Was arrested for DUI in May of 2010. The criminal case was dismissed for lack of evidence and the officer never showed. My first dmv hearing was in dec. of 2010. In which the officer didn't show. The second scheduled hearing was scheduled in the spring of 2011 and continued to another date. Finally had the second hearing a year later in the spring of 2012. That summer I got a DUI in Ohio. Once they turned it into the DMV in January of 2013, then they issued a year long suspension starting in march. The DMV is saying this is my second even though there was no decision on the first. With no sign of a third hearing in sight to fight the first alleged DUI arrest. Help.
The reason the WV DMV is now attempting to levy a second offense license penalty on your 2010 DUI in WV is due to your more recent Ohio DUI which WV received and resulted in a first offense suspension being levied against you as the 2010 DMV hearing is still pending. Had the 2010 when been concluded favorably then the Ohio DUI would be the only suspension on WV license. Or, had the 2010 WV DUI not conclude favorably on DMV side, then the Ohio DUI would have been a second offense license suspension penalty -which is 1 year down / 2 years mandatory Interlock in vehicle.
Bottom line: They basically have flip flopped in that the more recent Ohio DUI became the first offense license/admin penalty and the older WV DUI case that is still pending on DMV front, now becomes the potential 2nd offense license penalty as it's still pending and the other has concluded prior to it.
Best and only way you're going to get around this, is to WIN the WV DMV hearing on the 2010 DUI case. If not, your looking at the advised 2nd offense admin suspension which is far more penal in length and duration.
Sincerely, Harley O. Wagner, Esq. - WestVirginiaDUILawyers.com
I have had this happen to me on cases as well. DMV is treating your 2010 DUI as a revocation, but acting as if you were appealing the revocation order. So they are counting it as a first, even though there has been no final decision issued in it. Then when they received notice of the Ohio DUI, they issued a second offense suspension.
It makes absolutely no sense for them to treat them in this manner because if you prevail on your 2010 suspension, you will have been suspended for much longer than the required time for a first offense because they had your Ohio suspension labeled as a second.
Your only recourse is to file a Writ of Prohibition/Mandamus in the Kanawha County Circuit Court. If you would like to explore this option, please feel free to contact my office at (304) 933-9883.
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