Carroll v. Stump

• Decision Date: 22 July 2005
• Docket Number: No. 32501.,32501.
• Citation: 619 S.E.2d 261
• Court: West Virginia Supreme Court
• Parties: Gary E. CARROLL, Petitioner Below, Appellee, v. F. Douglas STUMP, Commissioner of the West Virginia Division of Motor Vehicles, Respondent Below, Appellant

619 S.E.2d 261

Gary E. CARROLL, Petitioner Below, Appellee, v. F. Douglas STUMP, Commissioner of the West Virginia Division of Motor Vehicles, Respondent Below, Appellant

No. 32501.

Supreme Court of Appeals of West Virginia.

Submitted May 24, 2005.

Decided July 7, 2005.

Dissenting Opinion by Chief Justice Albright July 8, 2005.

Concurring Opinion by Justice Davis July 22, 2005.

Darrell V. McGraw, Jr., Attorney General, Janet E. James, Assistant Attorney General, Charleston, for Appellant.

R. Lee Booten, II, Huntington, for Appellee.

BENJAMIN, Justice.

This case is before the Court upon the appeal of F. Douglas Stump, Commissioner of the Division of Motor Vehicles,¹ ("Commissioner") from the January 14, 2004, Opinion Order of the Circuit Court of Wayne County, West Virginia. The order set aside the Commissioner's administrative revocation of the driver's license of Appellee Gary E. Carroll [Carroll] for a period of six months for driving under the influence of alcohol ("DUI") in violation of W. Va.Code § 17C-5-2 (2000)². For the reasons set forth below, we reverse the Circuit Court of Wayne County's January 14, 2004 order and remand this matter to the Circuit Court of Wayne County for immediate entry of an order reinstating the Commissioner's August 25, 2003 order which revoked Carroll's driver's license.

I. FACTS AND PROCEDURAL BACKGROUND

On November 5, 2001, Officer David S. Hudson of the Huntington Police Department was dispatched to the scene of a two-vehicle accident. While interviewing Carroll, the driver of one of the vehicles involved, Officer Hudson detected the odor of alcohol on his breath and that he had impaired balance, slurred speech, and blood shot eyes. Carroll admitted that he had consumed about three beers prior to the accident. Carroll failed several field sobriety tests administered by Officer Hudson, including the horizontal gaze nystagmus,³ the walk and turn test,⁴ recitation of the ABC's and a preliminary breath test. Thereupon, Officer Hudson placed Carroll under arrest for driving under the influence of alcohol and transported him to the headquarters of the Huntington Police Department. At police headquarters, Officer Hudson read the standard Implied Consent Statement⁵ to Carroll, obtained his consent, and administered to him the Intoxilyzer 5000 test. Carroll registered a 0.148 on the Intoxilyzer 5000, which measures the blood alcohol content of the breath.

Upon completion of the Intoxilyzer 5000 and paperwork, Officer Hudson transported Carroll to the Wayne County Magistrate Court.⁶ It appears from the record that Officer Hudson, as the arresting officer, failed to sign a criminal complaint against Carroll charging him with a violation of W. Va.Code § 17C-5-2 (2001).⁷ Based upon this failure, the magistrate found no probable cause, and, accordingly, did not issue a warrant against Carroll.

Although Officer Hudson failed to sign a criminal complaint against Carroll before the magistrate, he did prepare and file with the Commissioner a written statement relating to Carroll's arrest, referred to as a Statement of Arresting Officer, as required by W. Va.Code § 17C-5A-1(b)(1994).⁸ After reviewing the Statement of the Arresting Officer, the Commissioner issued an initial order, dated November 30, 2001, revoking Appellee's privilege to drive in West Virginia for six months. Following an administrative hearing, the Commissioner issued a final order upholding the initial revocation effective August 25, 2003.

Appellee appealed the revocation order to the Circuit Court of Wayne County. On January 14, 2004, the circuit court entered the order at issue herein. The circuit court's order indicates its apparent view that due process requires the arresting officer to swear or affirm, in a criminal complaint before a magistrate, the essential elements of the DUI offense charged and a finding of probable cause by the magistrate as a jurisdictional prerequisite to an administrative license revocation proceeding.⁹ Because the officer had failed to sign a sign a criminal complaint filed before a magistrate, the circuit court found the Commissioner lacked jurisdiction to administratively revoke Appellee's license. Although the circuit court overruled and set aside the Commissioner's revocation of Appellee's driver's license, it found Appellee's November 5, 2001 arrest was lawful and that the arresting officer had probable cause to arrest Appellee for operation of a motor vehicle while under the influence of alcohol.¹⁰ Having considered the Appellant's petition for appeal, the record submitted to this Court, the briefs of the Appellant and Appellee, and the oral argument of counsel, we reverse the circuit court's January 14, 2004 order for the reasons stated below.

II. STANDARD OF REVIEW

In the instant matter, the circuit court reversed the Commissioner's revocation order, finding the Commissioner did not have jurisdiction to enter the same. "In cases where the circuit court has amended the result before the administrative agency, this Court reviews the final order of the circuit court and the ultimate disposition by it of an administrative law case under an abuse of discretion standard and reviews questions of law de novo." Syl. Pt. 2, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996). A question of jurisdiction, such as that presented in the instant matter, is a question of law which we review de novo. See, State ex rel. Orlofske v. City of Wheeling, 212 W.Va. 538, 542, 575 S.E.2d 148, 152 (2002), quoting, Snider v. Snider, 209 W.Va. 771, 777, 551 S.E.2d 693, 699 (2001). Similarly, "where 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). Since there is only a legal question presented, and not a factual one, the sole standard of review to be followed by this Court is de novo.

III. DISCUSSION

The issue on appeal is whether the initiation before a magistrate of a criminal prosecution for DUI is a jurisdictional prerequisite to the Commissioner's commencement and completion of the administrative process for the suspension or revocation of a driver's license for DUI pursuant to his authority under W. Va Code § 17C-5A-1(1994) and § 17C-5A-2 (2000). The Commissioner argues there is no such jurisdictional prerequisite. Carroll, conversely, maintains a criminal proceeding for driving under the influence must first be initiated by the filing of a sworn complaint, a magistrate's finding of probable cause and issuance of an arrest warrant¹¹ before the Commissioner has jurisdiction to initiate an administrative proceeding for the revocation of a driver's license, as provided in W. Va Code § 17C-5A-1 (1994) and § 17C-5A-2 (2000). According to Carroll, the Commissioner may not proceed with an administrative revocation proceeding on the statement of an arresting officer alone.

At the outset, we reject the circuit court's due process analysis. In Syllabus Point 3 of Jordan v. Roberts, 161 W.Va. 750, 246 S.E.2d 259 (1978), we held that "[t]he administrative proceedings for suspension of a driver's license under W. Va.Code, 17C-5A-1, et seq., do not violate this State's Due Process Clause." Therefore, if a jurisdictional prerequisite exists, as found by the circuit court, the same must be statutory.

Pursuant to W. Va.Code § 17C-5A-1(b)(1994), when a person is arrested for DUI, the arresting officer:

shall report to the commissioner of the division of motor vehicles by written statement within forty-eight hours the name and address of the person so arrested. The report shall include the specific offense with which the person is charged, and, if applicable, a copy of the results of any secondary tests of blood, breathe or urine. The signing of the statement required to be signed by this subsection shall constitute an oath or affirmation by the person signing the statement that the statements contained therein are true and that any copy filed is a true copy. The statement shall contain upon its face a warning to the officer signing that to willfully sign a statement containing false information concerning any matter or thing, material or not material, is false swearing and is a misdemeanor.

See also, In re Burks, 206 W.Va. 429, 431, 525 S.E.2d 310, 312 (1999).¹² If the Commissioner determines:

upon examination of the written statement of the officer and [the results of any secondary tests of blood, breath or urine] that a person was arrested for [DUI], and that the results of any secondary test or tests indicate that at the time the test or tests were administered the person had, in his or her blood, an alcohol concentration of ten hundredths of one percent or more, by weight, or at the time the person was arrested he or she was under the influence of alcohol, controlled substances or drugs, the commissioner shall make and enter an order revoking the person's license to operate a motor vehicle in this state.

W. Va.Code § 17C-5A-1(c) (1994)¹³ (emphasis added). The revocation¹⁴ does not become effective until ten days after the person arrested receives a copy of the Commissioner's order. Id.

Pursuant to W. Va.Code § 17C-5A-2(a) (2000), the Commissioner must stay any revocation imposed under W. Va.Code § 17C-5A-1 (1994), until such time as the person whose license has been revoked or suspended can be heard where the Commission receives a written request for hearing within thirty calendar days of the person's receipt of the copy of the order of revocation. The hearing is required to be held within one hundred eighty days of the Commissioner's receipt of a request for hearing, unless postponed or continued for good cause shown. W. Va.Code § 17C-5A-2(b) (2000). Pursuant to W. Va.Code § 17C-5A-2(d) (2000):

The principal question at the hearing shall be whether the person did drive a motor vehicle while under the...