Lawyer-lobbyist challenging DUI revocation

By Lawrence Smith | Oct 23, 2009


CHARLESTON - Citing violations of its own clearly established rules, a Charleston attorney and lobbyist is seeking to prevent the state Division of Motor Vehicles from taking further action against her driver's license following her arrest for DUI a year ago.

Nikki L. Barone on Sept. 30 filed a combined writ of prohibition and mandamus in Kanawha Circuit Court against DMV Commissioner Joe E. Miller. Barone alleges she has been unfairly prejudiced by DMV not following its rules regarding suspension, and revocation of a driver's license.

Specifically, she alleges DMV erred in not only rescheduling her hearing after the officer failed to show, but also because the officer failed to request a continuance, and DMV rescheduled the hearing past the statutory limit.

Speeding leads to arrest

According to court records, Barone, 58, was stopped by Patrolman Mathew Custer of the Ranson Police Department for speeding at 12:27 a.m. on Oct. 17, 2008. Upon observing her "to have blood shot eyes and a strong odor of an alcoholic beverage from her breath," along with her admission that she "had a few glasses of wine," Custer asked her to step out of her car to take some field sobriety tests.

After failing three physical agility tests, Custer asked Barone to take a preliminary breath test. When she refused, Custer placed Barone under arrest, and took her to the Charles Town Police Department for processing.

While under arrest, Barone was asked to take a secondary breath test which she again refused. Thereafter, she was taken to the Eastern Regional Jail where she was booked on first offense DUI, and later released on $3,500 property bond.

According to The Charleston Gazette, Barone, a Charleston resident, was in the eastern panhandle for the annual Breeders Cup thoroughbred race sponsored by Charles Town Races, for whom Barone works as a lobbyist. Her arrest came after a reception CTR held in Shepherdstown Thursday night Oct. 16.

Four days following her arrest, Assistant Jefferson County Prosecutor Charles B. Howard made a motion that the DUI charge against Barone be dismissed. No reason is stated in court records for the dismissal.

Nevertheless, Magistrate William E. Senseney granted it that same day.

Not out of the woods

Despite the dismissal of the criminal charge, Barone still faced revocation of her license. Records show she received a letter from DMV dated Nov. 18 saying her license would automatically be revoked on Dec. 23 if she did not formally contest it via an administrative hearing.

Following her request for hearing, DMV sent Barone a letter dated Nov. 20 her hearing was scheduled for March 5 in Kearneysville. Two months later, Barone requested Custer attend the hearing.

In her petition, Barone maintains that Custer failed to show for the hearing. She avers that neither she nor Custer made a motion to continue the hearing before it was held, nor did the hearing examiner receive any communication from Custer subsequent to the hearing asking for continuance due to emergency reasons, or offer any explanation why he failed to appear.

Regardless, records show, DMV sent Barone a letter dated May 21 informing her of a re-scheduled hearing on Aug. 12. Later, she received another letter saying the hearing was being moved once again, this time to Sept. 23.

After Barone filed a previous combined writ of prohibition and mandamus in Jefferson Circuit Court on July 20, DMV agreed to stay the revocation proceeding pending the withdraw of her petition, and refiling it in Kanawha Circuit Court where DMV argued was the proper venue.

'Disdain for fairness'

In her petition, Barone asks the court to prohibit DMV from continuing with the revocation hearing on the grounds that the rescheduled hearing of Sept. 23 was more than 180 days after the first hearing. The March 5 hearing is also at the center of Barone's writ of mandamus in which she asks the court to order Cline to go beyond halting the revocation hearing, dismiss the hearing altogether and reinstate her license on the grounds that Custer's failure to appear, and make a motion to continue either before or after the first hearing, is clear grounds for dismissal under DMV's own rules.

Barone does not mince words in calling her case "the most egregious example of the DMV commissioner's hypocrisy in failing to follow his self-promulgated rules."

"The officer never sought a continuance of the hearing or offered any explanation for his non appearance," Barone said in her petition. "Nor did the commissioner find any good cause for continuing the hearing on his own motion two months after the original hearing occurred."

"The commissioner's two month, post-hearing rescheduling in this case was brazen, was unprecedented, and was done with a disdain for any sense of fundamental fairness."

Along with granting her motion, Barone is asking she be awarded expert, attorney and travel fees associated with defending herself in the administrative hearing, and filing the petition.

Barone is represented by Harley O. Wagner with the Martinsburg law firm of Mills and Wagner. The case is assigned to Judge Jennifer Bailey.

Kanawha Circuit Court, case number 09-MISC-362; Jefferson Magistrate Court, case number 08-M-3303

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