Frazier v. Derechin, No. 20-0192

CourtSupreme Court of West Virginia
Writing for the CourtWALKER, Justice
Citation866 S.E.2d 101
Parties Everett FRAZIER, Commissioner, West Virginia Division of Motor Vehicles, Respondent Below, Petitioner v. Joshua DERECHIN, Petitioner Below, Respondent
Decision Date18 November 2021
Docket NumberNo. 20-0192

866 S.E.2d 101

Everett FRAZIER, Commissioner, West Virginia Division of Motor Vehicles, Respondent Below, Petitioner
Joshua DERECHIN, Petitioner Below, Respondent

No. 20-0192

Supreme Court of Appeals of West Virginia.

Submitted: October 6, 2021
Filed: November 18, 2021

Patrick Morrisey, Esq., Attorney General, Elaine L. Skorich, Esq., Assistant Attorney General, Charleston, West Virginia, Counsel for Petitioner

Mark McMillian, Esq., Mark McMillian – Attorney at Law, L.C., Charleston, West Virginia, Counsel for Respondent

WALKER, Justice:

866 S.E.2d 104

After Joshua Derechin's driver's license was revoked by the Division of Motor Vehicles (DMV)1 in March 2013, he requested a hearing before the Office of Administrative Hearings (OAH). OAH held a hearing two years later – in August 2015 – yet the OAH did not issue its order affirming the license revocation until July 2019. On appeal, the circuit court reversed and rescinded Mr. Derechin's license revocation, dismissing the case with prejudice, concluding that Mr. Derechin had been actually and substantially prejudiced by OAH's near four-year delay in issuing a final order. We affirm the reversal and dismissal of the action because the circuit court did not abuse its discretion in concluding that Mr. Derechin had suffered a change in circumstances and had been actually and substantially prejudiced by the long post-hearing delay. But, the circuit court also awarded Mr. Derechin costs and attorney fees for the "overall delay" of the proceedings, even though the pre-hearing delay was not raised with specificity by Mr. Derechin below, the facts and circumstances do not support an award of costs and fees based on the pre-hearing delay, and the post-hearing delay is not attributable to DMV's conduct, but to the OAH. So, we find error in and reverse the assessment of costs and attorney fees against DMV by the circuit court.


Mr. Derechin had recently moved to West Virginia when former Charleston Police Officer B.A. Lightner pulled him over in downtown Charleston after observing that Mr. Derechin was "driving erratically" and had improperly gone straight onto Court Street from the right lane close to midnight on February 1, 2013. Mr. Derechin informed Officer Lightner that he had consumed alcoholic beverages "not tonight, earlier." Officer Lightner observed that Mr. Derechin was walking normally to the roadside, though noted he was unsteady in exiting the vehicle. Officer Lightner smelled alcohol and noted that Mr. Derechin was nervous and had glassy eyes. Upon performance of field sobriety tests, Mr. Derechin exhibited impairment in the Horizontal Gaze Nystagmus (HGN) Test, the walk-and-turn test, and the one-leg-stand test. Mr. Derechin's secondary chemical test demonstrated a 0.071% blood alcohol concentration.

On February 22, 2013, DMV issued an order of revocation for Mr. Derechin's driver's license effective March 29, 2013. Because it was his first offense, Mr. Derechin was ordered to complete 120 days of the West Virginia Alcohol Test and Lock Program (Interlock) and serve a fifteen-day revocation or, alternatively, serve a ninety-day revocation. In either case, Mr. Derechin would have been required to participate in the West Virginia Safety and Treatment Program and pay the costs of reinstatement. Rather than pursue either of those options, on March 19, 2013, Mr. Derechin requested an administrative hearing before the OAH.

OAH set Mr. Derechin's hearing for July 9, 2013, but it was rescheduled to September 12, 2013 after Mr. Derechin sought a continuance due to his counsel's long-standing, pre-paid travel plans outside of the United States. The day of the September 12, 2013 hearing, DMV requested and was granted an emergency continuance after its primary witness, Officer Lightner, had childcare issues and could not appear. OAH did not issue an order rescheduling Mr. Derechin's hearing until August 12, 2014 — nearly a year later — and noticed the rescheduled hearing to occur on February 12, 2015. The Legislature, citing the backlog of cases like Mr. Derechin's, amended West Virginia Code § 17C-5A-3a to allow drivers who waived their right to a hearing before the OAH to serve the entirety of their revocation period on the Interlock program. Mr. Derechin did not elect to participate.

866 S.E.2d 105

Next, the February 2015 hearing was moved to March 12, 2015 due to OAH's scheduling errors. The March 2015 hearing was then continued to August 28, 2015 after Mr. Derechin asked for a continuance the day before the hearing. Finally, on August 28, 2015, OAH conducted the hearing, and DMV presented only Officer Lightner's report, rather than Officer Lightner himself, to support its revocation of Mr. Derechin's license. OAH did not issue an order following the hearing. DMV filed a motion for final order three years later in September 2018 but did not receive a response. Nearly another year passed before OAH entered its order on July 22, 2019, affirming the revocation of Mr. Derechin's license.

On July 30, 2019, Mr. Derechin filed an appeal in the Circuit Court of Kanawha County arguing both that the OAH erred in affirming the revocation and that he was actually and substantially prejudiced by the OAH's delay in holding a hearing and in issuing its decision.2 DMV filed a cross-petition for judicial review, citing that it was also actually and substantially prejudiced by OAH's post-hearing delay.

The circuit court conducted an evidentiary hearing. At the hearing, Mr. Derechin argued that OAH had excluded or otherwise discounted important evidence. That evidence included a negative inference for spoliation of a videotape recording documenting the stop, as well as newspaper articles related to Officer Lightner's discharge from the Charleston Police Department for misconduct. Upon the circuit court's review, it found that the OAH had improperly found Officer Lightner's report credible given the newspaper articles evidencing his "demonstrable unreliability," and that Mr. Derechin was entitled to an inference in his favor with respect to the unavailable videotape. The circuit court therefore concluded that DMV had not met its burden to prove that Mr. Derechin was driving impaired despite his BAC being under the legal limit.

The circuit court further found that Mr. Derechin was actually and substantially prejudiced by the post-hearing delay because, among other things, he had divorced during the pendency of the proceedings, and his wife was no longer available to drive him to work in or out of state as his job required. Based on where Mr. Derechin lived, the circuit court found that Uber was an unreliable option since, when attempted, it often cancelled the ride noting that there were no cars available. As to bus transportation, the circuit court found it was similarly impractical because he would have to walk nearly a mile off a mountain to the bus stop to catch a bus that ran infrequent routes with no realistic connection to his workplace. In addition to his testimony regarding his divorce and the difficult logistics of getting to his office and more remote work locations, Mr. Derechin also testified that he had been offered a job with a company in Mississippi, and declined it given that his license was in jeopardy.

To contravene the circuit court's finding that Mr. Derechin had been actually and substantially prejudiced by the delay, DMV contended that it, too, was actually and substantially prejudiced by OAH's post-hearing delay and that dismissal would punish DMV for OAH's delay. Together with the fact that DMV had not filed any mandamus action to force OAH to issue its decision earlier, the circuit court found that DMV had not advanced that Mr. Derechin's case was particularly complex or that there was any exceptional reason for the forty-seven-month delay. The circuit court reversed and rescinded Mr. Derechin's license revocation, dismissing the action with prejudice and awarded him attorney fees and costs. DMV appeals that order.


In reviewing DMV's appeal, we apply the following standard:

[o]n appeal of an administrative order from a circuit court, this Court is bound by the statutory standards contained in W.Va.Code § 29A–5–4(a) and reviews questions of law presented de novo ; findings of fact by the administrative officer are accorded
866 S.E.2d 106
deference unless the reviewing court believes the findings to be clearly wrong.[3 ]

And where, as here, the circuit court reversed the findings of OAH, our review is likewise deferential to the circuit court in its ultimate disposition: "[i]n 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. "4


DMV raises three issues with the circuit court's order: (1) Mr. Derechin was not actually and substantially prejudiced by OAH's post-hearing delay, and even if he were, DMV's prejudice should have been balanced against Mr. Derechin's; (2) the circuit court substituted its...

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