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Fatal DUI case hampered, Fayette prosecutor says

By Travis Crum, Staff writer

CHARLESTON, W.Va. — A Fayette County man indicted by a grand jury on charges of driving under the influence of drugs in a fatal crash in 2012 might not have his blood work presented against him during trial because of a court decision released months after the crash.

The prosecution is hindered by a state Supreme Court ruling released six months after the man was indicted, clarifying the legal way to subpoena medical records, said Fayette County Prosecuting Attorney Brian Parsons.

On Oct. 6, 2012, Brian Blaine Cox was driving his Chevrolet Tahoe SUV down U.S. Route 60 near Lookout when he collided head-on with another car. Helen Beaver, 90, a passenger in the second vehicle, was killed instantly. The car’s driver and his wife were seriously injured. Cox was taken to Plateau Medical Center in Oak Hill and later to CAMC General Hospital.

Fayette County Deputy C.M. Fitzwater later filed a subpoena for Cox’s medical records at CAMC General and on Oct. 27, 2012, the deputy received a complete medical history that showed Cox tested positive for Roxicodone and Xanax, which he is prescribed, and THC, the primary ingredient in marijuana.

Thirty-six days later, Fitzwater filed a criminal complaint against Cox in magistrate court, charging him with driving under the influence of benzodiazepines (anti-anxiety drugs) and/or marijuana causing death, and two counts of driving under the influence causing bodily injury. He also was charged with three misdemeanors crimes unrelated to the fatal crash. He was arrested Dec. 16, 2012.

On May 14, 2013, a Fayette County grand jury indicted Cox on criminal charges connected to the fatal crash.

Prior to Cox’s indictment, the Supreme Court issued a ruling in State of West Virginia v. Michael J. McGill, in which it was determined that a defendant’s medical records should be suppressed if no legal proceeding was pending against them when a subpoena for medical records was issued.

Citing the McGill ruling, Cox argued that his drug-screen results should be suppressed because he was facing no criminal charges at the time his medical records were subpoenaed.

Parsons said he argued that the McGill ruling came out months after the deputy subpoenaed his records. In subsequent court filings Parsons said “that if he was aware of the ruling, he would have advised Fitzwater to follow the exact procedures used for seizing Cox’s medical records.”

Fayette Circuit Court Judge John Hatcher outlined the case in a December 2013 court filing stating, “clearly had law enforcement been clairvoyant and known that McGill would be decided prior to the case … they no doubt would have chosen another lawful course of action to seize the Defendant’s medical records.”

“However, since law enforcement could not have anticipated the McGill case, no efforts were made by the Deputy Sheriff to seize the Defendant’s medical records by any alternative means … Despite the foregoing grave and serious concerns, the Court can only apply the law as it exists.”

Parsons said Friday that if he could do it over again, he would have obtained Cox’s medical records via search warrant or through the grand-jury process, as outlined by the McGill ruling.

Chrystal Long, Beaver’s granddaughter, said she’s upset that the man allegedly responsible for her grandmother’s death might never face justice. Her mother was seriously injured in the crash and her father was left permanently disabled, she said.

“Without the admission of medical records in court, this man will basically walk free,” Long said.

Cox remains on house arrest for allegedly violating the conditions of his bond.

Reach Travis Crum at travis.crum@wvgazette.com or 304-348-5163.


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