Coll v. Cline, 24973.

• Citation: 505 S.E.2d 662,202 W.Va. 599
• Decision Date: 24 June 1998
• Docket Number: No. 24973.,24973.
• Parties: John Christopher COLL, Petitioner Below, Appellee, v. Jane L. CLINE, Commissioner of the West Virginia Division of Motor Vehicles, Respondent Below, Appellant.
• Court: Supreme Court of West Virginia

505 S.E.2d 662

202 W.Va. 599

John Christopher COLL, Petitioner Below, Appellee, v. Jane L. CLINE, Commissioner of the West Virginia Division of Motor Vehicles, Respondent Below, Appellant.

No. 24973.

Supreme Court of Appeals of West Virginia.

Submitted June 2, 1998.

Decided June 24, 1998.

Darrell V. McGraw, Jr., Attorney General, Jacquelyn I. Custer, Senior Assistant Attorney General, Charleston, for Appellant.

James A. Matish, Clarksburg, for Appellee.

DAVIS, Chief Justice:

In this case, the Commissioner of the West Virginia Division of Motor Vehicles appeals an order of the Circuit Court of Harrison County that reversed a final order of the Commissioner revoking the driver's license of John C. Coll. The Commissioner argues that the circuit court erred in concluding that the results of a secondary chemical test to determine the blood alcohol concentration of an individual who has been arrested for driving under the influence of alcohol are a jurisdictional prerequisite to the Commissioner's authority to revoke that person's driver's license. We agree with the Commissioner. Therefore, we reverse the July 18, 1997, order of the Circuit Court of Harrison County, and reinstate the final order of the Commissioner of the West Virginia Division of Motor Vehicles, entered January 15, 1997.

I. FACTUAL AND PROCEDURAL HISTORY

On November 20, 1995, Stephen Davies-Williams, an officer of the Bridgeport, West Virginia, Police Department, observed a speeding vehicle. Officer Davies-Williams engaged his emergency lights and siren in an attempt to stop the vehicle. Instead of stopping, the driver of the vehicle continued traveling for approximately one-and-one-half miles at speeds sometimes approaching seventy miles per hour. Ultimately, the officer stopped the car and identified its driver as John Christopher Coll, the appellee herein and petitioner below. Officer Davies-Williams observed a strong odor of alcohol emanating from Coll. The officer further observed that Coll's speech was slurred, his eyes were red and he was unsteady on his feet. Coll was given three structured field sobriety tests by Officer Davies-Williams: the one-leg stand test, the walk-and-turn test, and the horizontal gaze nystagmus test. Coll was instructed on how to perform each test, and he indicated that he understood the instructions. However, Coll proceeded to fail all three tests. Consequently, he was placed under arrest for driving under the influence of alcohol [hereinafter DUI] and was transported to the Bridgeport Police Station.¹

When Coll arrived at the Police Station, he was read the relevant portion of an Implied Consent Statement regarding a secondary chemical test to determine his blood alcohol content.² In this case, the secondary chemical test was the Intoxilyzer 5000 test, which utilizes a person's breath to measure his/her blood alcohol content. Coll signed the Implied Consent form, thereby agreeing to submit to the Intoxilyzer test. In addition, Coll was read his Miranda rights and agreed to answer questions without the presence of an attorney. He was asked whether he had been operating a motor vehicle and whether he had been drinking. He answered both questions affirmatively. Thereafter, Officer R.F. Fernandez of the Brigdgeport Police Department administered the Intoxilyzer 5000 test. The test results revealed that Coll had a blood alcohol content of .257.³ Subsequent to the above-described events, Officer Davies-Williams submitted a "STATEMENT OF ARRESTING OFFICER" to the West Virginia Division of Motor Vehicles [hereinafter sometimes "DMV" or "the Division"], pursuant to W.Va.Code § 17C-5A-1(b) (1994) (Repl.Vol.1996).⁴ However, Officer Davies-Williams failed to attach to the report a copy of the Intoxilyzer 5000 test results, which is also required by W.Va.Code § 17C-5A-1(b).⁵ The statement reported that Officer Davies-Williams had arrested Coll on November 20, 1995, for DUI. Based upon this statement, Jane L. Cline, Commissioner of the Division of Motor Vehicles, [hereinafter "Commissioner Cline" or "the Commissioner"] issued a preliminary order on December 8, 1995, revoking Coll's license to drive in West Virginia.

Coll then requested an administrative hearing to challenge the revocation and the results of the Intoxilyzer 5000 test administered by the Bridgeport Police Department, as permitted by W.Va.Code § 17C-5A-2 (1994) (Cum.Supp.1995).⁶ The order of revocation was then stayed pending resolution of the administrative hearing. W.Va.Code § 17C-5A-2(a) (1994) (Cum.Supp.1995).⁷ The hearing was held on February 26, 1996, before Robert L. DeLong, Hearing Examiner. At the outset of the administrative hearing, counsel for Coll objected to the jurisdiction of the Commissioner to enter a revocation order based upon an arresting officer's statement that was not accompanied by a copy of the secondary chemical test results. The objection was overruled by the hearing examiner. The hearing proceeded. During the hearing, the examiner heard testimony relating the facts described above, including the results of the Intoxilyzer test. After considering the evidence presented and the arguments of the parties, the hearing examiner submitted to Commissioner Cline detailed findings of fact and conclusions of law, and recommended that "the Commissioner conclude as a matter of law that John C. Coll committed an offense described in W.Va.Code 17C-5-2 Cum.Supp. (1995), in that John C. Coll drove a motor vehicle in this State, while under the influence of alcohol." Based upon Examiner DeLong's findings and conclusions, by final order entered on January 15, 1997, Commissioner Cline revoked Coll's privilege to drive a motor vehicle in this state "for a period of ten years and thereafter until he successfully completes the Safety and Treatment Program; [and] pays [certain designated] costs."

Coll then appealed Commissioner Cline's final order to the Circuit Court of Harrison County. Initially, the circuit court stayed the execution of Commissioner Cline's final order revoking Coll's driving privileges. Thereafter, by order entered July 18, 1997, the circuit court reversed Commissioner Cline's order. The circuit court based its conclusion upon its finding that a copy of the printed results of the Intoxilyzer test was not attached to the "STATEMENT OF ARRESTING OFFICER" submitted to the Division as required by W.Va.Code § 17C-5A-1(b).

The court observed that Commissioner Cline's preliminary revocation order, which was issued December 8, 1995, was based solely upon the "STATEMENT OF ARRESTING OFFICER." The court found that W.Va.Code § 17C-5A-1(c)⁸ "clearly puts a mandatory duty on the Commissioner to examine not only the statement [of the arresting officer] but also the test results of the secondary chemical test in order to establish that the necessary facts are present in order for her to enter an Order of Revocation." One of the "necessary facts" referred to is the requirement that the Commissioner determine 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." W.Va.Code § 17C-5A-1(c). Without the secondary chemical test results, the circuit court reasoned, Commissioner Cline could not ascertain whether Coll's blood alcohol content had exceeded the lawful limit. Because Commissioner Cline was without a copy of the secondary chemical test at the time she issued her preliminary revocation order, thereby preventing her from fulfilling the requirements of W.Va.Code § 17C-5A-1(c), the circuit court concluded that "[t]he ruling of the Commissioner was based upon an unlawful procedure and outside her jurisdiction." It is from this order that the Commissioner now appeals.⁹

II. STANDARD OF REVIEW

We have previously set forth the standard to be applied by a circuit court when it reviews an order issued by an administrative agency:

"`"Upon judicial review of a contested case under the West Virginia Administrative Procedure[s] Act, Chapter 29A, Article 5, Section 4(g), the circuit court may affirm the order or decision of the agency or remand the case for further proceedings. The circuit court shall reverse, vacate or modify the order or decision of the agency if the substantial rights of the petitioner or petitioners have been prejudiced because the administrative findings, inferences, conclusions, decisions or order are `(1) In violation of constitutional or statutory provisions; or (2) In excess of the statutory authority or jurisdiction of the agency; or (3) Made upon unlawful procedures; or (4) Affected by other error of law; or (5) Clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or (6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.'" Syl. Pt. 2, Shepherdstown Volunteer Fire Department v. State ex rel. State of West Virginia Human Rights Commission, 172 W.Va. 627, 309 S.E.2d 342 (1983).' Syllabus Point 1, St. Mary's Hospital v. State Health Planning and Development Agency, 178 W.Va. 792, 364 S.E.2d 805 (1987)." Syl. pt. 1, HCCRA v. Boone Memorial Hospital, 196 W.Va. 326, 472 S.E.2d 411 (1996).

Syl. pt. 3, West Virginia Div. of Envtl. Protection v. Kingwood Coal Co., 200 W.Va. 734, 490 S.E.2d 823 (1997) (alteration in original). See also W.Va.Code § 29A-5-4g (1964) (Repl.Vol.1993).

We are now asked to determine whether the circuit court properly employed these standards. However, the specific question before us, whether the results of a secondary chemical test to determine the blood alcohol concentration of an individual who has been arrested for driving under the influence of alcohol are a jurisdictional prerequisite to the Commissioner's authority to revoke a driver's license, is purely legal. Consequently, we apply a de novo standard of review. Syl. pt. 1,...