West Virginia Lawyer Blog

In South Charleston, West Virginia, nine employees from an IHOP restaurant had to be taken to the hospital after inhaling a cloud of hazardous chemicals. The cloud was formed when one employee added the wrong type of chemical to a dishwasher used to clean restaurant hardware.

Two chemicals, a degreaser and a chlorine-based cleaner, were mixed together to create the hazardous cloud. The cloud soon filled the air, smelling strongly of bleach. It was large enough that restaurant diners were able to see it and knew that something was amiss. Restaurant workers then called 911 and evacuated diners to the outside parking lot. When emergency first responders arrived, they set up a staging area in a specific location where the wind was blowing the other way, so the cloud would not reach them.

The offending degreaser is known as Delimer, which contains phosphoric acid. The safety sheet accompanying Delimer warns against mixing it with "chlorinated detergents," or the result could be toxic fumes. Under federal law, employers are supposed to provide employees with safety sheets for any toxic substances used in the course of employment, as well as training on how to safely handle the materials. That may not have taken place at IHOP, given that employees allegedly used Delimer with chlorine bleach repeatedly.

It is more common than one would think for people in homes and businesses to mix bleach with other cleaning products. They do so in order to produce a chemical that cleans easier. But the result is a chlorine gas that, at the least, can irritate the eyes and affect breathing. At worst, in stronger doses, it can cause death from asphyxia or pulmonary edema, especially for people with previous respiratory ailments. Fortunately, although nine IHOP employees were taken to the hospital for treatment, none were seriously harmed. Emergency workers cautioned, though, that other symptoms could manifest later.

We at the Wolfe Law Firm have represented many employees who have suffered injuries while on the job. Most employers are required to carry workers compensation insurance; therefore, if an employee gets injured at work, he or she can collect a fixed amount of payments in place of wages until the employee is able to work again. This is true regardless of whether the employee's conduct was at fault. The main exception to this rule is if the employee was injured as a result of being intoxicated or on drugs. If an employer carries workers compensation, however, the employee cannot elect to file a lawsuit instead. The employee has no choice but to take the workers compensation payments.

Continue reading "Nine IHOP Employees Sent to the Hospital After Chemical Cloud Unleashed" »

Will Governor Earl Ray Tomblin's proposal to have mine workers tested for drugs distract from other necessary mine safety repairs? That is what Independent Investigator Davitt McAteer and the United Mine Workers fear.

The drug testing element is part of an overall mine safety bill introduced by the governor. Governor Tomblin's bill is one of two being considered, with the other being introduced by House Speaker Rick Thompson. Both bills have provisions for criminal penalties and automatic shutdown of equipment if the methane levels are too high. However, they differ on other crucial elements. Governor Tomblin's bill features the industry-backed drug testing requirement, while Thompson's features more whistleblower protections and family involvement in investigations.

McAteer calls the drug testing provision a "distraction" and emphasizes that it was not what killed mine workers in the 2010 Upper Big Branch disaster. Autopsies of those killed in the disaster showed no illicit drugs in the mine workers' systems. Instead, the cause of death was decidedly due to Massey Energy's failure to follow safety rules governing mine ventilation and the cleanup of coal dust, which can be highly explosive. McAteer pointed out that nearly three-fourths of the mine workers killed in the Upper Big Branch explosion had black lung disease. A strict limit on the legal level of coal dust in underground mines would help prevent this. McAteer recommended legislation requiring mine companies to use coal-dust meters that would measure "explosibility" levels and also require companies to install ventilation monitors that would keep track of fresh-air flow underground. As part of the settlement, Alpha Natural Resources, which purchased Massey Energy Company, has agreed to implement these changes.

We at the Wolfe Law Firm believe that while worker behavior can be at fault for an accident, creating a safe workplace should be the priority -- especially in an industry as dangerous as coal mining. As McAteer noted, West Virginia is still a leader in mining fatalities. What would happen, though, if the law were passed and coal mine workers needed to be tested?

Most employers are required to carry workers compensation insurance. When you or your loved one is injured in a workplace accident, you would be eligible to receive workers compensation in place of wages during the recovery, even if your conduct contributed to the accident. However, there are exceptions. In many states, if drugs or intoxication contributed to the accident, the worker may be denied workers compensation. That is likely the reason mining companies are pushing to have mine workers tested -- because the company could argue that drugs or alcohol caused, or contributed to, the accident -- or that the worker should be de facto denied just for having had alcohol or used drugs. When that happens, it would be best to find a West Virginia personal injury attorney to explain your options.

Continue reading "Drug-Testing Proposal in Governor Tomblin's Mine Safety Bill Called a "Distraction"" »

The Fourth Circuit Court of Appeals recently reversed a decision by a district court in West Virginia, finding for an insurer who refused to defend an inmate against a lawsuit. Originally, the District Court of the Southern District of West Virginia had found that Ezra Lambert, an inmate at Southwestern Regional Jail, should be defended by National Union Fire Insurance Company because he met the definition of a "volunteer worker."

The incident that sparked the lawsuit took place in 2006. Lambert was working in the jail's kitchen six days a week, eight hours a day, as a cook. Betty Jean Hale, a jail employee who worked in the kitchen with Lambert, alleged that Lambert injured her while pushing a cart carrying a mixer. The mixer fell and injured Hale's foot, resulting in medical bills. Hale then filed suit in state court, naming Lambert along with the West Virginia Department of Military Affairs and Public Safety, and the West Virginia Regional Jail and Correctional Facility Authority. When National Union Fire Insurance Company -- the state's insurance company at the time -- learned that Lambert had been named a defendant, it filed a declaration stating that it had no duty to defend or provide other policy benefits to Lambert.

Both Hale and Lambert sought a court order declaring Lambert insured under state policy, which would allow Lambert to defense as well as indemnification. The district court ruled that Lambert qualified as a volunteer worker under state law, and was therefore covered by state insurance, due to Lambert's work in the kitchen without compensation. However, the Fourth Circuit ruled that Lambert could not possibly fit the definition of "volunteer worker" as defined by statute. Because Lambert was an inmate and forced to work in the jail, he could not be a volunteer. The Fourth Circuit noted that while a volunteer had the freedom to leave work if it became too onerous, when Lambert tried to protest working conditions by refusing to labor, he was put on lockdown. Lambert therefore was not entitled to be covered by the state insurer.

We at the Wolfe Law Firm think that this was probably the right decision, but an unfortunate one. Being an inmate, Lambert likely has little in the way of resources -- Hale probably knew this, which is why she sought coverage for Lambert, so that she could actually receive payment for her medical bills. Now it is unclear what will happen to either of them.

Insurance companies exist to pay out in the event of an accident or a medical issue. The point is to prevent you from going completely broke if you are responsible, or even if you're not. However, too often insurance companies are tight-fisted and refuse to pay what is owed. It often requires the work of an experienced West Virginia personal injury attorney to get insurers to agree to pay out, usually as part of a settlement. While again, the Fourth Circuit's verdict was probably correct, it was a reminder that too often, insurance companies are unwilling to help the customers they are meant to serve.

The family of a patient who died from an untreated urinary tract infection has sued the Charleston, West Virginia hospital where he sought treatment. Back in 2007, Clarence Leroy Dunnavant, who suffered from multiple sclerosis, checked into the Saint Francis Hospital with a high fever caused by a urinary tract infection. However, doctors allegedly misdiagnosed Dunnavant's urinary tract infection, resulting in Dunnavant dying in the hospital less than one day later.

Dunnavant reportedly died after a hole developed in his intestinal tract, causing air to slowly fill his abdomen. The alleged result was that Dunnavant died through slow suffocation. Now Dunnavant's family blames Saint Francis for negligent behavior. They have sued both the hospital and several of its doctors and nurses. The family's attorney argues that Dunnavant's on-call doctor never took the steps required to determine whether Dunnavant had a perforated bowel, and did not even personally examine Dunnavant until shortly before Dunnavant's death. A second doctor failed to notice that Dunnavant's X-ray showed that his abdomen was filled with air and therefore did not call for a radiologist for interpretation. Dunnavant's nurses were also accused of negligent behavior for failing to keep the on-call doctor informed of Dunnavant's symptoms and not following the doctor's instructions for his care.

The on-call doctor insists that he followed careful procedures. He claims that the symptoms relayed to him by the hospital staff throughout the evening led him to believe that Dunnavant was suffering from a less serious ailment. The on-call doctor allegedly ordered all of the treatment based on the information received. In any event, the fates of Saint Francis and its staff, the on-call doctor, and the X-ray doctor lie in the hands of a West Virginia jury.

Medical mistakes are sadly all-too-common, with more than 200,000 occurring each year nationwide. This number is higher than the number of people killed in car accidents, yet mistakes are probably still underreported. The most frequent medical mistakes tend to involve prescription drugs, surgical errors, and birth injury mistakes. Over the years, the Wolfe Law Firm has seen all of these types of cases, as well as the issue involving Dunnavant's case: misdiagnosis and poor care.

Continue reading "West Virginia Family Sues Hospital, Doctors Who Misdiagnosed a Urinary Tract Infection That Led to Patient's Death" »

The Obama administration has announced that it is expanding the FBI's definition of rape, which has been in place for eight decades. Key changes include dropping a requirement that the victim must physically resist the attacker, and expanding the definition to include male victims.

The result will be that more people would be considered rape victims in the FBI statistics, but otherwise, state and federal crime laws will not change. However, rape statistics, as part of overall crime statistics, are used to determine how much money lawmakers allocate toward prevention.

The original definition of rape was "the carnal knowledge of a female, forcibly and against her will." The revised definition states that rape is "the penetration, no matter how slight, of the vagina or anus with any body part or object," without the victim's consent of the victim. In addition, the new definition states that rape is "oral penetration by a sex organ of another person" without consent. The revised definition does not specify gender, and includes the rape of someone incapable of giving consent, either because of the influence of drugs or alcohol, or because of age. The victim no longer needs to put up resistance in order for the act to qualify as rape.

Because of the changes, the number of reported rapes will likely rise, but it is unclear exactly how much. Vice President Biden claimed that the revised definition was a victory for men and women who had suffered, but who went without justice for 80 years.

It is always helpful for a West Virginia criminal defense attorney to be aware of changes in the law -- for rape or any other crime -- when defending clients charged with crimes in this state. The new legal definition, while long overdue, will obviously pose new challenges for criminal defense attorneys. Behavior once thought to be "acceptable" would now be unacceptable, and people might find themselves charged with crimes that would not have been crimes in previous years.

Continue reading "Change in Federal Definition of Rape May Change the Way Rape Crimes Are Dealt With in West Virginia, Other States" »

Recently, five people were arrested in Charleston after police discovered a methamphetamine laboratory in a private home. The police investigated the home at 9:30 pm in the evening after receiving an anonymous tip. Although the homeowner, Shane Thaxton, told police that there were no illegal substances in the house, he gave written consent for the police to investigate. The search of the home and the surrounding buildings allegedly unearthed a methamphetamine laboratory. The laboratory contained ingredients such as residue, rubber gloves, coffee filters, and some small plastic bags containing an unknown white powder. Police ended up arresting Thaxton and four other adults living in the house, their ages ranging from mid-20s to their 30s. All were later taken to prison, where their bail was set at $25,000 apiece.

Addiction to methamphetamines is a problem that is nationwide. Methamphetamine is a crystallized powder referred to by various names, including "crystal meth," "meth," or "crank." People take "meth" for a variety of reasons -- for greater energy, self-esteem, and euphoria. However, meth use can also lead to a greater likelihood of anxiety, depression, and decreased appetite.

Meth is a big problem in West Virginia, both in terms of use and production. Most meth available in West Virginia is produced locally, with whatever is left over is shipped to border states or Mexico. Meth levels are reported to be higher in the western end of the state than the eastern end. Meth is frequently produced in home laboratories, where it can be done cheaply and privately. A telltale sign that meth is being produced in a private home is a noxious chemical odor emanating from it. Those who are caught producing or taking meth will be subject to strict federal drug laws. In that case, they would need a West Virginia criminal defense attorney to defend them and try to reduce their charges.

Many people who use and produce methamphetamines do so for reasons that are complicated and are not always generally understood. Nonetheless, even people guilty of a criminal act need an attorney to represent them. A criminal attorney can investigate whether police used all legal procedures to obtain evidence. For instance, in this case, the homeowner gave written consent for the police to enter and search. Assuming that the written consent was not forced, that is a valid way for police to search a home without a warrant. However, often permission to enter is not so clear cut. Ideally, police should have a warrant that states specifically what they must search for, and they must not go outside the bounds of the warrant. In reality, police may enter and search a residence without a warrant, which violates the homeowners' Fourth Amendment rights. Even if police had a search warrant, it may be too vaguely worded, or the police might ignore its scope and search throughout the house when they should limit their search to the downstairs rooms. An experienced attorney would investigate this and argue that the evidence obtained in these searches was illegal and should not be admitted in court. We at the Wolfe Law Firm have years of experience with criminal defense. If you need an attorney to represent you in a criminal proceeding, give us a call.

Circuit Judge Alan Moats has asked West Virginia lawmakers to review the state's definition of child abuse and neglect to include parents who keep their (otherwise healthy) children home from school on a regular basis.

Although Judge Moats does not think that children kept out of school are in physical danger, he believes that they are still harmed by the experience because their parents are denying them a constitutional right to an education. At present, West Virginia Code Chapter 49 states that abuse and neglect consist of harm, or threatened harm, to a child's welfare or health. This is done by a physical, mental, or emotional injury, such as corporal punishment or sexual abuse. The Code does not permit any leeway that would let it apply to non-health-related crimes -- any prosecutor bringing a case of child neglect must prove harm to the child's health.

Yet Judge Moats believes that keeping a healthy child out of school has long-term costs: truancy can be passed down in families, from generation to generation. Many child truants end up dropping out of school altogether -- 34,547 people over the past decade. While Judge Moats acknowledges that other problems such as depression, bullying, or drug abuse could be the reason, he also thinks that parental habits are a problem. Parents won't or can't take the children to school. Sometimes children have to be the "adults" of the household and take care of younger siblings while the parents are ill. Several parents have gone to great lengths to keep this arrangement in place, including finding doctors willing to sign a sick note for their children regardless of their health.

Children who frequently miss school are also more likely to get involved with illegal drug use and other crimes. Their teachers face the strain of having to teach class work all over again if the children ever do return to school. Judge Moats hopes that if educational neglect is added to the state Code, it will have a positive effect.

The child negligence here is very different from the kind we at the Wolfe Law Firm typically deal with. Child injury is usually physical, in the form of physical abuse or accidents caused by malfunctioning products or outside parties (such as car accidents). When one discovers that a child has been physically abused, it is possible to go out and hire a West Virginia child injury attorney to represent the child against the one responsible for the abuse. Similarly, when a child is injured as the result of an outsider's negligence, an experienced attorney could represent the child against the one who caused the harm. However, Judge Moats brings up an interesting difficulty: what happens when the "neglectful" behavior is a cultural norm? Many probably think that a child staying home to care for the family, for instance, is perfectly acceptable and not abuse at all. Other times children might stay home to help parents with very arduous labor. It may be hard to convince some West Virginians that this norm may harm the child in the long run. Hopefully Judge Moats's efforts will yield the right results.

In State v. Wall, the West Virginia Supreme Court of Appeals recently affirmed a lengthy sentence given to a petitioner convicted of sexual abuse. The decision is a reminder that in West Virginia, "[t]here is no absolute right . . . to plea bargain."

Edward William Wall originally pleaded guilty to charges of sexual abuse and was convicted. He served 16 months of his sentence before being released on probation. Less than four months later, a petition of revocation was filed, and Wall pled guilty. After his sentence was reinstated and then suspended, he was allowed to resume probation. Less than a year later, Wall's probation was revoked once again. Wall tried to convince the court to transfer his probation to Ohio, where he could live with his parents. Judge Knight, a temporary appointee sitting in the place of a recently retired judge, ordered the probation office to check if Wall could live with his parents. At the same time, Judge Knight reinstated Wall's original sentence of 10 to 20 years. After Wall tried and failed to have his request reconsidered by another judge, he filed an appeal with the West Virginia Supreme Court of Appeals.

Wall argued on appeal that Judge Knight would have allowed him to reinstate probation if his transfer to Ohio were approved. Because of this, Judge Knight's oral announcement of sentence was enforceable like a contract. Failure to honor the plea agreement to have Wall's probation reinstated was the same as a contract breach. The State responded that there was no agreement -- or if there was, it was non-binding since it was issued by a temporary judge.

The West Virginia Supreme Court of Appeals agreed, and went further by noting that "a circuit court does not have to accept every constitutionally valid guilty plea merely because a defendant wishes so to plead." The Supreme Court of Appeals emphasized that Rule 11 of the West Virginia Rules of Criminal Procedure defines a plea agreement as something between a West Virginia criminal defense attorney and the prosecutor, with no involvement from the judge. There was no evidence that discussions between Judge Knight and Wall's defense attorney represented a plea agreement, as Judge Knight made no promises that he would sentence Wall to probation in Ohio. Overall, the Supreme Court of Appeals found that the lower court did not abuse its discretion by revoking Wall's probation and by reinstating Wall's original sentence of 10 to 20 years.

We at the Wolfe Law Firm have represented many criminal suspects and are very familiar with plea bargaining. In fact, most criminal cases nationwide are settled by plea bargaining rather than by a trial. An experienced criminal defense attorney would know how to work out an agreement with the prosecutor to reduce his or her client's possible sentence. While a defense attorney may believe that his or her client is innocent, in reality it may be a difficult case to prove. A successful plea bargain could allow a client to serve a less burdensome sentence and take the next step in life.

An Ohio County Prosecutor will not be involved in a case against a Wheeling police officer due to a conflict of interest. The reasons given for not having Prosecutor Scott Smith involved in Officer Matthew Kotson's case -- in which Kotson has been accused of sexually assaulting two women -- is because Smith's office has long had a close working relationship with the Wheeling police department.

Kotson is accused of assaulting two women during different times. One woman later visited the Wheeling police department on Thanksgiving Day with the charge that Kotson had assaulted her that morning. Kotson allegedly went to her home and began making unsolicited sexual advances, which did not stop despite the woman's pleas. Kotson allegedly followed the woman into her bathroom and pushed her against the wall before sexually assaulting her. Later, while not admitting to sexual assault, Kotson allegedly admitted that he visited the woman's house and touched her in a sexual manner.

Statements by other women conformed to Kotson's accuser's claims. Each women with a prior relationship with Kotson alleged that he made aggressive sexual advances on multiple occasions. One even claimed that Kotson held her down and forced her to take part in nonconsensual sex three separate times. Kotson has been put on unpaid leave, and the police department is looking into disciplinary action. Meanwhile, the Ohio County Magistrate arraigned Kotson on four counts of second-degree sexual assault. Kotson was able to post a $40,000 bond to secure his release.

Prosecutor Smith does not know whom the West Virginia Prosecuting Attorneys institute will try to get in his place, but they normally try to find prosecutors in a neighboring county. Smith noted that the process is common, and that Ohio County prosecutors handle several other matters that originated in other counties. Besides a special prosecutor, a magistrate is also expected to work on Kotson's case.

The Wolfe Law Firm supports the West Virginia Prosecuting Attorneys' actions. Integrity in any criminal case is important, especially when a person's freedom (or even his or her life) is at stake. Even though one would think that a West Virginia criminal defense lawyer would like to see the prosecutor be lenient on the criminal suspect, it shouldn't be under suspicious circumstances, such as if the prosecutor were a close friend or colleague of the suspect. In order for the criminal justice system to function, people need to believe that it works. That means the evidence was gathered without police violating Constitutional protections. It also means police officers can be held properly accountable for their unlawful actions, whether during the course of employment or in private. And it means that all conflicts of interest are discovered and removed before the case gets underway.

Continue reading "Conflict of Interest Prevents Ohio County Prosecutor From Overseeing Case Against a Wheeling Police Officer" »

The West Virginia Supreme Court has ordered a new trial for Rhonda Stewart, a 43-year old accused of killing her husband. Back in 2009, Ronda Stewart shot her estranged husband while he was in the intensive care unit at Charleston Area Medical Center. She claimed that she suffered from Battered Woman's Syndrome, but was nonetheless sentenced to life in prison with the possibility of parole in 15 years. The West Virginia Supreme Court's 3-2 decision reversed this conviction.

The Supreme Court's reasoning was that Rhonda Stewart was never given a fair trial. Kanawha County Circuit Judge Tod Kaufman never permitted evidence of battered women's syndrome into the trial. Had evidence been admitted, the Supreme Court stated, the jury might have reasonably found that Stewart's behavior was affected by years of abuse.

Background of the case is as follows: Stewart had been married to her husband, Sammy Stewart for 38 years (she was 16 when they married; he was 29). Husband and wife were estranged for several years, so that when Sammy was admitted to intensive care, he ordered Rhonda to leave. Rhonda later decided to go back to the hospital allegedly to commit suicide in front of her husband because "[she] wanted him to know that [she] wouldn't bother him any more." Instead, according to her testimony, Rhonda Stewart's pistol accidentally went off when she tried to wake her husband up.

One of the witnesses, a health unit coordinator for the MICU unit, testified that she heard Sammy Stewart's monitor beeping, and entered his room to find Rhonda "standing there with a gun to [his] head." Rhonda Stewart was arrested and indicted for first-degree murder. At her trial, the prosecutor claimed that Stewart intentionally and maliciously sought to kill a helpless man. Judge Kaufman then made the decision to not admit Battered Women's Syndrome evidence, stating: "There is no case law that existed in West Virginia that extends that defense to this remoteness in time." So Stewart's trial proceeded without the evidence, and Stewart has sat in jail since March of 2010.

We at the Wolfe Law Firm believe that the West Virginia Supreme Court made the right decision. While Stewart could yet be convicted of first-degree murder (her abuse allegedly took place three years before the shooting), it is important for all relevant evidence to be admitted. That Stewart was an abused spouse could be a significant factor in the jury's decision making.

Continue reading "West Virginia Supreme Court Overturns Conviction of Woman Who Killed Her Husband, Orders a New Trial" »

Americans have higher rates of gun ownership than ever before, and West Virginia is one of the states that leads the way. According to a Gallup poll, 47% of American adults report having a gun in their home, up 2 or 3% from back in 1993. West Virginia adults ranked fifth in the nation, with 55.4% carrying a gun.

The reasons for the rise in gun ownership -- or at least the reporting of gun ownership -- are not clear, though one private gun dealer speculates that it could be because many feared that President Obama would sign legislation that restricted gun use. Other reasons could be that many people want to take advantage of concealed carry, or are simply more comfortable with letting others know that they have a gun. The Gallup poll found that only 26% of people were in favor of a legal ban on the possession of handguns.

Gun ownership is a time-honored tradition in West Virginia. Like anything worth having, it is worth doing right. That is why those who own a gun should know how to use it responsibly. West Virginia requires individuals at least 21 years old to apply for a license: this involves providing (1) a $75 licensing fee, (2) important information such as a Social Security number, (3) proof of residency, (4) proof of mental competence, (5) proof that he or she does not have a substance abuse problem, and (6) proof that he or she has not committed a prior felony or other acts of violence. Sadly, even with these requirements, West Virginia ranks in the national top 10 for gun-related deaths, with 15 deaths per 100,000 residents. Some of these deaths are accidents and some are from murder.

The Wolfe Law Firm has represented many people accused of illegal gun use both in federal court and in West Virginia Circuit Court. In West Virginia, two notable charges are wanton endangerment involving a firearm and felony possession of a firearm. Wanton endangerment involving a firearm, or "wantonly perform[ing] any act with a firearm which creates a substantial risk of death or serious bodily injury to another" can carry up to five years in prison. Many people don't understand the consequences of their actions when they use a gun, which is why they need an experienced West Virginia criminal defense attorney to represent their interests. A criminal defense attorney could work to have their charges reduced, depending upon the circumstances.

Accidental shooting could also lead to a civil lawsuit, with the injured party suing the shooter for negligence. The injured party would argue that the shooter had a duty of care to the injured party to operate the gun according to state regulations. The shooter breached his or her duty by operating the gun carelessly. The breach resulted in the injured party's injury (getting shot) and the injured party suffered damage such as a gunshot wound. Besides being subject to the criminal code, the shooter could also be forced to pay a sum of money for the injured party's medical expenses and pain and suffering. That is why if you or your loved one is in such a situation, you should find an attorney to represent your interests as soon as possible.

West Virginia is the second highest state on an unflattering list: the number of prescription drug overdoses in the nation. Only New Mexico has more. It is also home to prescription pill trafficking, described by one U.S. Attorney as the "number one problem facing law enforcement in the Northern Panhandle."

Dubbed "America's Most Medicated State" in 2010, West Virginia physicians are the most likely to give out prescriptions -- 18.4 prescriptions per capita, to be exact. Many of these prescriptions are for valid purposes, as many West Virginians have "comorbid" conditions that require several drugs. More than 68% of people are obese, more than a quarter (27%) smoke, and 20% are disabled. At the same time, many people use and abuse prescription drugs for non-medical reasons. The ease of doling out prescriptions has made West Virginia a "source" state for people from other states who can't get prescription drugs as easily. Federal and state law enforcement agents are now working together to put a stop to trafficking crimes related to prescription drugs.

While drug trafficking is a legitimate concern, too many people face harsh sentences for minor drug possession. We at the Wolfe Law Firm have seen our share of drug cases at the state and federal level. On the federal level, the Wolfe Law Firm has defended criminal suspects against drug distribution charges brought by the FBI, the Bureau of Alcohol, Tobacco, and Firearms (ATF), and the U.S. Attorney's Office. At the state level, the firm has defended suspects accused of (1) possession of drugs with intent to deliver, (2) delivery of a controlled substance, and (3) manufacturing of a controlled substance. Anyone suspected of a drug crime would be wise to find an experienced West Virginia criminal defense attorney as soon as possible.

One reason is because of the United States Sentencing Guidelines, which can provide disproportionately harsh sentences for seemingly minor crimes. The Sentencing Guidelines use a sentencing table that contains the level of the crime, the zone of the crime (the zone dictated the length of the sentence), and criminal history. From there, the Sentencing Guidelines are meant to produce a fair sentence and create more certainty. Unfortunately, too often the Sentencing Guidelines have done the opposite. Only in 2010 did the Sentencing Guidelines eliminate the significant difference in sentences between possession of crack cocaine and possession of cocaine base. (Thankfully, the United States Sentencing Commission has voted to make the 2010 amendment retroactive.) While federal judges are not required to follow the Sentencing Guidelines (they are just "advisory"), many of them still do.

Being caught possessing drugs -- with no intent to sell or distribute them -- should not mean the loss of your freedom for years. That is why if you or your loved one are caught with drugs, an experienced attorney is crucial for your defense. Experienced criminal defense attorneys know how to get evidence thrown out if it is the product of an illegal search, or could successfully get a sentence reduced. If your loved one has been charged with drug trafficking, don't wait -- find a criminal defense attorney immediately.

The United States District Court for the District of Arizona, on May 9, 2011, issued an opinion in Haro vs Sebelius, wherein the court held that the Secretary's for DHHR application for a 60-day reimbursement requirement did not give immediate collection actions of Medicare beneficiaries. The MSP provisions did not authorize the Secretary to bring direct action against the medicare recipient to collect disputed reimbursement claims.

What this means is if you are in a car accident in West Virginia and you have medicare or medicaid which pays for medical services DHHR cannot bring a suit to seek repayment if you dispute the amount of reimbursement they are seeking. The reason is simply what if they are seeking to be paid back for bills which are unrelated to the accident?

The Haro vs. Sebelius case was brought on behalf of Medicare beneficiaries and their attorneys against the Secretary of the Department of Health and Human Resources regarding the confusing Medicare Secondary Payee provisions wherein Medicare seeks to be reimbursed for monies that were paid to either someone who was injured in a liability case, a Workers' Compensation case or a no-fault case. The suit was declaratory judgement action wherein the attorneys and the beneficiaries of Medicare were seeking to get a ruling on whether or not the Secretary's practices were permissible, or whether it violated a due process clause in the United States Constitution. The plaintiffs sought a declaratory judgement and an injunction to prevent the Medicare Secondary Payee program from seeking collection from the beneficiaries who had received benefits through Medicare.

Continue reading "Centers for Medicare and Medicaid Services Released New Conditional Final Payment Letters on June 27, 2011." »

On June 22, 2011, the West Virginia Supreme Court released its opinion in the State of West Virginia versus David Wayne Kaufman, an appeal from the Circuit Court of Wood County. This case was a confrontation clause case under the Sixth Amendment of the United States Constitution. In the State vs. Kaufman, the West Virginia Supreme Court issued an opinion with ten syllable points. What is clear is that the West Virginia Supreme Court continued support of the defendant's right of confrontation under the Sixth Amendment.

The West Virginia Supreme Court found that any admission of extrajudicial testimony under the confrontation clause is not admissible unless they can: 1) demonstrate the unavailability of the witness and 2) prove the reliability of the witness' out-of-court statement. On the question of whether or not the reliability of an out-of-court statement deals with the exceptions to hearsay, the West Virginia Supreme Court found that you do not have to make an inquiry as to the reliability statement where it falls into a firmly routed hearsay exception. Now this decision is a continuation to follow up Crawford vs Washington, wherein, the United States Supreme Court said that the Sixth Amendment of the United States Constitution and also the West Virginia Constitution, which would be Section 14, Article 3, bars the admission of testimonial witness where the person is not to appear at trial.

Crawford also was supported by the decision of State vs. Mechling, where they said a testimonial statement of a witness who does not appear at trial does not come in unless the witness is unavailable and Mchugh's had a prior opportunity to cross-examine that witness. Now after Crawford, there was a lot of discussion and opinions around the country as what is testimonial. Now the West Virginia Supreme Court in State vs Kaufman said that a testimonial statement is generally a statement that is made under circumstances which would lead an objective witness to reasonably believe that the statement would be available for use later at trial. This language was taken from syllabus 8 of State vs Mechling.

Continue reading "West Virginia Supreme Court in State vs. Kaufman Continues to Support the Confrontation Clause and Questions Admissibility of Out of Court Statements being Admitted at Trial" »

Insurance companies, out-of-state interest and the US Chamber of Commerce have ridiculed the West Virginia judicial system non-stop. This is in a concerted effort to eliminate the citizens of West Virginia access to our court system. If a everyday person cannot have access to the Court we all lose a significant constitutional right. One that our founders fought for and was one of the reasons we started this Country. You may ask how is that happening? First, most people cannot afford an attorney. If they are injured in an accident and the other party is at fault, people can no longer settled their claim. The insurance companies do not fairly evaluate claims causing people to have to hire an attorney and often file suit.

Most people do not want to file suit and at first feel the insurance company will properly handle their claim. A person who handles his or her own claims is trusting the very persons whose job it is to not pay your claim or to pay you as little as possible. This is a clear conflict of interest.

Next, our governor and legislature took away the third party bad faith law which used to monitor the claims process. Now insurance company have no rules and can treat citizen with claims however they please.

For insurance company's the name of the game is to delay and make the process as expensive as possible. In this system the only person who can afford to go to court has the ability to use the court system. This is the insurance company or a corporation. The request for an intermediate court is along the same lines of thinking. Remember if you are an insurance company, you want to delay the case and constantly defend. What better way to continue to delay than to put in place another layer of bureaucracy.

Continue reading "Intermediate Court of Appeals is it Good for West Virginians?" »