Frazier v. Miller, 20-0745

• Decision Date: 20 May 2021
• Docket Number: No. 20-0745,20-0745
• Court: West Virginia Supreme Court
• Parties: Everett Frazier, Commissioner of the West Virginia Division of Motor Vehicles, Respondent Below, Petitioner v. David Miller Jr., Petitioner Below, Respondent

Everett Frazier, Commissionerof the West Virginia Division of Motor Vehicles, Respondent Below, Petitioner v. David Miller Jr., Petitioner Below, Respondent

No. 20-0745

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

May 20, 2021

(Kanawha County 19-AA-51)

MEMORANDUM DECISION

Petitioner Everett Frazier, Commissioner of the West Virginia Division of Motor Vehicles ("DMV"), by counsel Janet E. James, appeals the order of the Circuit Court of Kanawha County, entered August 21, 2020, which reversed the order of the Office of Administrative Hearings and reinstated the driving privileges of respondent David Miller Jr. Respondent appears by counsel David Pence.

The Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. This case satisfies the "limited circumstances" requirement of Rule 21(d) of the West Virginia Rules of Appellate Procedure and is appropriate for a memorandum decision rather than an opinion. For the reasons expressed below, the decision of the circuit court is reversed and this case is remanded to the circuit court for entry of an order consistent with this decision.

Respondent was arrested for driving under the influence of controlled substances ("DUI") pursuant to West Virginia Code § 17C-5-2. Petitioner was alleged to have committed that offense on May 15, 2012.¹ Following this arrest, the Division of Motor Vehicles ("DMV") sent respondent an order of revocation dated June 13, 2012, which revoked his driver's license for the offense of driving a motor vehicle while under the influence of alcohol, controlled substances, or drugs and refusing to submit to the secondary chemical test of the breath ("refusal"). Respondent requested a hearing on the revocation of his license.

The Office of Administrative Hearings ("OAH") conducted an evidentiary hearing on September 4, 2015.² Neither party subpoenaed the investigating officer. Over respondent's objection, petitioner admitted into evidence its agency documents, which included respondent's DUI information sheet, the Intoximeter Print Out Ticket, and the implied consent statement. After presenting these documents, petitioner rested its case without calling any witnesses.

Also at the hearing, respondent testified on his own behalf and he called two witnesses, his mother and father. Respondent testified that he did not consume alcohol prior to operating the motor vehicle on the day of his arrest and he denied being impaired at the time of the accident leading up to his arrest. Respondent also testified that he did not refuse a secondary chemical test. Respondent's mother testified that she arrived at the scene of the accident while respondent was in the back of an ambulance. Ms. Miller testified that it appeared that a beer can had exploded in the vehicle during the accident and respondent did not have the smell of alcohol on his breath when she arrived at the scene. Respondent's father testified that he had been at the family farm with respondent in Cross Lanes shortly before the accident, that he may have left beer in the vehicle, and that the vehicle had been driven by multiple members of the family. The OAH ultimately entered a final order on April 29, 2019, which modified the DMV Commissioner's Order of Revocation. Specifically, the OAH's final order affirmed the DMV's order of revocation for a violation of West Virginia Code §17C-5-2 and reversed the DMV's order of revocation for refusing to submit to a secondary chemical test based upon the testimony provided by respondent.³

On May 13, 2019, respondent appealed the matter to the Circuit Court of Kanawha County. The circuit court reversed the OAH's final order, finding that, after the creation of the OAH in 2010, "the 'agency' for administrative license revocation proceedings is the Office of Administrative Hearings, not [petitioner]." Related to this finding, the circuit court found that

"[t]he OAH conflates the definition of 'agency' and 'party' in the West Virginia Administrative Procedures Act (APA) to reach the unintended result that [petitioner] is both the 'agency' and the 'party' to the litigation. Having been deemed both the 'agency' and the 'party' by the OAH, [petitioner] was permitted to move [its] file into evidence despite respondent being denied his request to confront Officer Billy Helmbright."

As a result, the circuit court found that "the OAH improperly allowed [petitioner] to move all documents in [its] file into evidence absent compliance with the West Virginia Rules of Evidence or production of the author of those documents for cross-examination after [respondent] testified and produced witnesses." Although the circuit court acknowledged that the OAH has broad discretion to admit or deny evidence, it found that the OAH is nevertheless "bound by the West Virginia Rules of Evidence when making a ruling on the relevance and admissibility of evidence presented by either side at revocation hearings." The circuit court further ruled that "[respondent] suffered actual and substantial prejudice as a result of Officer Billy Helmbright's absence" where "[respondent] denied the allegations against him contained in Officer Billy Helmbright's reports and produced witnesses in support of his testimony."⁴ Thus, the circuit court reasoned that "[a] significant conflict of evidence exists in the case and [respondent] was denied his ability to confront his accusers to his detriment."

Petitioner filed this appeal challenging the circuit court's August 21, 2020, order. On appeal, petitioner raises three assignments of error. First, petitioner argues that the circuit court erred when it found that respondent was deprived of the right to due process of law to confront his accuser. Next, petitioner maintains that the circuit court erred when it found that the OAH improperly allowed the DMV agency file into evidence. Finally, petitioner claims that the circuit court erred when it ruled that the "agency" for administrative 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 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 deference unless the reviewing court believes the findings to be clearly wrong." Syl. Pt. 1, Muscatell v. Cline, 196 W. Va. 588, 474 S.E.2d 518 (1996).

"In cases where the circuit court has [reversed] 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).

Syl. Pts. 1 and 2, Fouch. Guided by this standard, we review petitioner's arguments.

Petitioner argues that the circuit court erred when it found that respondent was deprived of the right of due process of law to confront his accuser. As a related assignment of error, petitioner also claims that the circuit court erred when it found that the OAH improperly allowed the DMVfile into evidence without complying with the West Virginia Rules of Evidence or providing testimony from the responding officer. Petitioner maintains that the West Virginia Code specifically provides that the DMV records are admissible, and there is no requirement that the officer appear. Respondent concedes that the lower court erroneously concluded that the DMV file should not have been entered into evidence in light of Fouch, but notes that the circuit court correctly found that petitioner failed to satisfy its burden of proof and argues that the circuit court correctly weighed the totality of all evidence and appropriately reversed the revocation of respondent's driver's license.⁵ Our review of the record, however, suggests that the court's order contained erroneous findings as to these two assignments of error. Thus, consistent with our ruling in Fouch, we agree with petitioner as to these issues.

In Syllabus Point 3 of Fouch, we held:

"In an administrative hearing conducted by the Division of Motor Vehicles, a statement of an arresting officer, as described in W. Va. Code § 17C-5A-1(b) (2004) (Repl. Vol. 2004), that is in the possession of the Division and is offered into evidence on behalf of the Division, is admissible pursuant to W. Va. Code § 29A-5-2(b) (1964) (Repl. Vol. 2002)." Syl. Pt. 3, Crouch v. W. Va. Div. of Motor Vehicles, 219 W. Va. 70, 631 S.E.2d 628 (2006).

In Fouch, we found that the circuit court erred by ruling that the DMV's file, including the DUI information sheet, should not have been admitted into evidence and considered by the OAH. The Fouch Court also addressed earlier memorandum decisions from this Court wherein we discussed that the admission of the DMV file is mandatory before the OAH. Specifically, the Fouch decision referenced our 2018 decision where we noted

[w]e have previously stated that "[w]ithout a doubt, the Legislature enacted W. Va. Code § 29A-5-2(b) with the intent that it would operate to place into evidence in an administrative hearing ['a]ll evidence, including papers, records, agency staff memoranda and documents in the possession of the agency, of which it desires to avail itself.[']" Crouch, 219 W.Va. [at] 76, 631 S.E.2d [at] 634. As evidenced by the use of the word "shall," admission of the evidence identified in the statute is mandatory. Id. The secondary chemical test result was in the DMV's possession, and the DMV sought to avail itself of the result. Accordingly, the result of the secondary chemical test should have been admitted into evidence, subject to a

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