Frazier v. Slye

• Decision Date: 24 February 2022
• Docket Number: 20-0746
• Parties: Everett FRAZIER, Commissioner, West Virginia Division of Motor Vehicles, Petitioner Below, Petitioner v. Joseph D. SLYE, Respondent Below, Respondent
• Court: West Virginia Supreme Court

874 S.E.2d 10

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

v.Joseph D. SLYE, Respondent Below, Respondent

No. 20-0746

Supreme Court of Appeals of West Virginia.

Submitted: January 5, 2022

Filed: February 24, 2022

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

B. Craig Manford, Esq., Martinsburg, West Virginia, Counsel for Respondent

HUTCHISON, Chief Justice:¹

Petitioner Everett Frazier, Commissioner of the West Virginia Division of Motor Vehicles ("DMV"), appeals the August 25, 2020, order of the Circuit Court of Kanawha County denying the DMV's appeal of a September 10, 2019, final order of the Office of Administrative Hearings ("OAH"). The Commissioner contends that both the OAH and the circuit court erroneously concluded that Respondent Joseph D. Slye could not have his driver's license revoked for his refusal to submit to a designated secondary chemical test because the arresting officer failed to provide him with a written copy of the implied consent statement. This form statement advises a driver of the consequences of refusing to submit to the designated secondary chemical test to determine blood alcohol content, and that the refusal is final after fifteen minutes. The Commissioner also asserts that the respondent did not properly preserve his right to an OAH hearing for the implied consent revocation, therefore this matter did not qualify as a contested case over which the OAH had jurisdiction.

Having reviewed the parties’ arguments, the record on appeal, and the controlling law, we conclude that the OAH and circuit court were correct in their application of the law. The plain and unambiguous language of West Virginia Code § 17C-5-7(a) (2013)² requires that a driver be given a written copy of the implied consent statement as a condition of revoking his or her driver's license for the refusal to submit to the secondary chemical test. The respondent was not provided with the required written notice. We also find no merit to the Commissioner's claim about the lack of a contested case. Accordingly, we affirm.³

I. Facts and Procedural Background

At approximately 5:40 a.m. on May 23, 2018, Deputy B. Frick of the Berkeley County Sheriff's Department found the respondent sleeping in the driver's seat of his truck. The truck was parked in the middle of a road and was blocking the roadway. The keys were in the ignition and the engine was running. Deputy Frick opened the driver's door and woke the respondent. The deputy observed that the respondent was confused, drowsy, slurred his speech, and had a strong odor of alcohol on his breath. The respondent admitted that he had been heavily drinking Fireball, an alcoholic beverage, the night before. The respondent refused to perform field sobriety tests and refused to take a preliminary breath test.

Deputy Frick arrested the respondent for driving under the influence of alcohol, controlled substances, and/or drugs ("DUI") and transported him to the sheriff's office. During the subsequent OAH hearing, the deputy testified about his attempt to administer the designated secondary chemical test to the respondent:

I read him the Implied Consent. You know, I explained the – I just read the Implied Consent to him and then I observed him for 20 minutes. And then he refused to sign the Implied Consent. I then waited, you know, the additional 15 minutes, and then asked Mr. Slye if he would perform ... a Secondary Chemical Test of his breath in which he refused again.

On cross-examination regarding the implied consent statement, the driver's lawyer asked Deputy Frick, "did you actually give him a copy?" The deputy answered, "I did not, sir."

The deputy completed and submitted to the DMV a West Virginia DUI Information Sheet describing the basis for the DUI arrest and indicating that the respondent had refused to submit to the designated secondary chemical test. On June 19, 2018, the DMV issued two separate orders revoking the respondent's driver's license: one order revoked his license for DUI in violation of West Virginia Code § 17C-5-2 (2016), while the other order revoked his license for refusing to submit to the secondary chemical test in violation of West Virginia Code § 17C-5-7.

The respondent requested an evidentiary hearing before the OAH, which was held on May 15, 2019. In the final order entered September 10, 2019, the OAH hearing examiner found that there was a preponderance of the evidence supporting the revocation for DUI. However, the hearing examiner found that because the deputy did not give a copy of the written implied consent statement to the respondent, the evidence did not show that the respondent was properly advised of the consequences for refusing the secondary chemical test. Accordingly, the OAH affirmed the revocation for DUI, but reversed the separate revocation order for refusing to submit to the secondary chemical test.⁴ The DMV appealed to circuit court, which affirmed by order of August 25, 2020. Both the OAH and the circuit court concluded that state statutory law expressly requires a law enforcement officer who is seeking to administer a secondary chemical test to give a written copy of the implied consent statement to the accused driver. In this appeal, the DMV challenges the portion of the circuit court's order regarding the implied consent revocation.

II. Standard of Review

This Court reviews a circuit court's order in an administrative appeal as follows:

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). Furthermore,

[u]pon judicial review of a contested case under the West Virginia Administrative Procedure 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 Dept. v. State ex rel. State of W.Va. Human Rights Comm'n , 172 W. Va. 627, 309 S.E.2d 342 (1983). With these standards in mind, we consider the parties’ arguments.

III. Discussion

The DMV raises two issues on appeal. The DMV contends that the OAH and the circuit court misinterpreted the requirements of the relevant statute regarding the need to provide a written copy of the implied consent statement to the respondent. Furthermore, the DMV asserts that the implied consent violation was not properly before the OAH. As explained below, we find no merit to either argument.

A. Requirement to Provide a Written Copy of the Implied Consent Statement

The DMV argues that the OAH and the circuit court misinterpreted the implied consent statute when concluding that a law enforcement officer who is seeking to administer a secondary chemical test must provide the driver with an actual, written copy of the implied consent statement. The DMV claims that a driver is not entitled to a mere "souvenir copy" of the implied consent statement "to take home." The DMV argues that the deputy's action of asking the respondent to sign the implied consent statement, which the respondent refused to do, was sufficient to have allowed the respondent the opportunity to read the form. Furthermore, the DMV contends that the deputy indicated compliance with the implied consent statute by checking a box on the DUI Information Sheet; the DMV argues that this is proof despite the officer's testimony. The respondent argues that the relevant statute required that he be given a written notice of the consequences of his refusal, that the deputy admitted on cross-examination that he did not provide that written notice, and therefore the respondent's license could not be revoked on this basis. After reading the plain and unambiguous statutory language and the deputy's testimony at the OAH hearing, we agree with the respondent on this issue.

By operation of state law, anyone who drives a motor vehicle in West Virginia has impliedly given consent to submit to a secondary chemical test for purposes of ascertaining his or her blood alcohol content:

Any person who drives a motor vehicle in this state is considered to have given his or her consent by the operation of the motor vehicle to ... a secondary chemical test of either his or her blood or breath to determine the alcohol concentration in his or her blood, or the concentration in the person's body of a controlled substance, drug, or any combination thereof.

W. Va. Code § 17C-5-4(a) (2013 & 2020). The failure to submit to the designated secondary chemical test, by itself, will result in the revocation of a driver's license pursuant to West Virginia Code § 17C-5-7 if the statutory requirements are met:

"When the requirements of W. Va. Code, 17C-5-7 [1983] have otherwise been met, and a driver refuses to or fails otherwise to respond either affirmatively or negatively to an officer's request that he submit to a blood alcohol content test, the driver's refusal or failure to respond is a

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