Category Archives: Alcohol/Drugs

Can a Passenger Recover Damages for Accident Injuries Caused by the Driver in WV?

Can a passenger recover damages for accident injuries caused by the driver in the State of West Virginia?

Yes, in West Virginia, if the driver of the vehicle is guilty of ordinary negligence, then passengers in the vehicle can recover damages from the insurance policy covering the vehicle. It is important to note however, that in situations where alcohol is involved, the passenger may be guilty of comparative negligence in causing his or her own injuries by getting into the car in the first place if there is a resulting alcohol-related car wreck. Additionally, passengers can be liable to other victims of the car wreck under certain circumstances if they allowed or encouraged the driver to drive impaired. See my earlier posts regarding alcohol and passengers.

– John H. Bryan, West Virginia Car Accident Attorney.

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Crash Victim in Critical Condition

From the Wheeling Intelligencer:

Crash Victim in Critical Condition

By GABE WELLS Staff Writer
POSTED: March 26, 2008 Save | Print | Email | Read comments | Post a comment

WHEELING — The driver in an early Tuesday crash that critically injured a Triadelphia woman was exceeding the speed limit by at least 35 mph, an investigator said today. The Wheeling man behind the wheel reportedly admitted to drinking alcohol prior to the crash.

Justin M. Kearns, 22, of 6 Romney Road, Wheeling, was traveling at least 70 mph in a 35 mph stretch of National Road in Elm Grove at about 12:30 a.m. Tuesday when the 1999 Acura left the road, struck a bus shelter and rolled on its top, according to Wheeling Police Department Sgt. Bill Goldbaugh.

Heather Miller, the passenger in the vehicle, is still being treated in intensive care at the Ohio Valley Medical Center, hospital Public Relations Director Maggie Espina said today. Miller, who is believed to be in her early 20s, was extricated from the vehicle by the Wheeling Fire Department.

According to the city police report, Kearns told an officer at the crash scene he had “a few drinks earlier in the day.” Kearns initially left the scene of the crash, but he returned and told Wheeling police he’d gone to get help. Before leaving the scene, Kearns reportedly told one witness, “Find the girl, I don’t know where she’s at.” Another witness told police the vehicle driven by Kearns was “flying around a turn toward National Road,” prior to the crash.

Kearns was arraigned Tuesday by Ohio County Magistrate Harry Radcliffe on a charge of DUI with injury, and he has since been released from the Northern Regional Jail after posting $5,000 bond. Goldbaugh said the crash is still under investigation.

DUI Driver Kills Passenger in Brushfork Crash

From the Bluefield Daily Telegraph:

Crash kills one

Police charge Va. man with DUI causing death

By CHARLES OWENS

Bluefield Daily Telegraph

BRUSHFORK — A Bluewell man died early Friday morning following a single-vehicle accident on Airport Road near Bluefield.

Justin Keith Matusevich, 21, of Bluewell, a passenger in the vehicle, died at Bluefield Regional Regional Medical Center shortly after the 4 a.m. crash, according to a report by Sgt. Stan Cary of the Mercer County Sheriff’s Depart-ment.

Cary said a vehicle operated by Paul Joseph Quesenberry, 21, of Falls Mills, Va., went off the road to the right, overcorrected, flipped and landed in the parking lot of the Airport Tavern. Matusevich was ejected from the vehicle, according to the report.

Cary said Quesenberry was arrested and charged with DUI, DUI causing death and possession of a controlled substance following the accident.

Quesenberry was taken to the hospital following the crash, but later released, a sheriff’s department spokeswoman said.

Quesenberry was arraigned on the charges Friday before Magistrate Jerry Flanagan, who set bond at $5,000. Quesenberry was released on bond, according to a magistrate court clerk.

Flanagan set a preliminary hearing in the case for March 20.

Cary was assisted in the investigation by Deputy W.R. Rose and Senior Deputy W.C. Wilborn. Further details were not available Friday.

He was Drinking: Monroe County Bus Driver Resigns, Admits Drinking Problem

Note: It appalls me that I received criticism for being “mean” when this man receives nothing but excuses for his behavior. The facts are these: He drank, he drove a school bus filled with children, he drove the school bus off a 120 foot cliff, he lied and said he drank Nyquil, he lied and said he had a medical problem, then he finally admits the truth. Well, words are cheap. Trust me, many people facing criminal charges have the innate ability to sound extremely sorry and remorseful for what they have done. In the following news article, his written apology is quoted. However, it looks to me like one of those apologies that is not really an apology. In other words, “I’m sorry but it wasn’t me – it was the alcohol making my decisions for me.” He should take real responsibility for his actions and come to grips with the fact that he did make a “knowing” choice. He selfishly chose alcohol over the safety of the innocent children who he was entrusted to protect. Both he, the Board of Education and the State of West Virginia better pray that none of these children have been injured – John H. Bryan, Attorney at Law.

From today’s Register-Herald:

Bus driver resigns, admits drinking problem

By Christian Giggenbach
Register-Herald Reporter

Saying “I hit rock bottom,” a veteran Monroe County school bus driver arrested last week on a DUI charge has resigned after admitting to having “a problem with alcohol.”

Clyde Watson Jr., 62, of Union, tendered his resignation to Superintendent Lyn Guy Saturday, and Guy presented it to the school board during a special session Monday evening.

“Mr. Watson, who was involved in the bus accident on Feb. 5, 2008, and was charged with DUI, had written a letter of apology to the board president, the superintendent and the transportation director Feb. 7, two days after the accident,” Guy said Tuesday in a faxed news release.

In the letter, Watson admitted to having an ongoing alcohol problem, according to Guy.

“It has been through the constant support and encouragement of my closest friends, for the first time in years, I’m willing to admit to myself that I have a problem with alcohol,” Watson wrote. “As difficult as that was for me, it is even more difficult to admit to each of you.”

Guy could not be reached for further comment Tuesday. School officials said Guy will be absent for the rest of the week due to an out-of-state conference for superintendents.

Watson, a school bus driver for 14 years, crashed his 33-foot-long bus into a 120-foot ravine with 11 school children aboard Feb. 5. There were no injuries.

“I hit rock bottom Tuesday morning (Feb. 5). I can’t change the fact that I committed a great moral and ethical injustice, and risked the lives of many,” Watson said in his apology letter.

“What I can change is my life and the direction it was headed in before those kids got on my bus … It is with heavy heart that I can tell you that at no time would I have knowingly put my kids at risk. I did, however, let the influence of alcohol unfortunately impair my judgment.

Watson was charged with DUI with minors in a vehicle, according to a criminal complaint filed by State Police Sgt. J.L. Cooper.

At the scene, Watson had a preliminary breath test which indicated a small amount of alcohol was present in his blood, about .022.

Watson told police he had taken Nyquil, which contains alcohol, the night before the accident.

Cooper said Tuesday he will contact the Monroe prosecutor’s office concerning Watson’s alcohol admission and resignation to the school board.

“He has already given us a statement saying he did not drink during the day of the accident,” Cooper said Tuesday. “If Mr. Watson wishes to revise his statement, then I will be glad to speak to him.”

Monroe Prosecutor Rod Mohler could not be reached for comment Tuesday. State Police are awaiting the results of Watson’s blood tests from a hospital visit the day of the accident, Cooper said.

Although a driver is presumed intoxicated by the state when his or her blood alcohol content is .08, police can charge a driver with DUI at lower BAC levels if the consumption of alcohol has impaired his or her ability to drive.

If convicted, Watson faces two days to 12 months in jail and up to a $1,000 fine.

School board member Bill Shiflet said a disciplinary hearing had originally been scheduled for Monday prior to Watson’s resignation.

A Register-Herald request for a full copy of Watson’s resignation and apology letter was denied by school officials.

School officials also said Watson had an unlisted phone number. It is uncertain if Watson has hired an attorney to represent him in the criminal case.

Shiflet said Watson’s letters did not specifically mention what type or how much alcohol he had consumed prior to taking the wheel of the bus.

When asked what liability Watson’s actions may have caused the county, Shiflet was unsure.

“It’s a very tragic event and we are very thankful that no one was injured,” Shiflet said by phone. “It certainly could have been a lot worse than it was.”

Your Author Confronted on Street Regarding Monroe County Bus Accident

Yet another update regarding the Monroe County School Bus DUI Case: a well-known local citizen approached me on the street this morning and criticized my comments regarding the driver of the now-infamous DUI School Bus as being too harsh.

I will reiterate what I told him in case there are others who feel my comments were too harsh. My initial reaction was perhaps too harsh given that subsequent mitigating information was released regarding a possible medical condition that may have caused the accident. Furthermore, I initially read the Register-Herald article as stating that he had a BAC of “.22” when in fact it was “.022” – which is obviously a big difference. For this reason, I subsequently redacted my initial comments and provided an update with the new information on this Blog.

The point is, that if I was mistaken about the facts, then I agree that my language was too harsh and I apologize. If the driver had not been drinking, then I was wrong in using such strong language. Although, anyone who has previously driven off a 120 cliff while driving a school bus filled with children – whether drunk or not – should not be given a second chance to drive children around on mountain roads. So, to a certain extent, it doesn’t matter whether he was intoxicated or not. The fact is that it happened, and it can’t be attributed to icy roads.

However – and this is a big however – if he had been drinking, then I stand by my comments 100%. I don’t care if the driver of the bus is Mother Theresa, I will side with the children 100% of the time. If that man got behind the wheel of that bus, putting the lives of 11 innocent children at risk, then he deserves nothing less than 11 years in prison (1 year for each child), plus lifetime revocation of his license. My opinion may be unpopular to the friends and family of the driver, but I base my opinion on principle, not public opinion.

After I told this to the aforesaid citizen who confronted me on the street, he replied that, “well he did do it – he already resigned, but you shouldn’t say things that are mean.” Let it be known from here forward, if you recklessly or negligently hurt innocent children in my community, then I will write “mean” things about you on this Blog. – John H. Bryan

See update here.

Another Update on Bus Driver’s DUI Arrest in Monroe County

From today’s Register-Herald:

Note: The latter half of this article contains a very informative recitation of what the DUI laws are in the State of West Virginia. West Virginia is one of the states that allow a conviction if the BAC result is .08 or greater (solely based on the BAC result). Other states, such as North Carolina focus more on whether or not the person was intoxicated, regardless of what the BAC reading was. However, these states do use the BAC reading (from the intoxilyzer machine, not the field preliminary breath tests) as evidence that the person was intoxicated. Guilt is shown mostly by the officer’s testimony regarding the defendant’s performance in the field sobriety tests, and regarding the quality of driving that took place immediately prior to the stop. Having formerly prosecuted DUI’s (DWI’s) in Raleigh North Carolina, I have witnessed defendant’s acquitted despite having BAC results of .12 and .13 – well above the legal limit of .08 – because the judge was convinced the person was not “impaired” despite the high BAC reading. Regardless however, a civil jury stemming from a personal injury suit could find that the driver was negligent, even if he was not charged, or even acquitted criminally. This is because the standard of proof is different in criminal versus civil cases. In civil cases, the burden of proof is a preponderance of the evidence. In other words, any amount over 50%. In criminal cases, the burden of proof is beyond a reasonable doubt – which is about as high as you can get – up there close to 99.9% (at least in theory). – John H. Bryan, West Virginia car accident attorney.

Bus accident, arrest throw the spotlight on DUI laws

By Christian Giggenbach
Register-Herald Reporter

A school bus accident in Monroe County last week and the subsequent arrest of the driver on a DUI charge has thrown a spotlight on the state’s drunken driving laws.

Almost everyone knows West Virginia’s legal limit for driving under the influence is a blood-alcohol content of .08.

But few understand exactly what .08 means legally and why a person can be charged and convicted for drunken driving with BAC levels that are much lower.

State Police charged Clyde Watson Jr., 62, of Union, with DUI while transporting minors after the bus he was driving crashed down a 120-foot ravine last Tuesday. Eleven children were on the bus, but no one was injured.

Police said Watson had a .022 level of alcohol, well below the .08 limit. Watson told police he had taken Nyquil, an over-the-counter cold medicine that contains alcohol, the night before, and Monroe Prosecutor Rod Mohler said later in the week “there are some issues that need to be explored regarding whether (Watson) might be a diabetic and how alcohol of any amount would affect his system and be shown on a breath test.” Watson told police he felt “funny” just before the accident.

Monroe school officials said Watson previously had a spotless 14-year safety record.

– – –

The Register-Herald asked Charleston defense attorney Carter Zerbe to explain the state’s DUI laws, which are some of the strictest in the country.

“In West Virginia, it doesn’t matter if you are intoxicated or not,” said Zerbe, who has been defending DUI clients for 20 years. “A person could have a BAC level of .08 and not be drunk, but if it’s at that level, or above, you are guilty of a crime regardless.”

Zerbe said the law is known as the “per se” law and a person can be convicted of DUI even if the person shows no outward signs of intoxication.

“Another misconception is that you have to have a scientific test in order to be convicted of DUI,” Zerbe said. “If a police officer testifies that a defendant had slurred speech, or if the person staggers while being videotaped, that can sometimes be sufficient evidence for a conviction, even when there were no blood tests or breath tests.”

Zerbe said police must first have a “reasonable suspicion” of drunken driving before pulling a car over.

Many times, a burned-out tail light or expired license plate gives an officer probable cause to stop someone, he said.

If the officer smells alcohol or observes symptoms of intoxication, the officer can request that the driver perform three field sobriety tests, which include a vision test and walking tests.

“If necessary, then the officer can administer a preliminary breath test, where a person blows into a tube,” Zerbe said.

That test is not admissible as evidence in a trial, but can give the officer probable cause to ask for a blood test or a secondary breath test, both of which can be used as evidence.

But what if your BAC level is below .08? Can you still be charged and convicted of drunken driving?

Yes, because it’s not the amount of alcohol in your system that matters, but rather how much that alcohol impairs your ability to drive, Zerbe said.

Remember, the .08 standard is used to “presume” someone is drunk; below .08, alcohol can still affect some people’s ability to drive, he said.

“You can be convicted if alcohol impairs your ability to drive,” Zerbe said, “even though your BAC is below .08.”

Update – Monroe County Bus Driver Had Possible Medical Condition

From today’s Beckley Register-Herald:

Bus driver’s medical condition probed

Christian Giggenbach
Register-Herald Reporter

Prosecutors say they are investigating a possible medical condition with a Monroe County school bus driver charged with DUI following a bus crash involving 11 children Tuesday.

A well known Charleston DUI defense lawyer also said the bus driver should never have been charged with DUI because his preliminary breath test proved he was not intoxicated.

Monroe Prosecutor Rod Mohler told the Register-Herald on Thursday the case against Clyde Watson, Jr., 62, of Union, was moving forward with “extreme caution” because of the accident.

State Police arrested Watson and charged him with DUI while transporting minors. Watson’s bus crashed down a 120-foot ravine with 11 children aboard about 7:20 a.m. near the Monroe-Greenbrier county line. There were no injuries were reported.

“What little we know is at this point there was a trace level of alcohol in his system,” Mohler said Thursday. “Even at that low level, you can still be considered under the influence. However, there are some issues that need to be explored regarding whether (Watson) might be a diabetic and how alcohol of any amount would affect his system and be shown on a breath test.”

Watson was administered a preliminary breath test by a Greenbrier County sheriff’s deputy which found a .022 level of alcohol in his body.

Mohler said the case would be “explored fully and completely” to determine whether Watson was “criminally responsible regardless of his condition.”

A phone listing for Watson could not be found Thursday.

Watson told police he had taken Nyquil, which contains alcohol, the night before and felt “funny” just before the accident.

School officials said Watson previously had a spotless 14-year safety record as a bus driver. Superintendent Lyn Guy said Watson was suspended from his job pending the resolution of the DUI charge.

Although .08 is considered the legal limit for driving under the influence, State Police Trooper J.L. Cooper said a person can be charged with DUI for much lower levels if alcohol impairs the ability to drive.

“You have to justify that the alcohol limit caused the impairment,” Cooper said.

Barbara Allen, a deputy with the state attorney general’s office, said any driver with an “appreciable measure of alcohol” can be charged with DUI.

“Once a driver’s alcohol level reaches .08, you are presumed to be under the influence,” Allen said Thursday. “If the level of alcohol is below that, you can still be found guilty if a jury concludes based on all the facts and circumstances that your ability to drive was impaired because you were under the influence of alcohol.”

But the question remains whether Watson’s reported .022 alcohol level is enough to justify a DUI conviction, Charleston lawyer Carter Zerbe said, and whether Watson was under the influence at all the morning of the accident.

“The .022 level is so low that it is evidence in and of itself that the bus driver was not under the influence of alcohol,” Zerbe, who is among the state’s top DUI defense lawyers, said Thursday. “I don’t know what basis there was for charging this bus driver for violating that section of the law.”

Zerbe said preliminary tests are not admissible as evidence at trial. In Watson’s case, a second, more reliable test was not given because too much time had elapsed from the first breath test, according to the criminal complaint.

However, hospital records containing Watson’s blood tests are being subpoenaed to determine what levels, if any, there were of alcohol in his system, police said Wednesday.

“If the initial breath test was .022 and if it was accurate,” Zerbe said, “I would imagine the blood test will be exculpatory.”

A hearing in the case is expected to be scheduled next week. If convicted, Watson faces two days to 12 months in jail and up to a $1,000 fine.

Note: The first time I read the article, I thought it said he had a .22 BAC – which is common in black-out type situations. Upon reading the updated article and re-reading the prior article, I noticed that it said “.022.” Having formerly prosecuted DUI’s in North Carolina (actually they are called DWI’s) I agree with Mr. Watson’s lawyer that there is no way this man can be charged. First of all, since he is a bus driver, he could be charged if he registered a .04 BAC. However, the preliminary field sobriety test is not admissible in court, so he could not be convicted even if the field test read over a .04 – which it didn’t. They would have to have an intoxilyzer result that is admissible – which doesn’t exist in this case. Lastly, it would not be fair to put this man before a jury when the only evidence of intoxication is the accident itself. – John H. Bryan, West Virginia car accident attorney.

See UPDATE here.