Manchin Endangers Every West Virginian with Decision to Relax Rules on DUI Hearings

Today's Charleston Gazette reported that the DMV, at the direction of Governor Manchin, has reversed course and is now granting administrative hearings to hear appeals of driver's license revocations of people who were convicted of DUI after pleading no contest.

This decision comes after the Legislature almost passed HB 4308 during this year's legislative session, but thankfully failed to give the bill the final passage it needed to go to the governor's desk. HB 4308 would have amended the DUI license revocation statute to allow those convicted of DUI after pleading no contest to have administrative hearings before the DMV to appeal their license revocations and potentially keep their driver's licenses. The most frequent cause of convicted drunk drivers prevailing at these hearings is the failure of the arresting officer to appear.

This issue is among several targeted by Massey Energy CEO Don Blankenship in his ...And for the Sake of the Kids campaign against numerous incumbent state legislators. Until the governor intervened, the DMV had been following its policy of automatically revoking driver's licenses of drunk drivers who were convicted after no contest pleas in the wake of a 2004 state Supreme Court decision upholding the practice. The 2004 ruling was a hard-fought win and has now been negated by the governor's intervention.

Allow me to take a few minutes to refresh you of the facts of this issue.

Under West Virginia law, when a person is arrested for DUI, the defendant is subject to both criminal proceedings in court and administrative proceedings through the DMV. The criminal proceedings will determine guilt under the criminal statute in which the burden of proof is for the prosecution to prove their case beyond a reasonable doubt. If convicted, the defendant will go to jail and pay a fine. The DMV administrative process will determine whether the defendant's driver's license will be revoked; here, however, the burden of proof is lower: a preponderance of the evidence (the side whose case is even slightly more likely than the other's will win) rather than proof beyond a reasonable doubt.

Since at least 1981, this two-track system has existed in West Virginia. The Legislature created this system because, in the past, many drunk drivers had been able to keep their driver's licenses by plea bargaining the DUI charges and keeping their driver's licenses in the absence of a DUI conviction. Following standards of due process protections that have passed judicial muster, the Legislature established the administrative license revocation system that permits a license to be revoked for DUI without the need for a criminal conviction. Today, there are about 2.5 times as many license revocations for DUI in West Virginia as there are DUI convictions.

A defendant in a DUI case may request a hearing to challenge the revocation unless he or she has been convicted of the criminal charge. The Legislature wisely decided to include this provision in the administrative revocation law because a criminal conviction requires the same facts to be proven in a venue with a tougher burden of proof. However, this difference in the burden of proof means a person may be acquitted of a criminal charge of DUI but still lose his or her driver's license at the DMV hearing.

Here is where we arrive at the controversy over how defendants who plead no contest to the criminal charge and found guilty by the court are treated. A well-established principle of American law (and the laws of every other country that follows the English legal tradition) is that when a person pleads no contest to a criminal charge, that plea cannot be used as an admission of the defendant's conduct in any other proceeding, including a civil case (such as a DMV license revocation hearing). However, when the no contest plea is entered, the judge has a duty to decide whether the defendant is guilty or not guilty of the crime charged. In almost all cases--since the no contest plea is usually only entered when the defendant knows he is guilty and has no chance of prevailing--the judge finds the defendant guilty.

In 2004, the state Supreme Court found that when the Legislature enacted the two-track system for revoking driver's licenses for DUI, the statute's definition of conviction encompassed convictions entered by a court following no contest pleas. When the Legislature adopted this definition, it relied upon the judge's finding of guilt and not the defendant's no contest plea as the basis for binding the court's adjudication of guilt upon the DMV's administrative process. Therefore, we are not dealing with a breach of centuries of legal tradition regarding the effect of no contest pleas to criminal charges.

Now, since West Virginia's system of driver's license revocations for DUI obviously involves far more cases of people losing their licenses without a conviction than no revocations following no contest plea-based convictions, what is the problem? Well, just as the system can be abused to drop valid criminal charges of DUI for no good reason, so too can the system be abused to keep a few convicted drunk drivers who pleaded no contest on the roads.

A dirty little secret few are willing to admit is that in certain cases, especially involving powerful and/or wealthy defendants and/or their lawyers, arrangements can be made to plead no contest, allow the prosecutors to credit themselves with a conviction, and arrange to "lose" or "misplace" the arresting cop's subpoena to the DMV hearing. When the cop fails to appear, the DMV must dismiss the revocation action and the defendant gets to keep his driver's license. In a few cases, hearings may be rescheduled, but this is not likely in the wake of a state Supreme Court decision this year requiring the DMV to pay the defendant's costs associated with the rescheduled hearing if the DMV chooses to proceed with the revocation action.