An Open Letter to the West Virginia House of Delegates

Dear Delegates:

My name is Harley Wagner. I come to each of you first and foremost as a birth citizen of West Virginia, a husband, a father of two young sons, a taxpayer and a lifelong resident of Berkeley County and the eastern panhandle. Secondarily, I come to each of you as a licensed attorney in West Virginia and 20 year practicing member in the West Virginia criminal justice system.

An Open Letter to the West Virginia House of DelegatesI wanted to take a moment of your respective time to ask that each of you please support Senate Bill 534, sponsored by many republicans and democrats in the senate, that will eliminate West Virginia administrative hearings on DUI cases, and in turn not only save our state millions of tax payer dollars that can be used elsewhere on our roads, bridges, teachers, law enforcement equipment, and other important statewide needs; but also, will create a far more efficient, fair and consequential system in our state’s handling of DUI cases. In short delegates, this Bill is good for West Virginia.

This Bill, which passed the Senate today 24-10, if enacted into law, will create a “one tier” system on a DUI case where all issues, criminal and administrative license penalties, will be handled in the criminal court jurisdiction, like many other states currently have in place such as Illinois, Indiana, and Kentucky to name just a few. It is anything but “soft” on DUI cases. Please do not be misled by inaccurate and false information concerning this Bill. Please read it. Please educate yourselves. Please ask your fellow colleagues about it. Please do not fall prey to false propaganda by those with personal agendas or otherwise.

The current system is beyond broke my friends. The current system has many citizens charged with DUI lawfully driving for 3-4-5-6 years post arrest before any suspension action is levied against the citizen. Senate Bill 534 would address the suspension of a citizen’s driver’s license right away post arrest at arraignment before the Magistrate on the overwhelming majority of DUI charges; and further, in such instances, the license would stay suspended until the citizen was acquitted in the criminal court or had their case dismissed, or completed the duration of the suspension period. For instance, a citizen that refuses chemical testing would have their license taken immediately not months/years later as the current system affords. All injury level DUI’s, all felony level DUI’s, as well as any involving a minor in the vehicle would also have their license taken right away while the criminal court plays out. Again, not 3-4-5 years later, while lawfully driving the entire time.

All current interlock and license suspension penalties not only remain in place but on the more serious level DUI charges, this Bill makes such suspension periods even more exacting and penal in nature and in turn immediately consequential to the citizen accused, not years later.  The only license suspension discretion a Magistrate and Prosecutor would have under this Bill would be on the lower level first offense misdemeanor DUI charge as to whether or not to seek immediate license suspension or to await the criminal court proceedings to play out. If convicted by a jury or if the citizen pleads guilty, the citizen then receives the underlying license suspension penalty. The current system presents numerous scenarios where there is no action for years post arrest. This Bill eliminates that.

Further, with the 2010 creation of the West Virginia Deferral Program, that calls for the citizen to waive their right to an administrative hearing, and that of the 2014 creation of the new Interlock law allowing a citizen to forego an administrative hearing and go directly on to interlock, the amount of administrative hearings annually held statewide has dramatically lessened but yet the costs our state government has incurred to hold these hearings has dramatically increased. Say that out loud to yourself. Of additional note, the overwhelming majority of statewide law enforcement, prosecutors and magistrates know and appreciate how badly broken this current system is and how desperately in need of being fixed it is. Senate Bill 534 goes a long way to accomplishing this and therein presents a far better model for the handling of DUI cases in West Virginia than the current one.

On top of it all, the current system has absolutely no semblance of due process or fairness to the citizen accused my friends. Multi page police reports, hospital records, accident reports, hearsay witness statements, on and on now all get to be admitted into the administrative file weeks in advance, pre-hearing, and with the presumption of all being fully accurate and reliable without any foundation needing to be laid for their admittance or reliability. Thus, the citizen walks into these hearings (often times years later) presumed guilty with the  burden being then being unlawfully placed on the citizen to prove their innocence.

In fact, just this morning, I had an administrative hearing on a four year old case with an empty chair, absent arresting officer, and to which was dismissed in the criminal court three years ago. That’s right, an empty chair. I cannot tell you the amount of times this has occurred on my personal watch and that of my colleagues around this state and the citizen still gets their license taken from them. In these instances, the citizen does not get to have their counsel cross examine their accuser. They do not get to challenge the work product of the officer, their administration of field tests, chemical tests, observation periods, nothing. No hospital personnel to cross examine nor hearsay witness statements with non-present witnesses, on and frightful example on. Zero fundamental due process to our fellow citizens. Zero fundamental fairness. All at taxpayer expense mind you.

This is not the system the West Virginia legislature ever intended nor created.

No one is pro drunk driving and no one supports drunk driving. However, all reasonable and fair minded citizens want their government to have in place laws that are efficient, consequential, fiscally responsible and encompassing of the intended purpose of the law enacted. Senate Bill 534, sponsored by republican Senator Charles Trump, democrat Senator Jeff Kessler, and a host of other conscientious and honorable public servants, is good for West Virginia and good for our criminal justice system.  It is far from “soft” on DUI and is more timely, more efficient and more consequential to the citizen accused, on top of saving our state millions in tax payer revenue to be applied elsewhere.

I urge each of you to please support this Bill for the reasons stated.

I thank you so very much for you time and consideration concerning this important piece of legislation.


Harley O. Wagner, Esq.