Frazier v. Simpkins

• Decision Date: 20 September 2022
• Docket Number: 20-0313
• Parties: Everett J. Frazier, Commissioner, West Virginia Division of Motor Vehicles, Respondent Below, Petitioner v. Joshua Simpkins, Petitioner Below, Respondent
• Court: West Virginia Supreme Court

Everett J. Frazier, Commissioner, West Virginia Division of Motor Vehicles, Respondent Below, Petitioner
v.
Joshua Simpkins, Petitioner Below, Respondent

No. 20-0313

Supreme Court of Appeals of West Virginia

September 20, 2022

Kanawha County 19-AA-87

MEMORANDUM DECISION

Petitioner Everett Frazier, Commissioner of the West Virginia Division of Motor Vehicles ("the commissioner"), appeals the order of the Circuit Court of Kanawha County, entered on March 2, 2020, affirming the administrative reinstatement of Respondent Joshua Simpkins's motor vehicle operator's license.^[1]

This 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. Upon consideration of the standard of review^[2], the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

An officer of the Welch Police Department arrested Mr. Simpkins in late October of 2013 on the suspicion that he was driving under the influence of controlled substances, after Mr. Simpkins failed three field sobriety tests during a routine traffic stop. A preliminary breathalyzer

1

test indicated Mr. Simpkins had not consumed alcohol. However, the officer later testified that he detected the odor of marijuana when he approached the automobile during the traffic stop, and that Mr. Simpkins admitted to having "earlier" smoked marijuana. The officer requested a search by a K-9 unit, but there is no evidence in the appendix record indicating a seizure of illegal substances.

The officer took Mr. Simpkins to a local hospital to provide a blood sample (which Mr. Simpkins asserts that he requested) for testing. The officer transmitted the sample to the West Virginia State Police Laboratory. Sometime thereafter, the McDowell County Prosecuting Attorney's Office informed laboratory staff that the State did not require testing of the sample, and the sample was destroyed.

The commissioner revoked Mr. Simpkins's motor vehicle operator's license, and Mr. Simpkins requested an administrative hearing before the Office of Administrative Hearings ("OAH"). A hearing was conducted in 2016. Of crucial note, when questioned at the hearing, the investigating officer was unable to identify the "earlier" time that Mr. Simpkins was supposed to have smoked marijuana. Mr. Simpkins testified that he told the officer that he had smoked marijuana in the distant past, but not that evening, and that he requested the administration of a blood test to prove that he had not recently used marijuana. The OAH reversed the commissioner's revocation, reasoning that an individual officer's failure to test blood or to make blood evidence available to the respondent for further testing denied respondent's statutory due process rights under West Virginia Code § 17C-5-9. The OAH entered its order more than three years after it conducted the hearing. The commissioner appealed the OAH's final order to the Circuit Court of Kanawha County which agreed with the OAH.

There is evidence that Mr. Simpkins requested the administration of a blood test when he was arrested under suspicion of driving under the influence of controlled substances. The commissioner seeks reversal, arguing that the OAH and the circuit court overturned his revocation order solely based on the absence of the results of the blood test that Mr. Simpkins requested. We recently tailored the considerations we deem important in cases such as this:

In a proceeding involving the revocation of a driver's license for driving under the influence of alcohol controlled substances, or drugs where a driver demands a blood test pursuant to West Virginia Code § 17C-5-9 [2013], but the test is never given, a chemical analysis of the blood that is withdrawn is never completed, or the blood test results are lost, the trier of fact must consider (1) the degree of negligence or bad faith involved in the violation of the statute; (2) the importance of the blood test evidence considering the probative value and reliability of secondary or substitute evidence that remains available and (3) the sufficiency of the other evidence produced at the proceeding to sustain the revocation. The trier of fact must consider these factors in determining what consequences should flow from the absence of the blood test evidence under the particular facts of the case

Syl. Pt. 6, Frazier v. Talbert, 245 W.Va. 293, 858 S.E.2d 918 (2021).

Upon application of the three considerations described in Talbert, we find no error in the circuit court's order. Mr. Simpkins challenges a nearly decade-old revocation without the benefit

2

of blood test results which the OAH found he requested. It is undisputed that the prosecuting attorney's office-a State actor-authorized the destruction of the blood sample. Mr. Simpkins testified that his admission to having smoked marijuana was a general admission, not one related to his activities earlier in the evening of his arrest, and the officer did not refute this information when recalled to testify. Although the officer testified that he detected the odor of marijuana in Mr. Simpkins's automobile, no marijuana was recovered. Under the unique circumstances before us, where the OAH findings indicate a teetering balance of evidence, the Talbert concerns suggest that Mr. Simpkins required the results of the blood test that he requested and was prejudiced by its absence.

For the foregoing reasons, we affirm.

Affirmed.

CONCURRED IN BY: Chief John A. Hutchison Justice Elizabeth D. Walker Justice William R. Wooton Justice C. Haley Bunn

DISSENTING: Justice Tim Armstead

WOOTON, J., concurring:

I concur in the majority's conclusion that the Office of Administrative Hearings ("OAH") and circuit court's reinstatement of petitioner's license should be affirmed. However, I write separately to once again express my staunch disagreement with the Court's continued insistence on fact-finding in the context of administrative DUI revocations. In this case, the OAH, as affirmed by the circuit court, reinstated petitioner's license because blood test results were not made available to him, notwithstanding a factual dispute about whether petitioner or the arresting officer requested the blood testing. As a result, the OAH did not reach the issue of whether petitioner was DUI. Subsequent to the OAH's decision and the circuit court's affirmance, a majority of this Court created a set of factors to be considered by the fact-finder where driver-requested blood test results are not made available, to determine what the consequence of that omission should be. See Syl. Pt. 6, Frazier v. Talbert, 245 W.Va. 293, 858 S.E.2d 918 (2021).

The memorandum decision affirms petitioner's license reinstatement by incorrectly concluding that the OAH determined that petitioner requested the blood testing and performing

3

the fact-intensive Talbert analysis itself, finding prejudice to petitioner from the absence of the results. However, the OAH's order plainly states that "The Investigating Officer requested the Petitioner submit to a blood draw, [and] the Petitioner agreed" and "Petitioner did not initiate the blood...