By LINDA HARRIS
The State Journal
CHARLESTON, W.Va. — Last month Siera Burgess, a 26-year-old Lincoln County mother of three, allegedly mixed alcohol with benzodiazepines, then got behind the wheel of her car with kids in tow. Her car crossed the center line on I-64 in Milton, crashed into another vehicle and then was hit by a tractor-trailer. Her two youngest, a 3-year-old boy and a 1-year-old girl, were dead at the scene; their 7-year-old sister suffered minor injuries.
(Photo by Bishop Nash)
Burgess herself had to be airlifted and required emergency surgery. She’s currently being held in Western Regional Jail in lieu of a $2.5 million cash-only bond, awaiting trial on two counts of felony DUI and a third count of DUI causing injury.
“You really can’t put a value on the loss of lives,” said Bob Tipton, director of the West Virginia Governor’s Highway Safety Program. “That kind of stuff happens almost weekly, biweekly, where someone is killed — either they’re drunk and kill themselves or they end up killing someone else. Our numbers are down; this year we’re estimating about 70-75 fatalities. But when you multiply that by the number of serious injuries, you can see there’s a huge financial number that goes along with it.”
“Just this past weekend there were at least two incidents — fatalities — with drivers believed to be impaired,” Tipton said. “We’re still waiting for the test results, but (police) do suspect drugged driving.”
No defense
Generally speaking, anyone caught driving with a blood alcohol content (BAC) of .08 will be charged with DUI in West Virginia. If that BAC is .15 or higher, it’s considered an aggravated offense. Each carries criminal, as well as administrative, penalties.But drivers with a BAC of just .05 also can be charged, DMV General Counsel Adam Holley points out. While .08 is considered legally drunk, “anything over .05 is relative evidence of impairment.”“We see a few each year who get charged with a BAC level below .08 but above .05,” Holley said, adding it’s easier to challenge and potentially overthrow cases for lower levels. “A BAC of .08 is the threshold where there is no defense to it.”
The standard of proof is much lower on the administrative side. The DMV’s focus is on whether the officer had probable cause to believe the driver was operating a vehicle under the influence and whether the arrest followed proper procedure in administering field sobriety and breathalyzer tests, not whether the charge can be proven beyond a reasonable doubt. That doesn’t leave much wiggle-room for offenders, particularly those with a BAC of .08 or higher.
“I don’t want to imply we’re unfair; that’s certainly not the case,” Holley said. “But the reality is, if you’re guilty of impaired driving, it is very, very difficult to have an outcome at an administrative proceeding other than you’re guilty of impaired driving. Fortunately, most folks don’t even ask for an administrative hearing — they receive a letter from DMV advising them of their license revocation or Interlock requirements, and they just fulfill the requirements.”
Holley said only about 15 percent of drivers charged with drunk or drugged driving request a hearing.
“Most of the folks who ask for a hearing don’t go through with it; they withdraw their request,” he said, adding that drivers sometimes use the appeals process as a “mechanism to delay license revocation and other penalties.”
“Typically, only 25 percent of the people who ask for a hearing go forward with it,” he said.
Enhanced training
The bright spot in West Virginia’s impaired driving numbers is that alcohol-involved fatalities are declining: Just five years ago there were 93 DUI-related deaths; in 2015, just 71.Tipton said about 26 percent of all highway fatalities in West Virginia involve alcohol.“It’s still an issue, but it was quite a larger number in the past,” he said. “We’ve substantially lowered our alcohol-related fatalities and percentages over the last six or seven years — the year before last, 2015, was the lowest (number of fatalities) we ever had in West Virginia. Last year we were only up two.”
But while alcohol-involved arrests and deaths are declining, drugged driving is increasing at an alarming rate — going from about 4 percent to nearly 34 percent last year.
“The number of drug-impaired drivers reported to us has increased significantly over the past five years,” Holley said. “I think the problem probably predates the reporting, but our officers have received a lot of training over the last five years. They’re better able to detect it and articulate it and report it to us.”
Holley said drivers taking prescription medications that impact their ability to think clearly and react to changing situations are as guilty of driving impaired as those driving with illegal drugs in their system. First offense drugged driving brings a minimum 90-day license revocation. Those offenders also are required to complete the safety and treatment program and pay the license reinstatement fee.
Tipton figures the higher reporting rate has a lot to do with the state’s ongoing emphasis on equipping officers to recognize a drug-impaired driver. So far, about 31 officers across the state have been certified as Drug Detection Experts, and most, if not all, other officers have undergone additional training over the past six years to detect drugged drivers.
“Just this past weekend we had at least two incidents, two accident fatalities believed to be drug-related, with impaired drivers,” Tipton said. “We’re still waiting for the test results, but police suspect drugged driving in both.”
West Virginia State Police First Sgt. Jay Powers said the enhanced training has made it easier for police to spot a drug-impaired driver.
“In the past, a lot of times officers didn’t know what they were dealing with,” said Powers, one of the state’s Drug Recognition Experts. “Now we’re able to detect it. We look at how people act, if they’re fidgety or if they’re very slow in their movements. We look at their eyes — the eyes tell you a lot about what might be in their system. … Are their pupils dilated, are they constricted or normal, how do they react to light? A lot of times people think drugged driving is illicit drugs, but that’s a misconception. Just because you have a prescription for a drug doesn’t mean you’re OK to drive.”
West Virginia State Police First Sgt. C.K. Zerkle said drugged driving has proven to be more prevalent in West Virginia’s southern counties, though that doesn’t mean it’s not a problem throughout the state. Those caught driving under the influence with young children in their vehicle or who put other motorists at risk likely will face additional charges, he said.
“Police are learning how to charge people with more stuff, and the courts are trying to really hammer them,” Zerkle said. “We have a case we’re investigating in Welch where a man believed to be under the influence of an unknown controlled substance crossed the center line and hit someone head-on. The other driver, a 78-year-old woman, lost her life.”
Powers said police “enforce what the code says,” then leave it to the courts and the Office of Administrative Hearings to handle the disciplinary side.
“There’s a percentage who are going to drive no matter what,” he adds. “They’ll drink or take drugs and still try to drive. But there’s also a percentage of the population that one time is all it takes — if they get caught once, it’s going to scare them.”
Holley points out that drivers taking prescription medications which impact their ability to think clearly and react to changing situations are as guilty of driving impaired as those driving with illegal drugs in their system.
“There are folks killed every year by (impaired) drivers,” he said. “We try to prevent it; that’s what we work for. We want to have zero fatalities from impaired drivers, and every time it happens, it’s heart-wrenching. When you have an innocent victim, which you often have in these cases, it’s horrific, and you don’t want to think about (ever) being in that situation. It’s a real motivator when you can lower the fatality rate every year, which we’ve been able to do through enforcement.
“But I’ll tell you, there are a lot of deaths that don’t get reported — that’s the drivers themselves. In the past six or seven years we’ve had 118 individuals who requested a hearing to dispute a DUI who died before their administrative hearing. Not all of them died in car accidents — some die of cirrhosis, some by overdose or suicide or other incidents related to their addiction — but we want to stop those as well; we want to protect people from themselves.”
Quality vs quantity
Teresa Maynard has been in the eye of the storm since September.As director of the Office of Administrative Hearings and chief hearing examiner, it’s Maynard’s job to make sure administrative appeals are heard in a timely fashion — no small task, since she inherited a 3,500 — case backlog when she took office. It was a contentious issue during the 2017 legislative session, with Senate Judiciary Chairman Charles Trump, R-Morgan, calling for dissolution of the administrative appeals process. The effort failed, but that doesn’t mean the Office of Administrative Hearings is taking anything for granted.“We’ve put in a lot of extra time trying to get the older cases out, prioritizing them and making the process more efficient,” said Maynard, a former Mingo County prosecutor. “We’ve also encouraged our hearing examiners to monitor the number of continuances they grant — some of the cases, particularly the older ones, have already been continued 10, 12 times at the request of one attorney or sometimes both.”
“I know folks don’t necessarily like what we are doing, but we are applying the law as it is written now,” she said. “If the law changes, we’ll change (how we apply it).”
Maynard said they’ve addressed about 1,000 of the backlogged cases. She said she’d like to take care of the remaining backlog — about 2,500 cases — within the next six to nine months.
“I didn’t think (eliminating the administrative division) was necessary,” she said. “There was a similar push in the Legislature last year. That’s kind of the reason I came in when I did — to resolve some of the issues that were raised, the backlog. I think we’ve been successful doing that so far, and I felt like we should be given an opportunity, another year, to see where we are.
“I think the backlog will be resolved in another year — we’ve got to work on it, but at the same time we can’t sacrifice the quality of work we do. We can’t sacrifice quality for quantity, just because we want to get order.”
Costly mistake
Offenders who waive their rights to an administrative hearing can avoid a license revocation by signing up for Interlock, commonly called “blow-and-go,” which has resulted in a lot more of the devices in West Virginia vehicles.Interlock is an electronic device installed in a vehicle’s ignition system that prevents it from starting if the driver has been drinking. It’s an expensive proposition: There’s a $100 application fee, a $75 installation fee and a $40 de-installation fee, plus a $3 per day rental for the Interlock unit. It can’t be removed until the offender completes a minimum six-week, 18-hour driver safety and treatment program. That costs several hundred dollars more. Drivers also must pay a $50 reinstatement fee. An offender’s involvement can be extended if the counselors feel additional education and treatment are warranted.Those who opt for an administrative hearing and lose face a 15- to 45-day hard-time license revocation, depending on their BAC. They’ll still have to do Interlock, complete the driver education course and pay the reinstatement fee. Drivers who opt against installing Interlock face a six-month license revocation for basic DUI. Likewise, those who refuse a breathalyzer test for first-offense DUI face a one-year revocation, though their driving privileges can be restored after 45 days if they sign up and are approved for Interlock.
Those charged with aggravated DUI can expect to be on Interlock at least nine months and spend more time in the driver safety and treatment program.
“In an administrative proceeding, there’s things that come out that don’t come out during the criminal hearing because the burden of proof is a whole lot different,” said Transportation Supervisor Harry B. Anderson, the state’s impaired driving coordinator. “You can go into court on first-offense DUI and plead it down.”
But when you argue in an administrative appeal, “it’s facts only; you can’t plead down,” he said. “You’re either innocent or you were driving under the influence.”
First-time drugged offenders also may be eligible for a deferral program, which allows offenders to have their criminal records expunged after a year if they complete the Interlock program and don’t reoffend.
“But on second or (subsequent) alcohol-related DUI, the only way to restore driving privileges is through Interlock,” Anderson said, adding that most drivers choose to blow-and-go even with a first offense. “To put the numbers in perspective, when I came here in late 2002, we had less than 400 people on the Interlock program; now we have about 4,400.”
Holley said most drivers charged with DUI “take their medicine and move on with their lives.”
“Losing driving privileges is sometimes perceived as a punishment, but we don’t see it as punishment,” Holley said. “Our goal is to protect the public and try to keep that driver from repeating the conduct that put the public in danger in the first instance.”
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