendant sought
mneil@state.wv.us             to suppress the results of the blood test results, which was denied by the Hon. Thomas
                              Keadle, Circuit Judge. Walls entered a conditional guilty plea to the DUI Third
Philip W. Morrison, II        Offense and Driving Revoked for DUI with the understanding that should the
Executive Director
                              Supreme Court of Appeals reverse the Circuit Court’s ruling regarding the
pmorrison@state.wv.us
                              admissibility of the blood test results Mr. Walls could withdraw his pleas.
                                      The sole assignment of error in the case was whether the circuit court had erred
                              in denying the defendant’s motion to suppress blood test results from blood forcibly
    Web Sites                 obtained from him pursuant to a search warrant following his arrest for DUI and
                              refusal to submit to an Intoxilizer breath test. Specifically argued in the Petition for
West Virginia Prosecuting
Attorneys Institute
                              Appeal was the case State v. McClead, 211 W. Va. 515, 566 S.E.2d 652 (2002), a per
www.wvpai.org                 curiam opinion which contains a comment that search warrants for blood are not
                              authorized by W. Va. Code §17C-5-7. Many defense attorneys have argued that this
National Highway Traffic      is authoritative precedent prohibiting search warrants for blood.
Safety Administration                 This is at least the second case in which the Supreme Court of Appeals has
www.nhtsa.dot
                              refused to hear the issue. The first was State v. Kimberling – No. 031510, Denied
National District Attorneys   October 29, 2003, 3-2 [Davis. J., Maynard. J.]. This case arose out of a somewhat
Association /                 similar situation as Walls out of the Circuit Court of Putnam County. The Hon. O. C.
American Prosecutors          Spaulding authored a thirty-three page memorandum order in that case setting forth
Research Institute            reasons why search warrants for blood in are permissible. A copy of this memoran-
www.ndaa-apri.org
                              dum order can be obtained from the Prosecuting Attorneys Institute.
Governor’s Highway
Safety Program
www.wvdot.com                               UNITED STATES LENIENT ON BLOOD ALCOHOL

WV State Police                      The United States still has one of the most lenient drunk-driving standards in
www.wvstatepolice.com         the world at .08 percent; in Sweden it is .02 percent and in Japan it is .03 percent, for
WV Division of Criminal
                              example. The standard is zero in the Czech Republic and Slovakia. A number of
Justice Services              countries have a DWI standard of .05 percent BAC, including Australia and at least 10
www.wvdcjs.com                European countries.
         DUI DEFENSE                               TRAIN THE TRAINERS A SUCCESS
      TACTICS UPDATE
Information recently obtained
from some of the state’s lead-
                                              Twelve in-state and four out-of-state attorneys recently completed the
ing DUI defense attorneys            TRAIN THE TRAINERS course presented by the West Virginia Prosecuting
reveals a variety of potential       Attorneys Institute. The course, held this past November at Lakeview
defenses that may be raised in       Resort, is an intensive program instructing experienced prosecutors on how
the future.                          to train and critique trial advocacy methods.
INTOXIMETER: (1) If the
suspect blows three insufficient
breath samples, the instrument
times itself out and no reading
is given. Unlike the older
Intoxilyzers that showed an
insufficient sample, the new
instrument does not give the
result. One attorney argues that
because the instrument gives no
reading, he is entitled to argue
that the result is zero (0.00%)
because of the presumption of
innocence. That’s kind of like
arguing that because there were
no fingerprints found at the
scene of the crime the
defendant could not have done
the crime;
(2)     Because there is no                  The twelve in-state participants were: Timothy Bogges (APA-Mercer
accuracy inspection test form        Co), Steve Connolly (APA-Putnam Co), Sean Francisco (APA-Wood Co),
as there was with the older          Betsy Giggenbach (APA-Berkeley Co), Sean “Corky” Hammers (APA-
Intoxilyzer, the defense argues      Cabell Co), Todd Houck (PA-Wyoming Co), John Hoyer (WV State Police
that there is no quality control
and the results should be
                                     counsel), Shannon Jones (APA-Randolph Co), Lynn “Otis” Nelson (PA-
suppressed. The quality con-         Mineral Co), James “Jay” Shay (APA-Preston Co), Shawn Turak (APA-
trol is built into the instrument    Ohio Co) and Patrick Wilson (PA-Marion Co). Also completing the course
in the form of the dry gas cylin-    were Leah Austin and Patrick Nadolski, both Assistant DAs in Monroe, NC,
der. The benefit of dry gas is       and Christie Floyd and Jennifer Wilcox, both Assistant Commonwealth’s
that is stays constant over time
versus the old wet solution the
                                     Attorneys in Louisville, KY.
degraded over time and had to                Faculty for the course included the following: Chris Chiles,
be checked and replaced peri-        Prosecuting Attorney of Cabell County, who served as lead faculty;
odically;                            Christopher Arnt, Assistant District Attorney for Lookout Mountain Judicial
(3)The lack of a printed ticket      Circuit in Georgia; James K. Dickinson, Deputy Ada County Prosecutor,
for the driver causes defense
attorneys heartburn as well.
                                     Idaho; Janice L. Frost, Deputy City Attorney for the City of South Salt Lake,
The Intoximeter is programmed        Utah; Nancy Johnson, Senior Assistant Solicitor General, Richmond County,
to print out only one result         Georgia; Mark A. Sorsaia, Prosecuting Attorney of Putnam County, WV;
ticket, unless prompted to print     Philip W. Morrison, II, Executive Director of the Prosecuting Attorneys
additional copies.                   Institute; and Mark M. Neil, Traffic Safety Resource Prosecutor.
4) Intoximeter manuals and
training materials are still being
                                             The Train the Trainers course has recently undergone revisions by a
demanded;                            national training committee and West Virginia was only the second state in
(5)     Computer source code         the country to host the training since the revisions were made. There was no
requests.       In some states       cost for the course and expenses for lodging, travel and per diem were paid
defense attorneys have               through funds obtained from the National Association of Prosecutor
demanded the manufacturer’s
source codes for operation of
                                     Coordinators, the National Highway Transportation Safety Administration,
the computerized portions of         the WV Governors Highway Safety Program and the WV Commission on
                                     Drunk Driving Prevention.
        (Cont next page)
   (Cont. from previous page)                                CASE LAW UPDATE
the instrument. (They have
nothing to do with whether the
instrument is in proper working                      Defense Attorney Conflict of Interest
condition or the results are
correct, but defense attorneys      State ex rel. Blake, Prosecuting Attorney v. Hatcher, et al., No. 32747,
have convinced judges in some
states that they must have them
                                    Filed November 18, 2005. The West Virginia Supreme Court of Appeals has
and failure to obtain them          ruled that the State, through a prosecuting attorney, has standing to move for
should result in suppression of     disqualification of defense counsel in a criminal proceeding in limited
the breath alcohol test results.    circumstances where there appears to be an actual conflict of interest or
The source codes are                where there is a significant potential for a serious conflict of interest
proprietary information owned
by the manufacturer and are not
                                    involving defense counsel’s former (or current) representation of a State
within the knowledge and con-       witness.
trol of the state. The manufac-             A presumption in favor of a defendant’s choice of counsel exists and
turer simply will not disclose      the State bears a heavy burden of proving disqualification is necessary and
them.                               justified. Where the issue of a conflict of interest is raised, the court is to
SFST (Standardized Field
Sobriety Tests): The defense
                                    hold a hearing to afford the State, the defendant and the State’s witness an
bar seems to be moving away         opportunity to present evidence regarding their competing interests.
from attacking the validity of
the tests themselves and                                        Pro se Defendants
looking more at whether or not
the tests were conducted within
the guidelines established by
                                    State v. Sandor, III, No. 32663, Filed December 1, 2005. The Court set
NHTSA. The norm that seems          forth additional guidelines for sustaining convictions of defendants who
to be emerging around the           proceed pro se in their criminal trials. A new syllabus point provides that
country is whether the tests        “when an accused chooses to proceed without the assistance of counsel, the
were conducted in “substantial      preferred procedure is for the trial court to warn the accused of the dangers
compliance” with NHTSA
standards.
                                    and disadvantages of self-representation and to make inquiries to assess
ADMIN. HEARINGS:                    whether the accused’s choice is knowing, intelligent and voluntary. In the
Because of changes brought          absence of such a colloquy, a conviction may be sustained only if the totality
about by case law, defense          of the record demonstrates that the accused actually understood his right to
attorneys are now seeking to        counsel, understood the difficulties of self-representation, and still
delay the criminal trial as long
as they possibly can in hopes of
                                    knowingly and intelligently chose to exercise the right to self-
resolving the DMV administra-       representation.”
tive license hearing. This tactic            This case arose out of a misdemeanor conviction in circuit court
may also prevent the officer        following an appeal from magistrate court
from consulting with the prose-              The Court did agree with the State that such a colloquy was not
cutor prior to testifying in the
administrative hearing where
                                    required by the State or federal constitution so long as the defendant’s
they can be locked into a           conduct and other evidence of record made it clear that the defendant knew
position or testimony without       of his rights and of the risks but chose self-representation.
the benefit of an attorney repre-
senting their side.        Some
defense attorneys have sug-           WARNINGS THAT SHOULD BE ON ALCOHOLIC BEVERAGES
gested trying to keep the record
open after an officer has
                                    WARNING: The consumption of alcohol may cause you to tell your friends over
testified and then submitting
                                         and over again that you love them.
evidence essentially ex parte at
a later date where the officer
                                    WARNING: The consumption of alcohol may cause you to think that you can sing.
does not appear. One attorney
has even suggested trying to
                                    WARNING: The consumption of alcohol may create the illusion that you are
make use of depositions. The
                                         tougher, smarter, faster and better looking than most people.
DMV legal staff is looking into
whether or not depositions can
                                    WARNING: The consumption of alcohol may lead you to think people are laughing
even be used at the hearings.
                                         WITH you.
MARK YOUR CALENDAR
                                                        OOPS, WE GOOFED
                                                §17C-15-46 CHILD RESTRAINT LAW
WINTER PA MEETING
February 2—4, 2006                         The last issue of the Hot Sheet incorrectly stated West Virginia’s
Embassy Suites                    child passenger safety law. The old statute was described in the article
Charleston, WV                    rather than the amended version.
                                          The amendment, which went into effect earlier this year, provides
SUMMER PA MEETING                 that every driver who transports a child under the age of eight years in a
June 15—17, 2006                  passenger automobile, van or pickup truck other than one operated for hire,
Snowshoe, WV                      shall, while such motor vehicle is in motion and operated on a street or
                                  highway of the state, properly place, maintain and secure such child in a
                                  child passenger safety device system meeting applicable federal motor
                                  vehicle safety standards. If the child is under the age of eight and is at least
                                  four feet nine inches tall (4’ 9”), a vehicle seat belt is sufficient to meet the
                                  requirements of this section.
                                          The child passenger safety law is a primary offense, allowing
                                  police officers to make a traffic stop solely for that purpose, as opposed to
                                  adult safety belt laws which are secondary and may not be used as the
                                  basis for a stop.




                90 MacCorkle Ave SW
                Suite 202
                South Charleston, WV 25303




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