CHARLESTON – A magistrate's failure to reschedule a trial in a Charleston attorney's DUI case prior to the expiration on the statute of limitations is insufficient reason for the case to be reopened, a Kanawha Circuit judge has ruled.

On Aug. 21, Judge Irene C. Berger issued her decision in the case of State of West Virginia v. Magistrate Carol Fouty. In a writ of prohibition filed on June 16, the Kanawha County Prosecutor's Office asked Berger to overturn Fouty's June 1 decision dismissing DUI and related moving violations against Roger Wolfe.

According to court records, Wolfe, a senior labor law attorney with the Charleston law firm of Jackson Kelly, was arrested and charged on June 17, 2007 with one count each of DUI, improper lane charge, failure to obey a traffic light and obstructing an officer.

Trooper P.A. Green with the West Virginia State Police, who was leaving magistrate court, pulled Wolfe over when he noticed Wolfe driving erratically down Quarrier Street.

Upon asking Wolfe to exit his vehicle when he suspected Wolfe had been drinking, Green said Wolfe "repeatedly became belligerent, cursing and making inappropriate comments." Shortly thereafter, records show Green placed Wolfe under arrest.

Upon being assigned the case, Fouty set a bench trial on the charges for Sept. 19. At their request, Fouty granted the Prosecutor's Office a 90-day continuance to allow Wolfe's defense team time to conduct additional discovery.

Records show no activity in the case occurred until May 30. It was on that day Brenden Long, assistant prosecuting attorney, contacted Fouty about setting a new trial date.

Fouty, records show, rescheduled the trial for June 16, the day before the statute of limitations was set to expire on prosecuting Wolfe.

However, on June 1, Wolfe's attorney, Carter Zerbe, made a motion to quash the trial date for two reasons. First, for Fouty's failure to properly notify both parties at least six weeks prior to a new trial date and, second, for the prosecution's failure to tender discovery to the defense at least 21 days prior to trial.

Records show that same day, Fouty granted Zerbe's motion to quash a new trail, and dismissed the case.

In a three-page letter addressed to Long, Zerbe and Richard Lindroth, who was representing Fouty, Berger announced her intention to deny the state's request for a writ of prohibition. Citing the state Supreme Court's 1982 decision in Stiltner v. Harshbarger, Burger said "one (1) year is the outside limit for commencing the prosecution of a criminal case in the magistrate courts of this State."

Though four exceptions exist to the three-term-of-court, or 1-year, rule – a defendant's insanity, intimidation or excusable absence of a state witness, a granted motion of continuance by the accused or the defendant's failure to appear – "[n]one of these exceptions exist in this case."

"Given these failures and the mandates of the respective rules," Berger added, "commencing prosecution within one (1) year of the issuance of the warrant is simply not possible."

However, Berger said she's "troubled that a magistrate's failure (either negligently or intentionally) to docket a case can result in the citizen's of the State of West Virginia losing their right to prosecute the charges ..."

In closing her letter, Berger asked Zerbe to draft a final order closing the case. Prior to her, Berger requested Zerbe submit the order to Long and Lindroth "preserving the appropriate objections and exceptions."

When contacted, Long declined to comment and referred questions to Kanawha County Prosecutor Steve Revercomb. As of presstime, Revercomb was not immediately available for comment.

Needless to say, Zerbe welcomed Berger's decision.

"We're happy with it," Zerbe said. "I was shocked that the state even appealed it."

Kanawha Circuit Court Case No. 08-MISC-219

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