ELKINS - A felony DUI third offense charge against a Valley Bend man was dismissed without prejudice Monday in Randolph County Magistrate Court.
Matthew Avery Waddell, 53, was arrested by Trooper J.M. Hebb, of the West Virginia State Police, in April after being stopped at a DUI checkpoint in Crystal Springs and allegedly failing three field sobriety tests.
Hebb testified in court Monday that when Waddell arrived at the checkpoint he could smell alcohol coming from the vehicle and that he displayed signs of being under the influence.
"Whenever this officer spoke to Mr. Waddell I noticed the odor of an alcoholic beverage coming from inside the vehicle, and once I spoke with Mr. Waddell I noticed that his eyes were red and glassy, his speech was slurred and I could also notice the smell of an alcoholic beverage coming from his breath," Hebb said on the witness stand.
Hebb said he had Waddell pull off the side of the road so he could administer three field sobriety tests. Hebb added that Waddell failed all three, "indications that he was under the influence of drugs or alcohol."
Hebb said Waddell refused to take a preliminary breathalyzer test and was taken into custody at that time.
Attorney Ty Nestor, who represented Waddell, said the report generated by Hebb said his client was "steady when exiting the vehicle but he was unsteady while standing."
Nestor then asked, "With respect to his (Waddell's) unsteadiness, did you ever inquire if he had any kind of impairments that would not enable him to perform some of these field sobriety tests properly?"
"Yes sir," Hebb replied.
Nestor said, "What specifically did you ask him?"
"I asked him if he had any injuries or ailments that would affect his ability to take the test," Hebb said.
"And what was his response to that, sir?" Nestor asked.
"His response was that his leg was hurting him at that time but he would still do the tests," Hebb responded.
Nestor then asked Hebb if Waddell told him where he had been or what he had been doing that day.
"He said he was at a bar down the road and he had consumed a couple of beers and that he had been working before going to the bar," Hebb said.
Hebb concluded by saying that a warrant for a blood test was ordered on Waddell because he had also refused the Intoximeter test.
Following Hebb's testimony, Waddell took the stand.
Nestor asked Waddell if he had a difficult time performing the field sobriety tests that were administered to him at the checkpoint.
"Yes sir, I can't do it sober," Waddell said.
Waddell testified he had trouble performing the tests due to back, leg and ankle injuries that he suffered during his time in the military. Waddell said he told Hebb about the injuries before attempting the tests.
Assistant Prosecuting Attorney Lori Haynes asked Waddell just one question.
"Did your work conditions and previous military injuries cause the smell of alcohol to be emanating from your vehicle and your breath?" Haynes asked.
"I don't know about that," Waddell replied.
During closing remarks, Haynes said she felt the state had probable cause because the defendant was seen as having slurred speech and glassy eyes, with the "smell of alcoholic beverages coming from the defendant's car and breath," and because he "failed all three field sobriety tests."
Haynes said "even with all the things that prevented him from completing a field sobriety test, those do not explain the odor of alcohol coming from Mr. Waddell's vehicle."
Nestor countered by saying there were no scientific results that said Waddell had a blood alcohol content of .08 percent or above. Nestor said that just because Waddell stopped at a bar, that did not mean he was necessarily impaired by alcohol.
"It is not illegal to have a drink and drive, it is not illegal to have two drinks and drive if you are over a certain weight or what have you. It is only illegal to drive while being impaired and having a blood alcohol content of above .08," Nestor said. "You have no evidence whatsoever, not could you possibly discern a .08 blood alcohol content on my client from any of the information you have, without any scientific testing."
After a 15-minute recess, Chief Magistrate Ben Shepler decided to dismiss the charge without prejudice.
"At no point in time has the state heard any testimony that the defendant was at .08 or greater and at this time, the court has to dismiss this case without prejudice," Shepler said. "However, this case has not heard the results of the blood test. This is dismissed without prejudice, which means it can be brought back up at any time the state wishes to do so."
Also in Randolph County Magistrate Court Monday: