Four-year-old DUI charge against McCreary attorney dropped

A nearly four-year-old drunk driving charge was dismissed Tuesday against a McCreary County Master Commissioner and Trial Commissioner, who also had a pretrial suspension of his driver’s license lifted.

"I think justice was served," defense attorney Gary Crabtree said after the hearing.

Constable Jim Thornton, who investigated the accident, couldn’t disagree more.

"It makes me mad. It is just good old fashioned politics in Whitley County that is what it amounted to. I did not agree to none of it, and I think it is bull," Thornton said.

Timothy D. Lavender, 59, of Whitley City, was initially arrested on June 8, 2007, and charged with first-offense DUI and possession of an open alcoholic beverage container in a motor vehicle.

Tuesday afternoon, Wayne County Attorney Thomas Simmons, who was the second special prosecutor in the case, said that he had no choice, but to go along with a motion to dismiss the charges because of an agreed order that was signed by his predecessor.

"It appears my hands are tied in this matter," Simmons told Special Judge Ralph E. McClanahan II during a hearing in Whitley District Court Tuesday that lasted less than five minutes.

Defense attorney Gary Crabtree said that he agreed with Simmons, and McClanahan signed the order dismissing the case.
McClanahan also dismissed a pretrial suspension of Lavender’s driver’s license that he issued on March 10 in the case.
Lavender was in a 2001 Ford F-150 truck on June 8, 2007, when a vehicle accident occurred on KY 92W that was allegedly Lavender’s fault. Thornton said he was working another accident on the other side of the mountain that Lavender passed by before getting into a three-vehicle wreck of his own on KY. 92 about three miles west of Williamsburg.

Lavender allegedly left skid marks where he went across the double yellow line, and side swiped one vehicle before hitting another nearly head on, Thornton said.

Police recovered five fifths of liquor in Lavender’s vehicle, including an open bottle that was stuck between the driver’s seat and the center console, Thornton said.

After Whitley County Attorney Paul Winchester and District Judge Cathy Prewitt recused themselves from the case, Roger Elliott was appointed as special judge. McCreary County Attorney Phil Chaney was appointed as special prosecutor in the case. He has since retired.

On July 21, 2008, Elliott signed a court docket indicating that Chaney and Lavender’s former lawyer, Ron Reynolds, had reached an agreed order that would be tendered in the case.

While Reynolds and Chaney signed the agreed order, Elliott never did, and it wasn’t entered in the case file until 2011 after the News Journal started making inquiries about the status of the case.

"Viewing the evidence in a light most favorable to the prosecution there is an absence of proof of operation and/or intoxication at the time of operation to the degree that the Commonwealth would be unable to prove its case beyond a reasonable doubt. Therefore, it is hereby agreed and adjudged that the above-styled matter is hereby dismissed with prejudice," the unsigned order reads.

Crabtree noted during a hearing last month that there is case law that an independent motion by the prosecutor must be sustained unless it is against public interest.

Simmons, who was assigned as special prosecutor on Feb. 23, said that the previous special prosecutor signed the agreement, and due to case law the agreement was binding because everyone signed it.

While the judge hadn’t signed the agreement, he signed a docket order agreeing to it, Simmons said.

"Any time the commonwealth makes an offer, and there is detrimental reliance, the courts can hold us to it and we can’t withdraw it. Then if the judge accepts it, there is nothing we can do," Simmons said.

After the hearing, Lavender said that he would make any comments about the case through his attorney.

"There was evidence that there was another driver, and a lack of evidence to prove that Mr. Lavender was driving. I think there was a good cause for what the special prosecutors did, and I think justice was served," Crabtree said after Tuesday’s hearing.

Thornton strongly disagrees. He said that every witness at the accident scene said that Lavender was the driver.

"He (Lavender) told me he was the driver," Thornton said.

There was never any hearings held in the case to determine what the evidence was. "They never contacted me or any other police officers that was there," Thornton said. "The decision was made behind closed doors."

Thornton added that Reynolds, who was Lavender’s original lawyer, and Elliott, who was the first special judge, had their own share of legal troubles.

Reynolds pleaded guilty to extorting clients in federal court last month, and had his law license suspended. Last year, Elliott resigned as a special judge after being publicly reprimanded by the Judicial Conduct Commission over an allegation that he wrote a bad check.

When asked whether he would have signed off on the agreed order if he had been the original prosecutor in the case, Simmons said he couldn’t make any comments regarding that.

"I don’t know," he said. "Basically the only thing I looked at was what this order was going to do to the case. I talked briefly to the constable, who was one of the arresting officers. Basically it was just case law and that order that locked everybody in. It locked me in."

Pretrial suspension

After the accident, Lavender allegedly failed three field sobriety tests, and refused requests to take blood, urine and breath tests to determine his blood-alcohol content, according to his arrest citation.

Kentucky law mandates that anyone who refuses to take a blood, breath or urine test to determine blood alcohol content while operating a motor vehicle is subject to an automatic license suspension of 30 to 120 days, regardless of whether or not they are found guilty of any other crime. The suspension can take place prior to a trial.

On March 10, 2011, over the objections of Reynolds, who was Lavender’s attorney at the time, McClanahan entered a pre-trial suspension order of Lavender’s driver’s license.

McClanahan lifted the pre-trial suspension order Tuesday.

Simmons said that the pretrial suspension order was lifted because the case was dismissed.

"Once they dismiss the case, the case is gone," he said.

Should Lavender’s license have been suspended pretrial when the case was first filed?

"Probably. Most judges do that upon a refusal," Simmons said.

Crabtree said, that he doesn’t think that the law mandates an automatic driver’s license suspension for refusing a breathalyzer test, but that Lavender did have a 33-day pretrial suspension of his license in this case.