I had the pleasure of a former client joining me today on my monthly radio show. In case you haven’t had a chance to tune in, you can join us on the third Wednesday of every month on WAJR FM in Clarksburg, 103.3. If you are outside of the listening area, you can still hear the show by going to the radio station’s website, www.wajr.com and clicking the “Clarksburg Listen Live” button in the page banner for streaming audio and video.

The show today focused on a 2006 arrest in Preston County, West Virginia, in which my client was charged with seven different counts – 2 counts DUI resulting in bodily injury, 2 counts leaving the scene of an accident with property damage, 1 count of reckless driving, 1 count of failure to render aid, and 1 count of no proof of insurance. In the end, my client, Bob, entered a plea to the charges of reckless driving and no insurance and the other charges were all dismissed. As well, the WV DMV license suspension hearing went in our favor with a finding that the arresting officer’s evidence was insufficient to lead to suspension of Bob’s license, so that case was dismissed altogether.

Bob’s case was won because he had favorable facts and he had the commitment to fight the case with the resources I needed to help him succeed. Our work enabled us to establish that there was no legitimate evidence of alcohol impairment and the State ultimately agreed that its case was not able to be proven.

Bob and the 3 employees on his work crew had been in Preston County for a few weeks working on a major ventilation project. His employer is a company that specializes in HVAC work, sheet metal work, and fabrication. They wrapped up the job around 8 pm in mid-December 2006, and stopped for dinner in Kingwood. At dinner, Bob drank 2-3 beers out of two pitchers the crew had ordered. Each pitcher was the equivalent of 4 beers. After they left the restaurant around 10 p.m., they went to a nearby bar because the men wanted to play pool and relax a little after what had been a near constant three weeks of work. At the bar, Bob asked the bartender put on a pot of coffee which he drank entirely by himself. He did not have any more alcohol. They left around 2 a.m. to find a hotel in the Morgantown area prior to heading to Ohio to start a new job the next day.

All three crew members testified that Bob appeared to be sober at all times and that he did not drink anything further after dinner. Because it was a business trip, all the expenses were documented and we had receipts to back up the claims we made. The receipts were confirmed by the State during its subsequent investigation after we presented the evidence, and the employees at the two establishments were able to verify our assertions.

After leaving the bar, the men left in their two separate vehicles, with Bob and one man in Bob’s truck and the other two in their truck. The other two stopped to get coffee for the road and Bob and the one worker headed towards Morgantown.

Heading just out of Kingwood in a no passing area on Rt. 7, a car sped up behind Bob’s truck, swerved around him, and abruptly cut back in, clipping Bob’s fender then speeding off. Bob, admittedly angry about what had just happened, sped up to try to get a license plate number. In his sole unlawful act of the night, he got up very close to the rear of car and stayed there to get the license and, probably, to be a little intimidating. Without any warning, the driver of the car slammed on his brakes causing Bob to collide with the rear of the car. The car spun off the road into a yard and Bob lost control of his truck and crashed into the front of a gas station, substantially damaging his truck. His passenger hit his head and was a little disoriented, but otherwise was okay. In order to exit the truck, Bob had to move it about 3 feet to get the trapped doors free and was still only able to open his driver’s door as the passenger door was too heavily damaged.

The police arrived shortly thereafter and conducted their investigation based on the information available to them at the scene. After Bob was arrested, he was processed and blew a .103 on the breath tester at the police station. Interestingly, the driver of the other car was never charged with any offense, nor was he investigated for any potentially unlawful conduct. Interestingly, his blood was never checked to determine if he may have been under the influence of alcohol.

Through our investigation of the case, we were able to show through paint analysis that paint from the other car was located on the driver’s side front fender of Bob’s truck, an area where the impact could have only occurred with the other driver essentially side-swiping Bob’s truck as he passed. Our accident reconstruction expert verified that paint was consistent with Bob’s version of events and confirmed that the later impact was a direct rear-end impact, again just as Bob reported had been the case.

We further established that Bob suffered from acid reflux and had an expert witness testify as to how that condition caused his BAC reading to be over the legal limit. That expert further showed through an accepted process of modeling how Bob’s alcohol consumption and the timeline involved that night led to a conclusion that Bob’s actual BAC could not have exceeded .04 at any time of the night, meaning he was always presumptively sober according to West Virginia’s impaired driving statutes.

In the end, a combination of factors came together to help Bob get to the right conclusion in his case. The other charges were dismissed because our evidence showed he did not leave the scene of any accidents that night, but rather that his own crash after impacting the car was nearly immediate and that he clearly had not “left” the scene. The other leaving the scene charge came about because he had moved his truck just enough to get himself and his passenger out of the truck. There was no evidence that he was trying to leave the area and the damage level to his truck clearly made that an impossibility.

The charge of failing to render aid stemmed from the alleged injuries to the other driver and the fact that Bob did not offer assistance. Obviously, because he was involved in his own process of crashing, Bob could not have stopped to help the other driver. In fact, the police arrived almost immediately after Bob and his passenger had exited the truck and so he had no opportunity to even think about going to check the other driver before he was in police custody.

Ultimately, a closer inspection of the facts showed that the only real offenses that night were reckless driving and the no insurance. His insurance had lapsed approximately two days prior because the payment was late, but his coverage was reinstated just days later. However, during the time that mattered, it was lapsed even though just temporarily. The failure of the police to take any action against the other driver remains a frustration to this day because his actions led to the entire series of events that night. But, the final result was fair and showed the importance of never just assuming a case is hopeless.