WV DUI Drug Bill – Part II

We at The Wagner Law Firm, West Virginia’s Premier DUI Defense Firm, strive to constantly provide to inquiring citizens the most up to date, relevant information on the DUI laws of West Virginia and related driving under the influence topics and happenings both in West Virginia and across the nation.

Owner and founder of The Wagner Law Firm, West Virginia DUI Defense Attorney, Harley O. Wagner, is the West Virginia contributor for DUINewsBlog.org, the nation’s finest DUI blog site.

First, an important clarification: I recently wrote an article for DUINewsBlog.org titled New ‘DUI Drug Bill Passes.’ This article centered around the recent passage of an important piece of legislation as related to the DUI laws of the State of West Virginia, House Bill 2513, also known as “The DUI Drug Bill.” In that article I set forth the key highlights of the Bill and how it effects forthcoming changes in the DUI statutes of West Virginia, particularly as to citizen’s rights and consequences of being arrested and charged with driving under the influence of a controlled substance or drug.

One of the highlights I set forth was that if a citizen is arrested for driving under the influence of a controlled substance or drugs, and upon request for a sample of his or her blood, the citizen refuses that he or she could lose their license for one (1) year. It has since come to my attention in the days since I wrote this article that the West Virginia legislature pulled this aspect of the Blll at the last minute, or conversely, right prior to passage. This language was in the final draft of the Bill I wrote about; however, it was removed prior to formal passage. (All remaining aspects of said article and content are fully accurate and can be read as such.)

So, to be clear, a citizen accused of driving under the influence of a controlled substance or drugs who rightfully refuses to consent to the drawing of his or her blood for testing does notface additional license consequences for exercising this constitutional right.

This is especially enlightening given the recent landmark United States Supreme Court ruling in Missouri v McNeely, where our country’s highest court affirmed and upheld the Supreme Court of Missouri, which held that in order to obtain blood from a citizen accused of driving under the influence of a controlled substance or drugs that the arresting officer first need to procur a warrant to do so, and that said warrant need to be based and grounded in probable cause, as determined by a governing judge, before being issued.

Should the West Virginia legislature have left that aspect of this new DUI legislation in effect, it would have been on its face unconstitutional. For you cannot punish in the United States of America a citizen who is simply exercising his or her Bill of Rights, one of which is the right against self-incrimination.

Which, provides a perfect segway into a component of this new DUI Drug Bill that did remain contained in the Bill and did get passed by the West Virginia legislature that I am equally confident if and when applied by a West Virginia magistrate or circuit judge will be struk down as unconstitutional.

17C-5-7 of the West Virginia Code -Refusal to submit to tests; revocation of license or privilege; consent not withdrawn if person arrested is incapable of refusal; hearing- has been amended to add a (d) sub-section that shall now read: The refusal to submit to a blood test may be admissible at the court’s discretion in a trial for the offense of driving a motor vehicle in this state while under the influence of alcohol a controlled substance or drug or the combination of alcohol and drugs.

Should a prosecuting authority be permitted by a magistrate or circuit court judge to argue and present to a jury the fact that a citizen refused to consent to having his or her blood drawn without a warrant and that in doing so the citizen refused because of a consciousness of guilty and thus was trying to hide something and/or knew the blood result would show his or her guilt, would be an immediate grounds for a mistrial or if necessary, subsequent appellate overturning for a new trial of any conviction obtained.

The United States Supreme Court, in Missouri v McNeely made clear that a citizen has an absolute constitutional right to refuse blood being taken from their person without a warrant, and to allow a prosecutor to argue the exercising of this constitutional right to a jury as somehow a consciousness of guilt would be immediate grounds for a mistrial and if necessary an appellate overturning of any conviction or finding of guilt obtained at trial.

The landmark United States Supreme Court case of Missouri v McNeely, is going to have similar such reprocussions and rippling effects all across this country, partuclarly in state’s that criminlize the refusal of chemical testing and/or have practices in place for warrantless blood draws on citizens accused.

The fight to proect the citizen accused’s constitutional rights and the ability to have a fair and impartial trial before a jury of his or her peers, is a never ending one, particularly when discussing the most politicized crime and area of law in the United States of America: Driving Under the Influence. Politicians, Judges, M.A.D.D. and in large part the public, are so often willing to sacrifice these sacred principles and rights in some misguided attempt or notion of convicting the citizen accused at all costs.

Rest assured, in West Virginia, and at The Wagner Law Firm, DUI Defense Attorney, Harley O. Wagner, shall continue to stand daily between these parties and the accused citizen, as will each and every one of the highy talented, committed DUI Defense Attorney contributors at DUINewsBlog.org from coast to coast.