Attorney says cops unlawfully arrested him twice for DUI

By Kelly Holleran | Sep 15, 2008

A Charleston attorney charged with two DUIs has filed a federal lawsuit against three Charleston police officers, Charleston's police chief and mayor and the city, alleging the officers unlawfully arrested him twice.

A Charleston attorney charged with two DUIs has filed a federal lawsuit against three Charleston police officers, Charleston's police chief and mayor and the city, alleging the officers unlawfully arrested him twice.

Daniel Murdock claims the first unlawful arrest took place Sept. 9, 2007, on Lee Street when officer Mark Petty forced him to stop his red Ford Mustang without reasonable suspicion.

Murdock was placed under arrest by Petty and a second officer, Ryan Higginbotham, without probable cause, according to a complaint filed Wednesday in U.S. District Court.

According to a complaint Higginbotham filed in Kanawha County Magistrate Court on Sept. 9, 2007, Petty saw Murdock driving down Lee Street and accelerate toward Petty about 1:09 a.m.

Petty flagged the vehicle to the side of the road and could smell a strong odor of alcohol emanating from the car, according to the complaint.

Murdock told Petty he had one beer at the Red Carpet Lounge, the complaint stated.

Higginbotham claims Murdock failed two sobriety tests he was given and refused to take the third – a one leg stand – saying he had back problems.

Murdock also failed the preliminary breath test and blew a .13 at 2:06 a.m., according to the complaint.

In an affidavit, Murdock stated Petty was waving a flashlight at the side of the road. Murdock thought Petty was operating a checkpoint and stopped, according to the affidavit.

At a later point during the stop, Murdock asked Petty why he was stopped because he did not believe it was lawful, according to the affidavit.

Murdock claims Petty told him the stop was only requested and was voluntary.

Higginbotham filed a criminal complaint and a filing with the West Virginia Division of Motor Vehicles that he knew to contain false, misleading and incomplete information, Murdock claims in the lawsuit.

Murdock filed a motion to dismiss the Sept. 9 complaint on Feb. 13, according to the federal suit.

The complaint was dismissed on Feb. 28.

After filing the motion, Murdock claims he was unlawfully arrested again on Feb. 18, when officer Justin Doughty forced him to stop with no reasonable suspicion.

He was again placed under arrest by Doughty without probable cause, according to the federal complaint.

"At the time Plaintiff was arrested by Defendant Doughty, Defendant Doughty indicated through his words and actions that Plaintiff had been pulled over and was being arrested in retaliation for filing his Motion to Dismiss," the suit states.

But according to the criminal complaint Doughty filed in Kanawha County Magistrate Court, he pulled Murdock over for expired MVI tags and for driving left of center.

Doughty stated he could smell alcohol coming from the vehicle and that after Murdock got out of the vehicle, he used it to maintain his balance.

Murdock refused to take all three field sobriety tests he was offered and told Doughty he knew he would fail them, according to the complaint.

Murdock failed the horizontal gaze nystagmus test he was given and blew a 0.042 in the breath test, the complaint states.

Murdock claims in the federal suit that when he refused to answer Doughty's questions, Doughty threatened he would spend the night in jail or at the hospital if he did not answer.

Petty also appeared at the scene of the arrest and told Murdock that if he would agree his Sept. 9 arrest was in good faith, Murdock would not be arrested that night, according to the federal complaint.

Petty also said he would "testify favorably for the Plaintiff in the criminal and civil proceedings arising from the September 9, 2007, arrest of Plaintiff," the suit states.

Murdock claims he declined Petty's offer and was arrested.

He spent Feb. 18 and 19 at South Central Regional Jail, according to the suit.

Like the September complaint, the February complaint was also dismissed in Kanawha County Magistrate Court on May 15.

Murdock claims the arrests were deliberate, knowing, malicious, willful, wanton and unlawful.

He also claims the arrests were unreasonable and should not have happened because Murdock had not made any mistakes.

Murdock claims the officers were in conspiracy and lay in wait for him, harassed him, threatened him and unlawfully arrested him.

He claims the city and the Charleston Police Department were negligent because they had the power and duty to prevent the arrests, but didn't.

He claims Charleston Police Chief Brent Webster and Charleston Mayor Danny Jones were negligent because they failed to train and to supervise the officers and knew that this would create a risk of harm.

As a result of the arrests, Murdock claims he suffered irreparable harm, including physical injury, embarrassment, humiliation, aggravation, inconvenience, degradation, damage to personal reputation, damage to professional reputation, economic harm and severe emotional distress.

In the 14-count suit, Murdock is seeking unspecified compensatory and punitive damages, attorneys' fees and any other relief the Court deems just.

He has demanded a jury trial.

Murdock is represented by Michael D. Payne of Redman & Payne in Charleston.

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