For Judge’s Son, A Hearing Apart

By Daniel Gilbert
Reporter / Bristol Herald Courier
Published: October 31, 2008

ABINGDON, Va. – For the son of a local judge charged with drunken driving, a visiting judge last week left the bench during the regular docket to hear the case in a vacant, overflow courtroom in Washington County General District Court.

The only people witnessing the Oct. 21 hearing for Matthew Randall Lowe were the presiding judge, a special prosecutor from Buena Vista, Va., Lowe’s defense attorney, the complaining state trooper, a member of the clerk’s staff and a bailiff, said the prosecutor, Christopher Russell.

When both parties emerged, they had reached a deal to strike the enhancing factor from Lowe’s high blood-alcohol content in exchange for his guilty plea – meaning he will serve two days in jail as opposed to the mandatory 10 days for a blood-alcohol content of 0.20 grams per 210 liters of breath or higher.

Lowe’s blood-alcohol content was tested at 0.24 – three times the legal limit – more than 100 minutes after the traffic stop.

Lowe, who turned 23 two days after the hearing, is the son of Circuit Court Judge C. Randall Lowe. Matthew Randall Lowe also was fined $250, given a restricted license, placed on probation for 12 months and sent to an area substance abuse program.

In interviews, Judge Chadwick S. Dotson of Wise County, defense attorney David Scyphers and Russell all defended the plea bargain as reasonable given the circumstances. But no one has offered a reason for moving the hearing to an empty courtroom – effectively out of the public view. Even Russell was unsure of whether the hearing was public or private.

The DUI charge came from an incident in late September when a state trooper was dispatched at 4:17 a.m. to a single-car accident on Wyndale Road, about midway between Abingdon and Bristol.

When Officer Ronald Hughes arrived about half an hour later, he found Lowe and his pickup flipped onto its side off the roadway. Lowe told Hughes he had been turning around when he pulled into a private driveway, according to the criminal complaint.

His eyes were bloodshot and his speech was slurred, noted Hughes, who asked Lowe “numerous times” about his name and address.

“He had to think about his date of birth,” Hughes wrote. “He added [an] extra LLL when I asked him to spell his middle name.”

A preliminary breath test came back “very positive,” and Hughes arrested Lowe on accusations of DUI and then advised him of his “implied consent” – a statutory provision triggered when someone is arrested for drunken driving on a highway.

Lowe’s blood sample, taken an hour and 45 minutes after the accident was reported, registered at 0.24.

But in the court papers, a sentence with Lowe’s elevated blood-alcohol content is lined out. “Amended w/o objection,” wrote Dotson, who initialed and dated the amendment.

A hearing apart

Dotson came to Abingdon on Oct. 21 because of a perceived conflict for local judges in Lowe’s case, Dotson said. Edna Griffin, the Washington County general district court clerk, confirmed that and said Dotson and Judge Sage Johnson switched jurisdictions for the day.

A former Wise County commonwealth’s attorney and conservative blogger, Dotson assumed the general district court bench in February 2007. In a telephone interview, he declined to comment on any case before him.

“I have never shown any preferential treatment ever, for anybody, in my courtroom,” Dotson said.

Asked why he heard the case in a different room, he said, “There was a request to hear it in another courtroom,” though he did not specify who made the request.

“It was an open hearing,” he said. “There were people in there.”

Scyphers, when contacted, urged a reporter not to publicize the case.

“I hope that you deem this something you don’t need to write about,” he said Wednesday by phone. “This young man seems to be singled out because his dad is a judge.”

Asked about moving the hearing to another room, Scyphers said, “We just used another courtroom. There was nothing unusual about that. It wasn’t anything unusual.”

But it struck Russell, the prosecutor, as unusual.

“I asked about that, too,” said Russell, who could not be reached until Thursday. As he recalled the proceedings in an interview, Russell lofted another question: “Was this not a public trial?”

Russell is commonwealth’s attorney for Buena Vista and, like Dotson, was brought in specifically for the Lowe case because of potential conflicts arising from prosecuting a local judge’s son.

“I was in the main courtroom where there were members of the public waiting,“ Russell said. “I don’t recall that there was a motion made in open court,“ he said, adding he believes the request to move the proceeding across the hall came from Scyphers or the bailiff. Efforts to reach the bailiff Thursday were unsuccessful.

Russell initially said the court went into recess – something Dotson denied – but was unsure if the judge declared a formal recess.

“The judge stood up and said, ‘We’re going to take a short break and hear another case,’ “ Russell recalled. “We walked out of the main courtroom across the hall” into the overflow room which, he said “was empty at the time we walked into it.“

He believes the lights were on, he said.

Asked why he did not object, Russell said, “I didn’t really have an opportunity to object. We had already agreed, the two lawyers, to making the joint recommendation. I didn’t see a reason to bring it up at this point.“

The hearing was over in five minutes, he said.
It is not clear whether Dotson heard other cases in the overflow courtroom that day. In the interview, he said he had done arraignments in the overflow room but did not say if he meant on Oct. 21 or a different date. When contacted Thursday, Dotson indicated through a secretary that he was busy and had no comment.

Scyphers also did not return a follow-up phone call Thursday.

A Virginia police spokesman, speaking for Hughes, deferred to Russell for an account of the courtroom proceedings.

Efforts to reach Matthew Lowe were unsuccessful. A woman answering the phone at the Lowe’s home Wednesday said he was not there and immediately hung up. Lowe did not return a phone message left Thursday.

Judge Lowe declined to comment on his son’s case, citing judicial guidelines that prohibit a judge from speaking out of court about a case that falls within his district.

The bargain

A blood analysis might seem like irrefutable proof of drunkenness, but a smart attorney in the right circumstances can cast doubt on a test’s accuracy and admissibility, experts say.

“I’ve had cases where a [blood-alcohol content] was reduced,“ said Jimmy Hess, an Abingdon attorney who frequently represents defendants charged with DUI. The blood-alcohol content that should apply at trial is the alcohol content at the moment of the incident, and not necessarily at the time of the chemical analysis, Hess said.

Depending on when a defendant was drinking, the blood-alcohol content might rise or fall significantly from the time of the incident to the exam, the attorney said.

Commonwealth attorneys generally won’t reduce the blood-alcohol content “unless you have some information that the BAC was lower at the point [a driver] is pulled over,“ said Hess, who on Oct. 21 represented a client with a 0.21 blood-alcohol content before Dotson.

Like Lowe, it was Billy Joe Townsend’s first DUI charge. But Townsend was sentenced to 10 days in jail.

A potentially key difference was that Townsend was stopped for speeding; Lowe had crashed his vehicle on private property.

The implied consent law that allows a police officer to take a blood or breath sample applies only when a driver uses a highway.

“If they can’t prove you are actually on the highway, is [implied consent] in effect?“ Hess asked. “Which means the entire test could be thrown out.“

Russell was thinking along these lines when he agreed to strike Lowe’s blood-alcohol content, noting that “no one observed him driving,“ and the potential problem “with the location of the accident, being on private property.“

“If we went forward in a contested, not-guilty plea on that, there would be some risk of the [blood-alcohol content] certificate not coming in anyway, of losing the case altogether,“ said Russell, who in May was the special prosecutor on a DUI case involving a district court judge in Wythe County.

In that case, Judge Michael Keith Blankenship refused a breath and field sobriety test – a refusal that meant an automatic one–year suspension of his driver’s license. Citing a lack of evidence, Russell dropped the DUI charge to reckless driving in the plea deal.

Because of the high blood-alcohol content in Lowe’s case, Russell said, he was determined that the defendant serve some jail time and the plea was the only sure option.

Scyphers called the deal a “fair resolution.“

“We had to be cognizant he wasn’t treated any worse just because his daddy was a judge,“ the defense attorney said.

Scyphers declined to go into detail about his defense, saying there were “just some issues about the blood test,“ and questioning its admissibility.

“He certainly didn’t get any preferential treatment,“ he said. “This young man said, ‘I want to take responsibility for my actions.’ “

Lowe is set to begin his sentence Nov. 7.