Butcher v. Miller

• Decision Date: 07 June 2002
• Docket Number: No. 30251.,30251.
• Court: West Virginia Supreme Court
• Parties: Michael BUTCHER, Petitioner Below, Appellant, v. Joe E. MILLER, Commissioner, West Virginia Division of Motor Vehicles, Respondent Below, Appellee.

569 S.E.2d 89

212 W.Va. 13

Michael BUTCHER, Petitioner Below, Appellant, v. Joe E. MILLER, Commissioner, West Virginia Division of Motor Vehicles, Respondent Below, Appellee.

No. 30251.

Supreme Court of Appeals of West Virginia.

Submitted May 21, 2002.

Decided June 7, 2002.

Concurring Opinion of Justice Albright June 11, 2002.

Thomas T. Madden, III, Glen Dale, West Virginia, for appellant.

Darrell V. McGraw, Jr., Attorney General, Janet E. James, Assistant Attorney General, Charleston, West Virginia, for respondent.

PER CURIAM.

This appeal was filed by Michael Butcher, appellant/petitioner below (hereinafter referred to as "Mr. Butcher"), from a ruling by the Circuit Court of Wetzel County affirming an administrative decision to suspend Mr. Butcher's driver's license. Mr. Butcher's driver's license was suspended by Joe E. Miller, Commissioner of the West Virginia Division of Motor Vehicles, appellee/respondent below (hereinafter "the Commissioner"), as a result of Mr. Butcher's refusal to take a designated chemical breath test to determine whether he was driving while impaired. Mr. Butcher contends that he was not properly informed that his driving license would be suspended should he refuse to take the designated chemical breath test. After reviewing the briefs and record in this case and listening to oral arguments, we reverse the circuit court's order.

I. FACTUAL AND PROCEDURAL HISTORY

During the late evening hours of December 14, 1996, officer S.G. Kastigar, a deputy sheriff of Wetzel County, stopped a vehicle driven by Mr. Butcher. Deputy Kastigar stopped the car because Mr. Butcher was driving, at night, without headlights. During the stop, deputy Kastigar noticed signs that indicated Mr. Butcher had been drinking. Deputy Kastigar administered three field sobriety tests to Mr. Butcher. He failed all three tests. When deputy Kastigar asked Mr. Butcher to take a chemical breath test, he refused. Deputy Kastigar then read to Mr. Butcher a standard implied consent statement, thereby informing him that should he refuse to take the chemical breath test his driver's license "may" be suspended for a period of at least a year and up to life. Nevertheless, Mr. Butcher again refused to take the chemical breath test. Deputy Kastigar subsequently arrested Mr. Butcher for second offense driving under the influence.

After the arrest, deputy Kastigar forwarded to the Commissioner a report indicating Mr. Butcher had been arrested for driving under the influence. The report also stated that he refused to take a chemical breath test. On December 27, 1996, the Commissioner issued an order notifying Mr. Butcher that his driver's license was revoked because of his refusal to take the chemical breath test. The order informed Mr. Butcher that he was entitled to have an administrative hearing to contest the revocation. Mr. Butcher contested the revocation. A hearing was held on April 8, 1997. Following the hearing, the Commissioner found that the evidence established that Mr. Butcher had refused the chemical breath test. Consequently, the Commissioner issued a final order on December 2, 1997, revoking Mr. Butcher's driver's license for 10 years.

On December 30, 1997, Mr. Butcher appealed the Commissioner's final order to the circuit court. On June 30, 2000, the circuit court filed an order affirming the Commissioner's final order. Mr. Butcher filed a motion for reconsideration on July 6, 2000.¹ The circuit court filed an order on June 6, 2001, denying the motion for reconsideration. Thereafter, this appeal was filed.

II. STANDARD OF REVIEW

The issue presented in this case requires an analysis of our DUI statutes. We have held that "[w]here the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). Moreover, "[e]videntiary findings made at an administrative hearing should not be reversed unless they are clearly wrong." Syl. pt. 1, Francis O. Day Co., Inc. v. Director, Div. of Envtl. Prot., 191 W.Va. 134, 443 S.E.2d 602 (1994).

III. DISCUSSION

Mr. Butcher contends that deputy Kastigar informed him that his driver's license "may" be suspended for refusing to take the chemical breath test. Mr. Butcher asserts that this warning was erroneous because under W.Va.Code § 17C-5-7(a) (2000), he should have been informed that the revocation of his driver's license for refusing to take the chemical breath test was mandatory. This Court has held that "[w]hen interpreting a legislatively created law, we typically afford the statute a construction that is consistent with the Legislature's intent." Coordinating Council for Indep. Living, Inc. v. Palmer, 209 W.Va. 274, 281, 546 S.E.2d 454, 461 (2001). See also Syl. pt. 1, Smith v. State Workmen's Comp. Comm'r, 159 W.Va. 108, 219 S.E.2d 361 (1975) ("The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature."). We have also indicated that "[a] statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect." Syl. pt. 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951). However, "[a] statute that is ambiguous must be construed before it can be applied." Syl. pt. 1, Farley v. Buckalew, 186 W.Va. 693, 414 S.E.2d 454 (1992).

The pertinent language in W.Va.Code § 17C-5-7(a) provides that an officer attempting to perform a chemical breath test must inform the driver "that his refusal to submit to the secondary test finally designated will result in the revocation of his license to operate a motor vehicle in this state for a period of at least one year and up to life."² (Emphasis added.) Mr. Butcher argues that the word "will," as used in W.Va.Code § 17C-5-7(a), implies a definite suspension. Therefore, he was incorrectly advised by deputy Kastigar's use of the word "may," as "may" implies a discretionary suspension. Several cases from other jurisdictions have been cited by Mr. Butcher as support for his position. For example, in State v. Huber, 540 N.E.2d 140 (Ind.App.Ct.1989), the defendant refused to take a chemical breath test after the arresting officer warned him that his driver's license "may" be suspended. The defendant's driver's license was suspended; however, a trial court ordered the license restored because the arresting officer failed to use the word "will" when advising the defendant, as required by statute, regarding the suspension of his license. The Indiana Court of Appeals upheld the trial court's decision. In doing so, the court stated: "The phrase `may be suspended' connotes discretionary action. Thus the advisement failed to convey the strong likelihood that suspension of driving privileges would follow Huber's refusal to submit to a breathalyser test." Huber, 540 N.E.2d at 142. See also Graves v. Commonwealth, 112 Pa.Cmwlth. 390, 535 A.2d 707 (Pa.Cmwlth.1988)

(reversing suspension because officer used the word "could" instead of "will"); Mairs v. Department of Licensing, 70 Wash.App. 541, 854 P.2d 665 (Wash. Ct.App.1993) (reversing suspension because officer used the word "probably" instead of "will"); Welch v. State, 13 Wash.App. 591, 536 P.2d 172 (Wash.Ct.App.1975) (reversing suspension because officer used the word "could" instead of "will").

Conversely, the Commissioner argues that deputy Kastigar's warning "substantially" complied with the requirements of the statute and therefore the suspension of Mr. Butcher's driving license should not be disturbed.³ A few cases were cited by the Commissioner to support its "substantial" compliance argument. For example, in Commonwealth Dep't of Pub. Safety v. Tuemler, 526 S.W.2d 305 (1975), a driver had his license suspended for refusing to take a breathalyser test.⁴ The driver argued that the arresting officer informed him that "chances" were he would lose his license for refusing to take the test. The driver contended that this warning was misleading, because suspension was automatic. The appellate court ruled that the warning "substantially apprised [the driver] of the consequences of refusing to take the test." Tuemler, 526 S.W.2d at 306. The appellate court also noted that "revocation is not necessarily `automatic,' but is subject to an administrative hearing[.]" Id. The appellate court reinstated the suspension.

In another case cited by the Commissioner, In re Olien, 378 N.W.2d 262 (S.D.1985), a driver had his license revoked after refusing a blood test. The driver contended on appeal that the officer misled him by stating that refusal to take the blood test "can" result in revocation of his license. The applicable statute required warning that a license revocation "shall" be imposed. The Supreme Court of South Dakota acknowledged that the statute was not literally complied with by the arresting officer. However, the court affirmed the revocation after finding "the officer's advice substantially complied with [the statute.]" Olien, 378 N.W.2d at 264.

We are not persuaded by the "substantial" compliance authorities cited by the Commissioner. The pertinent language of W.Va. Code § 17C-5-7(a) is clear and unambiguous. "[A] statute which is clear and unambiguous should be applied by the courts and not construed or interpreted." Carper v. Kanawha Banking & Trust Co., 157 W.Va. 477, 517, 207 S.E.2d 897, 921 (1974) (citation omitted). Under the statute, an officer making a DUI arrest must inform the arrestee that a refusal to submit to a chemical breath test "will" result in a license suspension.

Here, Mr. Butcher was never informed that his license "will" be suspended for refusing to take the chemical breath test. Instead, Mr. Butcher was erroneously told that his license "may" be suspended. Our cases have held that "[t]he word `may' generally... connotes discretion."...