Special Judge Chris Clemens of Roanoke found Ward guilty and sentenced him to a 12-month jail sentence, with 11 months suspended. Clemens told Ward he would have to serve the term on weekends beginning Feb. 17 at 7 p.m. Clemens also suspended Ward’s driver’s license for three years and fined Ward $1,000, with $500 suspended, and ordered him to attend VASAP classes. After the sentencing, Ward appealed the decision to Carroll County Circuit Court.
Ward, 66, was arrested and charged with DWI, second offense on Oct. 10, 2011 at about 8 p.m. on Airport Road by Carroll County Sheriff’s Office Deputy Anthony Horton. At the beginning of Friday’s court hearing, Ward pled not guilty.
Horton testified that he followed Ward after receiving a dispatch of a possible reckless driver. Special Prosecutor John Alexander of Botetourt County then presented a video to the court of Horton following Ward’s vehicle, as well as Horton’s questioning of Ward, and Ward’s field sobriety test.
In the video, Horton follows Ward’s silver GMC for approximately three- to five-minutes. During the video, Ward’s vehicle crosses the double yellow line several times, at one point driving in the wrong lane for a few seconds. Ward’s vehicle also ran off the right shoulder of the road into the grass on at least three occasions. After one final crossover into the grass, Horton’s sirens come on and he is shown following Ward for a while longer until another Carroll County Sheriff’s Office vehicle passes Ward and pulls in front of him to stop the vehicle.
“Hey Jim, how are you doing? You are all over the road,” Horton tells Ward after he exits his vehicle.
Ward explained that he was trying to get home, that his wife had called him about a condition she was having. Horton then asked Ward if he was suffering from any medical conditions that night. Ward said he was trying to get to his wife. Horton said he understood that, but then asked Ward if he had anything to drink that night. Ward replied, “Not much. I had some this afternoon. I’ve got to see how she is doing.”
Horton said he realized Ward wanted to get home, but said he didn’t want to see Ward get hurt trying to drive. Another officer in the video then tells Ward he can smell a strong odor of alcohol. Shortly after that point, Alexander asked the judge if the video could be advanced to the field sobriety tests.
Before asking Ward to perform a finger-to-nose touch test, Horton demonstrated what he wanted Ward to do. He asked Ward to close his eyes and touch his finger to his nose, using either his right or left hand, depending on which hand Horton instructed him to use. Horton kept his eyes open while demonstrating for safety reasons, but said Ward would need to close his eyes. During the actual test, Horton had to remind Ward to close his eyes and lean his head back.
Horton also asked Ward to do a heel-to-toe walking test and had him say the alphabet up to the letter P.
“A,B,C, D, E, F, G,” Ward responded before pausing several seconds. He then started again and quickly went through the letters to P.
Shortly after, Alexander asked for the video to be stopped and offered it to the court for evidence. Horton also testified that he didn’t attempt to pull Ward over sooner because there were no good spots to pull over for a while, so he waited to turn on his sirens until a safe pull over spot was reached.
Alexander asked Horton to describe what the officer noticed in the field sobriety tests. Horton said when he gave the finger-to-nose touch test, he had to tell Ward to close his eyes. He said Ward also touched his nose several times with the middle parts of his finger instead of the tips, like Horton had asked him to do. The officer added that Ward had a strong odor of alcohol about him and Ward also stated that he had had something to drink.
Later, Ward’s defense attorney Joe McGrady moved to suppress a criminal complaint on the basis that it wasn’t signed by the magistrate. McGrady also made a motion to strike because he said Horton never explained implied consent to Ward.
“Like any citizens he has a right to know about implied consent and it was not explained to him,” McGrady said.
Alexander argued that while not explaining implied consent would be a “killer” to a refusal to take a breath test charge, it is not required for an actual DUI charge based on Ward’s cooperation.
“I deny that motion,” Clemens said of McGrady’s motion to strike,.
McGrady then countered with a motion to strike the case based on what he said was Horton’s failure to enter the jurisdiction.
“He said it was of Carroll County, but there are several Carroll Countys. There is a Carroll County, Mississippi,” McGrady said. “But he never noted the jurisdiction as the County of Carroll in the Commonwealth of Virginia.”
Clemens denied McGrady’s motion to strike. Alexander then asked the court to find Ward guilty of DWI, second offense in five years. McGrady also asked Clemens to consider the fact that Ward was a gentleman and cooperative during his arrest. Clemens then handed down his verdict.
“Mr. Ward, I counted 11 times you went over the yellow double line to the left and three times to the right. You were charged with a misdemeanor. Had someone been killed in one of those curves, you could be charged with felony manslaughter,” Clemens said. “I don’t know what happened in 2009 (when Ward was also found guilty of DWI in Carroll County) but you can’t do that as a citizen and clearly not as an example of the court. You are an example for everybody.”
Clemens then found Ward guilty and handed down the sentence. He said Ward would have 10 days to appeal the decision.
McGrady then told the judge that Ward is 66 and has health issues.
“I’m not sure he can withstand being incarcerated,” McGrady said. “I ask the court if it can consider an alternative punishment such as a home electronic monitoring device.”
Clemens said he would consider that if there was a way in the statute, but the minimum requires a mandatory term in jail.
“If the jail has a way to do it I would, but I won’t do it myself,” Clemens said.
After Clemens’ ruling, Ward appealed the decision to Carroll County Circuit Court.
According to Carroll County court records, Ward was also arrested for DWI on March 20, 2009. He was found guilty of the charge in Carroll County General District Court later that year and ordered to pay a $250 fine, issued a 30-day suspended sentence, ordered to attend VASAP classes, and his driver’s license was suspended for 12 months.
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