WHEELING - The Wheeling Police Department is encouraging its officers to review the state and city codes after incorrectly charging Delegate Ryan Ferns.
Officers cited Ferns, 29, of Wheeling on Friday for DUI. Deputy Police Chief Martin Kimball acknowledged that Ferns should have been charged with aggravated DUI because his blood-alcohol content was above 0.15 percent.
Ferns, D-Ohio, registered a blood-alcohol content of 0.229 percent, according to Kimball. The legal limit for driving is 0.08 percent.
Kimball said he spoke with one of the arresting officers, who informed Kimball he routinely charges DUI, then relies on the prosecutor's office to advise him on whether the charge should be elevated to aggravated DUI. While officers are granted a certain latitude in the field, Kimball said, they should be less reliant on the prosecutor's office and evaluate the charge more closely from the outset. The aggravated DUI law is relatively new, he added, but the department is instructing its officers to review all codes.
"Every officer has discretion, and we're certainly not trying to take that away from them, but proper charging is important no matter what type of crime is committed," Kimball said.
West Virginia law does not require officers to transport an individual arrested for DUI to jail, regardless of blood-alcohol content, Kimball added. Officers at police headquarters issued Ferns a citation for DUI and released him to his father.
A police report states while Ferns was being processed at police headquarters around 4 a.m., he received a call from former Ohio County sheriff and current sheriff candidate Tom Burgoyne.
Burgoyne on Tuesday said Ferns' family made him aware of the situation shortly after the arrest. He said he called Ferns, who put him in contact with one of the officers.
Burgoyne said he never attempted to influence police, and he only contacted Ferns to get the details of the situation.
The potential penalty for first-offense DUI is a jail term of no more than six months and a $100 to $500 fine. Magistrate Patricia Murphy fined Ferns $500 and ordered him to pay $315.80 in court costs. Ohio County Assistant Prosecutor Michael Olejasz said he expects Ferns' license to be suspended for 45 days and the test and lock device to be installed in his vehicle for nine months.
Aggravated DUI carries a potential jail term of two days to six months and a $200 to $1,000 fine.