Frazier v. Fouch, No. 19-0350

CourtSupreme Court of West Virginia
Writing for the CourtARMSTEAD, Chief Justice
Citation853 S.E.2d 587
Parties Everett FRAZIER, Commissioner of the West Virginia Division of Motor Vehicles, Petitioner v. John H. FOUCH, III, Respondent
Docket NumberNo. 19-0350
Decision Date06 November 2020

853 S.E.2d 587

Everett FRAZIER, Commissioner of the West Virginia Division of Motor Vehicles, Petitioner
v.
John H. FOUCH, III, Respondent

No. 19-0350

Supreme Court of Appeals of West Virginia.

Submitted: October 6, 2020
Filed: November 6, 2020


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

David Pence, Esq., Zerbe & Pence, PLLC, Charleston, West Virginia, Nigel E. Jeffries, Esq., Charleston, West Virginia, Counsel for Respondent.

ARMSTEAD, Chief Justice:

853 S.E.2d 588

The Office of Administrative Hearings ("OAH") entered an order affirming the revocation of Respondent John H. Fouch's ("Mr. Fouch") driver's license for driving under the influence of alcohol ("DUI").1 The arresting officer did not attend the OAH hearing but the OAH relied on the officer's DUI information sheet in its ruling affirming the revocation. The circuit court reversed the OAH's order, concluding that "the decision of the hearing examiner to admit [the arresting officer's] reports and to consider the notes made therein without proper authentication[,] which impermissibly shifted the burden of proof from the DMV to [Mr. Fouch,] was arbitrary, capricious, and an abuse of discretion."

On appeal, Petitioner Everett Frazier, Commissioner of the West Virginia Division of Motor Vehicles ("DMV"), asserts the circuit court erred by: 1) ruling that the DMV's records, including the DUI information sheet, should not have been admitted into evidence and considered by the OAH; and 2) ruling that the DMV has the burden of securing the arresting officer's attendance at the OAH hearing.

After review, we agree with both of the DMV's arguments. We therefore reverse the circuit court's March 6, 2019, order, and remand this matter to the circuit court for further proceedings consistent with our ruling herein.

I. FACTUAL AND PROCEDURAL BACKGROUND

Mr. Fouch was arrested and charged with DUI on April 15, 2013. According to the DUI information sheet completed by the arresting officer, Officer Charles Thompson, four eyewitnesses saw Mr. Fouch "almost hit ... [a] gas station" while driving in Wayne County, West Virginia. Further, the DUI information sheet provides that Mr. Fouch had the odor of an alcoholic beverage on his breath; staggered while walking; staggered while standing; had slurred speech; exhibited a lethargic

853 S.E.2d 589

attitude, and bloodshot eyes; admitted to drinking and taking sleeping medication prior to driving; and failed several field sobriety tests.2 Officer Thompson arrested Mr. Fouch for DUI, transported him to the police station, and administered a secondary chemical test which revealed that Mr. Fouch's blood alcohol content was .120%.

The DMV entered an order revoking Mr. Fouch's driver's license on April 25, 2013. Because Mr. Fouch was employed as a commercial driver, the DMV also entered an order of disqualification of his commercial driver's license. Mr. Fouch timely requested a hearing before the OAH to contest the revocation and disqualification orders.

The OAH hearing was scheduled for August 13, 2013. At the request of both the DMV and Mr. Fouch, the OAH issued a subpoena for Officer Thompson to appear at this hearing. This hearing was continued sua sponte by the OAH hearing examiner due to a family emergency.

The hearing was rescheduled for March 5, 2014. At the request of the DMV, the OAH issued a subpoena to Officer Thompson to appear at this hearing. Both parties moved for a continuance because Officer Thompson failed to appear and because counsel for Mr. Fouch was ill.

The hearing was rescheduled for October 9, 2014. At the request of Mr. Fouch, the OAH issued Officer Thompson a subpoena to appear at this hearing. He did not appear. The DMV moved to continue the hearing because counsel "states that she was just made aware of possible video evidence and would like time to obtain it." Mr. Fouch did not object to the continuance.

The hearing was rescheduled for July 28, 2015. Once again, the OAH issued Officer Thompson a subpoena to appear at the hearing.3 He failed to appear. The DMV moved to continue the hearing due to Officer Thompson's failure to appear. Mr. Fouch objected "because the [DMV] has continued this matter twice previously." The OAH hearing examiner granted the continuance.

The hearing was rescheduled for February 17, 2016. The OAH issued Officer Thompson a subpoena to appear at this hearing. Officer Thompson failed to appear.4 The DMV moved to continue the hearing due to Officer Thompson's failure to appear. The OAH's order granting the continuance provides that there was no objection to the DMV's motion to continue.

The hearing was rescheduled for June 15, 2016. Officer Thompson was issued a subpoena but failed to appear at the hearing. Counsel for the DMV stated:

I have mailed the subpoena and emailed the subpoena to his [Officer Thompson's] personal email. So I do not know why he's not making [an] appearance here today. With that, and that being the fourth time [he's failed] to appear, I would ask that you just accept the DMV submission ... under [ W. Va. Code §] 29A-5-2(b) as the record of what the Commissioner's file entails.

Mr. Fouch objected to the DMV's records being admitted and moved to dismiss the revocation. The following exchange took place at the hearing:

Counsel for Mr. Fouch: I want to object to that being received into the record. As both of you all know, I conduct extensive cross examinations of these officers with regard to their ability to conduct the tests and recognize certain clues that are contained in the report, spend quite a bit of time doing that, and I'd object to that being admitted. And I'd further move that due to the fact that we've been here – this is the fourth time without the officer present – that it be dismissed. My client (unintelligible) has paid me quite a bit of money to come down here and pays me every
853 S.E.2d 590
time that I'm down here, because I have to prepare, and, he certainly shouldn't be penalized for the officer's inaction. I move to dismiss.

Hearing Examiner: I can't – I don't have the authority to dismiss it. With regard to admitting the DUI Information Sheet, we do take these into evidence under [ W. Va. Code §] 29A-5-2(b) but that doesn't mean I'm going to give it, you know, full weight or any weight for that matter. If you do want the officer here, we can continue it and, you know, try to get him –

Counsel: No, I certainly don't want my client to have to incur further expenses.

The hearing examiner admitted the DMV's records over Mr. Fouch's objection. The DMV's records consisted of 1) Officer Thompson's DUI information sheet, 2) the "Intox EC/IR-II Subject Test" sheet which showed the results of Mr. Fouch's secondary chemical breath test, and 3) the West Virginia Implied Consent Statement.

The hearing proceeded, and Mr. Fouch was the only witness who testified. He stated that he did not consume alcohol on the night he was arrested. He testified that he rinsed his mouth with Listerine and had used an Albuterol breathing treatment prior to driving his intoxicated nephew to the gas station. Mr. Fouch stated that his nephew was acting erratically while in the car, stating that he grabbed the steering wheel, and "was sticking his head out [of] the sunroof and was yelling at people[.]" According to Mr. Fouch, his nephew continued to cause a scene when they arrived at the gas station. Officer Thompson arrived at the gas station, and began questioning Mr. Fouch. In sum, Mr. Fouch's testimony was that he did not consume alcohol prior to driving, and that his use of Listerine and an Albuterol treatment skewed the results of the secondary chemical test.

Following Mr. Fouch's testimony, his counsel vouched the record that he would have cross-examined Officer Thompson on a number of issues. Counsel for the DMV did not make any closing argument, she simply stated, "I'll just let the record stand where it's at."

The OAH entered its final order upholding the DMV's orders of revocation and disqualification on June 26, 2017. The OAH explained its ruling as follows:

The Petitioner stated that he did not drink alcohol and believes the Listerine or Albuterol caused the high blood alcohol content reading. However, when residual mouth alcohol is present, the Intox EC/IR-II shows such a result. In this case, the Intox EC/IR-II printout does not show a "residual mouth alcohol" reading. Additionally, the secondary chemical test was administered to the Petitioner more than one hour after the time of initial contact, which means the Listerine or Albuterol would have to have lingered for more than one hour in the Petitioner's mouth, which is highly unlikely. The Petitioner's testimony simply does not add up. Therefore, the Order of Revocation should be affirmed.

Mr. Fouch filed an appeal of the OAH's ruling in the Circuit Court of Kanawha County. He alleged that he was denied his right to confront his accuser, and that he suffered actual prejudice because the DMV did not secure the presence of Officer Thompson at the administrative hearing.

The...

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12 practice notes
  • Frazier v. Talbert, No. 20-0134
    • United States
    • Supreme Court of West Virginia
    • 15 Junio 2021
    ...prior to July 1, 2021.3 See Miller , No. 20-0745, 2021 WL 2023586, at *3-4 (reiterating holding in Frazier v. Fouch , 244 W. Va. 347, 853 S.E.2d 587 (2020) that DMV records alone may be utilized to establish DUI without live testimony of arresting officer).4 See Goodson , No. 20-0236, 2021 ......
  • Frazier v. Slye, 20-0746
    • United States
    • Supreme Court of West Virginia
    • 24 Febrero 2022
    ...Syl. Pt. 3, Crouch v. W.Va. Div. of Motor Vehicles, 219 W.Va. 70, 631 S.E.2d 628 (2006); see also Frazier v. Fouch, 244 W.Va. 347,, 853 S.E.2d 587, 593 (2020) (reaffirming validity of Crouch syllabus point 3 for OAH administrative hearings). Although the contents of a West Virginia DUI Info......
  • Frazier v. Slye, 20-0746
    • United States
    • Supreme Court of West Virginia
    • 24 Febrero 2022
    ...Pt. 3, Crouch v. W. Va. Div. of Motor Vehicles , 219 W.Va. 70, 631 S.E.2d 628 (2006) ; see also Frazier v. Fouch , 244 W. Va. 347, 353, 853 S.E.2d 587, 593 (2020) (reaffirming validity of Crouch syllabus point 3 for OAH administrative hearings). Although the contents of a West Virginia DUI ......
  • Frazier v. Miller, No. 20-0745
    • United States
    • Supreme Court of West Virginia
    • 20 Mayo 2021
    ...license revocation proceedings is the OAH and not the DMV. We address these assignments below. In Frazier v. Fouch, ___ W. Va. ___, 853 S.E.2d 587 (2020), we reiterated the standard of review that governs this matter."On appeal of an administrative order from a circuit court, this Court is ......
  • Request a trial to view additional results
12 cases
  • Frazier v. Talbert, No. 20-0134
    • United States
    • Supreme Court of West Virginia
    • 15 Junio 2021
    ...prior to July 1, 2021.3 See Miller , No. 20-0745, 2021 WL 2023586, at *3-4 (reiterating holding in Frazier v. Fouch , 244 W. Va. 347, 853 S.E.2d 587 (2020) that DMV records alone may be utilized to establish DUI without live testimony of arresting officer).4 See Goodson , No. 20-0236, 2021 ......
  • Frazier v. Slye, 20-0746
    • United States
    • Supreme Court of West Virginia
    • 24 Febrero 2022
    ...Syl. Pt. 3, Crouch v. W.Va. Div. of Motor Vehicles, 219 W.Va. 70, 631 S.E.2d 628 (2006); see also Frazier v. Fouch, 244 W.Va. 347,, 853 S.E.2d 587, 593 (2020) (reaffirming validity of Crouch syllabus point 3 for OAH administrative hearings). Although the contents of a West Virginia DUI Info......
  • Frazier v. Slye, 20-0746
    • United States
    • Supreme Court of West Virginia
    • 24 Febrero 2022
    ...Pt. 3, Crouch v. W. Va. Div. of Motor Vehicles , 219 W.Va. 70, 631 S.E.2d 628 (2006) ; see also Frazier v. Fouch , 244 W. Va. 347, 353, 853 S.E.2d 587, 593 (2020) (reaffirming validity of Crouch syllabus point 3 for OAH administrative hearings). Although the contents of a West Virginia DUI ......
  • Frazier v. Miller, No. 20-0745
    • United States
    • Supreme Court of West Virginia
    • 20 Mayo 2021
    ...license revocation proceedings is the OAH and not the DMV. We address these assignments below. In Frazier v. Fouch, ___ W. Va. ___, 853 S.E.2d 587 (2020), we reiterated the standard of review that governs this matter."On appeal of an administrative order from a circuit court, this Court is ......
  • Request a trial to view additional results

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