Kanawha County Prosecuting Attorney Bill Charnock said the presiding magistrate in the DUI case against Powerball winner Jack Whittaker set precedent when he upheld a defense motion to suppress field sobriety test evidence.

"I've never heard of another judicial officer suppressing a field sobriety test," Charnock said. "It's just absolutely bizarre."

On the other hand, Whittaker's attorney, Carter Zerbe, of Charleston said he knows of many instances similar to the Oct. 26 decision by Kanawha County Magistrate Tim Halloran, who once before dismissed the case because a state witness -- a sergeant with the West Virginia State Police -- didn't show up for a hearing.

A Kanawha Circuit Court judge later overturned Halloran's ruling, allowing prosecutors to re-file the misdemeanor.

"Field sobriety tests have been suppressed, not only in West Virginia, but in virtually every state in the union, including Alaska," Zerbe said.

Charnock moved to dismiss the case against Whittaker, 58, following Halloran's ruling after a mid-October evidentiary hearing.

At that hearing, the defense called at least two expert witnesses to testify on the unreliability of the tests. They also contended that the officer failed to lay a proper foundation for any such evidence to be submitted into evidence.

Halloran could not be reached at his office or home this morning.

Whittaker was arrested on Jan. 25, 2004, after a West Virginia State Police trooper alleged he found the Scott Depot multi-millionaire slumped over the steering wheel in his vehicle, which was pulled off on the shoulder along Interstate 64 near Nitro.

"First of all, there has been un-contradicted testimony that the seat was reclined and Whittaker was asleep," Zerbe said. "He was not slumped over the wheel. The only basis for administering the field sobriety tests was a slight smell of alcohol.

"The weather was horrendous that day. On I-64 in Kanawha County alone there were 16 accidents. There were a number of people who had pulled off the road."

According to the criminal complaint, Whittaker told the trooper, identified as B. Morris of the South Charleston detachment, he had an alcoholic beverage earlier on the day of his arrest, but several hours beforehand.

At the scene, Morris administered the horizontal gaze test to Whittaker, which he allegedly failed and was placed under arrest. Whittaker was later administered a "walk and turn" and breath test, on which he allegedly registered a 0.19 blood alcohol content level.

"Whittaker's speech was not slurred," Zerbe contended. "He talked in complete sentences and was honest and forthright with the officer."

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