CHARLESTON – While a Charleston attorney awaits a new trial date for driving under the influence and related moving offenses, he will have to find alternate means of transportation to work as his license to operate a motor vehicle has been revoked.
On June 29 the state Division of Motor Vehicles notified Roger A. Wolfe, an attorney with the law firm of Jackson Kelly, his operator's license was being revoked for not taking a Breathalyzer test. According to court records, Wolfe was charged with DUI on June 17 after a state trooper pulled him over for a routine traffic stop.
In its letter, DMV informed Wolfe he had the right to contest the revocation though an administrative hearing. In order to do that, he had to notify DMV by Aug. 3.
However, Wolfe alleges he did not receive the DMV's letter until the Aug. 3 deadline. With the assistance of Benjamin Bailey and Christopher Morris, attorneys with the Charleston law firm of Bailey and Glasser who represent him in his pending criminal trial, Wolfe filed suit against DMV Commissioner Jim Cicchirillo in Kanawha Circuit Court to forestall the revocation.
Specifically, Bailey and Martin filed a writ of mandamus with the circuit court on Wolfe's behalf. In their writ, Bailey and Morris asked that the Court "require the Commissioner to grant Petitioner's request for a DMV hearing on the charges."
"The effect of such an order is simply to extend the notice period for 24 hours," they added.
Also, they maintained that "at no time did Petitioner receive any correspondence from DMV regarding the charges filed against him by the state of West Virginia."
The writ was not the first course of action Bailey and Morris took. Prior to filing the writ, Bailey faxed a letter Aug. 3 addressed to Adam Holley saying Wolfe was "effectively incapacitated from 17 June to 23 June" due to facial and cranial fractures he allegedly received from police after he was stopped.
In his letter, Bailey said unless DMV grant Wolfe a hearing, he would be "forced to file a petition for writ of mandamus this afternoon commanding that the Division offer my client the appropriate notice."
However, in an unsigned letter from the director of driver services dated Aug. 6, DMV denied the request saying "the order or revocation was mailed on June 29, 2007 by certified mail to the address on record and returned to us marked Attempted not Known unable to forward."
Court records show the address to where DMV sent the revocation letter was to Longridge Road. Wolfe now resides on Edgewood Drive.
After Bailey and Morris filed the writ, the case was assigned to Kanawha Circuit Judge Louis H. "Duke" Bloom. A day after receiving DMV's letter denying Wolfe a hearing, Bailey and Morris filed a show cause motion.
On Aug. 13, Bloom denied their petition. In his order, Bloom said the writ of mandamus lacked merit given Wolfe's failure to notify DMV of his change of address.
"Were, as here," Bloom said in his order, "the driver has failed to receive timely notice of the revocation of his driving privileges because he did not comply with the statute requiring him to keep DMV apprised of his current address, his failure to make a timely request for an administrative hearing cannot be excused."
"A Writ of Mandamus," Bloom added, "is available to compel an official to take requested action where the party requesting the writ can establish the coexistence of a clear legal right to the result sought, a clear legal duty on the part of the official to take the requested legal action and lack of legal remedy."
"Petitioner has failed to demonstrate entitlement to requested Writ of Mandamus," Bloom said.
Kanawha Circuit Court Case No. 07-MISC-323
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