House of Delegates Votes to Reopen DUI Loophole

With no shame and dissent from not even a majority of the Republicans, the House of Delegates voted on Monday to pass HB 4308, which would reopen a loophole in West Virginia's DUI law that the state Supreme Court closed last year. Click here and scroll to the bottom of the page for the vote.

This bill would allow a person who pleads no contest to a DUI in criminal court to contest the revocation of his or her driver's license at an administrative hearing before the DMV. The administrative hearing is a civil matter and carries a lower burden of proof than the criminal case. Under current law, a conviction for a DUI is binding upon the DMV and there may be no hearing, as the same facts have already been proven in a court of law. The DMV may, however, revoke a person's license for DUI at a civil administrative hearing based upon a preponderance of the evidence--rather than proof beyond a reasonable doubt--even in the absence of a conviction on the criminal charges.

Allowing a person who has been convicted of a DUI via a no contest plea both stands the law on its head (the underlying facts in support of the license revocation have already been proven in another venue under a tougher burden of proof) and will endanger public safety by allowing drunk drivers who know how to play the system to remain behind the wheel. The best DUI defense lawyers know how to make the proper arrangements for the arresting officer to not appear at an administrative hearing, which results in a default ruling for their client.

Prosecutors want convictions in court; many DUI defendants just want to keep their driver's license. Thus, a symbiotic relationship forms, perverting our legal system and neutering the most substantial penalty for a drunk driver not facing a felony charge--the loss of a driver's license and a mandatory 6-month jail sentence if he or she drives while his or her driver's license is revoked for DUI. Subpoenas to appear at hearings go undelivered, an unplanned vacation day is offered to the officer after a few well-placed phone calls, or an officer is sent on an out-of-town assignment without notice to the DMV. In any of those cases, the defendant--even one who has pleaded no contest to the criminal charge, if HB 4308 passes--wins and keeps his or her driver's license as if he or she were not guilty.

Unfortunately, this bill will probably also pass the Senate.