Special judge orders Lavender to surrender driver’s license

A McCreary County Master Commissioner and Trial Commissioner, accused of being drunk behind the wheel when he allegedly caused an accident in Williamsburg in 2007, has been stripped of his driving privileges — three and a half years after he was originally charged by police for the incident.

Senior Status Judge Ralph E. McClanahan II made the decision last Thursday in Whitley District Court regarding Timothy D. Lavender, 59, of Whitley City. 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. It also establishes minimum jail times (which cannot be probated, suspended, conditionally discharged or otherwise subject to early release) if there is a DUI conviction.

Lavender 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.

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. Whitley County Third District Constable Jim Thornton investigated the case. Lavender allegedly left skid marks where he went across the double yellow line, and sideswiped 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. He allegedly refused requests to take blood, urine and breath tests to determine his blood-alcohol content.

But while McClanahan did order Lavender to suspend his license, the case remained stuck in the quagmire of legal mishaps and strange circumstances that have plagued it from the very beginning. It was scheduled for a pretrial conference last Thursday, but that was aborted because, for the third straight time, no prosecutor was present.

“It’s a comedy of errors,” McClanahan said from the bench, clearly irked by the seemingly steady stream of delays in the case. “I don’t know where blame is to be made. This is my third appearance here without a Commonwealth representative. We appear to be getting closer and closer because at least we have an individual living and breathing, although he is not here today, that has been appointed by the [Attorney General’s] office.”

Thomas Simmons, County Attorney in Wayne County, was chosen by Attorney General Jack Conway on Feb. 23 to be the special prosecutor in the case. Whitley County Attorney Paul Winchester stood in for Simmons as a “friend of the court” during Thursday’s proceedings and said that Simmons did not appear because notice of his appointment had been mailed to the wrong address.

Clearly frustrated, McClanahan said he plans to hold Simmons in contempt of court if he does not appear for the next scheduled hearing in the case on March 31 at 1:00 p.m.

Williamsburg Attorney Ron Reynolds, who has represented Lavender, said the pretrial suspension of his client’s license without a hearing is unconstitutional. Before the decision was made, he asked that all charges against Lavender be dismissed.

“The court used the term ‘time is of the essence’ in this case on numerous occasions … so, you know, my client and myself, we’ve always been here. We’ve always accommodated the court,” Reynolds said. “We’ve submitted agreed orders to judges. We’ve reached agreements. We thought this case was over and here we are again. It’s a highly publicized case. In all fairness to the defendant, I don’t think any defendant needs to go through what Mr. Lavender has been through at no fault of his own. I ask the court to dismiss this case with prejudice.”

McClanahan denied Reynolds’ motion, saying there had been no motion for a speedy trial in the case. Reynolds countered he did not make such a motion because the charges had already been resolved, pointing to an agreed order submitted in 2008 that would have essentially dismissed the DUI charge against Lavender due to an "absence of proof" that a prosecutor could prove beyond a reasonable doubt he was guilty.

The initial special prosecutor in the case, former McCreary County Attorney Phil Cheney, apparently agreed to the order, but it was never signed by former Special Judge Roger Elliott. Despite being crafted in 2008, the agreed order did not appear in the court file until Feb. 16 this year.

Reynolds also asked the court to hold Simmons in contempt for not appearing; a motion that was also denied.

Just before proceedings ended, Reynolds notified the court that Lavender would likely have a new attorney representing him before the March 31 hearing.