Posted on 01/13/2005 4:20:49 PM PST by ambrose
January 13, 2005 State Police probe Whittaker case
By Tom Searls Staff writer
State Police have launched an internal probe into why a trooper failed to provide enough information for the state Division of Motor Vehicles to revoke the driver’s license of record Powerball winner Andrew “Jack” Whittaker.
A final order in the DMV case was entered on Aug. 27, after an administrative law judge found the state failed to present enough evidence to prove Whittaker was intoxicated when found asleep inside his Cadillac on Interstate 64 on Jan. 25, 2004.
“That’s being reviewed as an internal investigation right now,” said State Police Lt. Col. Dave Williams. “There’s been some allegations made and we’re investigating the allegations.”
In a separate hearing, a magistrate dismissed criminal charges against Whittaker for the same incident last month.
In the DMV hearing, State Police Trooper Brian Morris, the arresting officer, failed to establish his credentials to administer field sobriety tests, despite testifying that Whittaker failed two such tests, the final order states.
Morris said he smelled alcohol on Whittaker when he awakened him, though Whittaker told him he was not intoxicated and had consumed only one beer. Morris then asked Whittaker to follow the trooper’s finger with his eyes, and Whittaker failed that test, Morris testified.
At the South Charleston detachment, Morris testified he administered the “walk-and-turn” test, which Whittaker also failed.
“Specifically, although the arresting officer testified that the respondent failed the two field sobriety tests, he did not specify his training in the administration of field sobriety tests, the manner in which the tests were administered, or the respondent’s actual performance on either of the individual tests,” the final order states.
A transcript of the hearing shows the administrative law judge gave the trooper the opportunity to present such evidence and he did not. Whittaker’s attorney, Carter Zerbe, then objected to admitting those tests as evidence and the judge agreed.
“Therefore, the arresting officer’s statements that the respondent failed the two field sobriety tests administered to him cannot be accorded any evidentiary weight,” the order states.
Because of that, the DMV commissioner reversed the order of license revocation against Whittaker because the state failed to demonstrate probable cause and “failed to present sufficient evidence to prove the respondent drove a motor vehicle in this state while under the influence of alcohol ...”
While Williams would make no other comment about the internal investigation, it appears to be questioning why Morris did not present sufficient evidence, such as his training and credentials.
In the criminal case, Kanawha County Magistrate Tim Halloran dismissed a misdemeanor drunken driving charge against Whittaker to punish the county prosecutor for failing to bring a witness to a pre-trial hearing. The magistrate also barred prosecutors from refiling the case because prosecutors hampered the “preparation and presentation” of Whittaker’s defense.
Kanawha County prosecutor Bill Charnock plans to appeal Halloran’s order to circuit court and hopes to be able to refile criminal charges of driving under the influence.
“We respectfully disagree with the magistrate’s ruling,” Char-nock said.
On Wednesday, Halloran declined to explain his decision further. “Nothing to be said,” he said. “It’s a done deal.”
His dismissal gave Whittaker a big win. The millionaire avoided going to substance abuse rehabilitation, something he would have had to do if the charge was still hanging over his head.
After a second DUI arrest Nov. 30 in Raleigh County, Kanawha County prosecutors moved to revoke his bond, saying he had violated it by being arrested again.
Instead of jail time, Whittaker agreed to a four-week stint in rehab starting in early January, something no longer required. Whittaker also won back his driving privileges.
Staff writer Toby Coleman contributed to this story. To contact staff writer Tom Searls, use e-mail or call 348-5192.
If you get drunk and stagger pout to the car for a nap be sure you throw the kesy out in a field somewhere the cops cant find them . Otherwise driving or not you will be charged. personally I think its BS but thats what they do.
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