In re Burks

• Decision Date: 03 December 1999
• Docket Number: No. 25897.,25897.
• Court: West Virginia Supreme Court
• Parties: In re Petition of Dennis H. BURKS for Judicial Review of Administrative Decision Made by Joe E. Miller, Commissioner, Department of Transportation, Division of Motor Vehicles, Suspending the License of Dennis H. Burks to Operate a Motor Vehicle.

525 S.E.2d 310

206 W.Va. 429

In re Petition of Dennis H. BURKS for Judicial Review of Administrative Decision Made by Joe E. Miller, Commissioner, Department of Transportation, Division of Motor Vehicles, Suspending the License of Dennis H. Burks to Operate a Motor Vehicle.

No. 25897.

Supreme Court of Appeals of West Virginia.

Submitted October 19, 1999.

Decided December 3, 1999.

Darrell V. McGraw, Jr., Esq., Attorney General, Jacquelyn I. Custer, Esq., Senior Assistant Attorney General, Charleston, West Virginia, Attorneys for Joe E. Miller, Commissioner.

Randy D. Hoover, Esq., Stanley I. Selden, Beckley, West Virginia, Attorney for Petitioner.

STARCHER, Chief Justice:

I.

Facts & Background

On December 26, 1997, the appellee, Dennis H. Burks ("Burks"), was arrested in Beckley for driving under the influence of alcohol ("DUI") by Deputy L.D. Lilly of the Raleigh County Sheriff's Department. After failing field sobriety tests administered by Deputy Lilly, Burks was taken to a police station and given a chemical breath test, which registered an alcoholic concentration in the appellee's blood of 14 hundredths of one percent (.14), by weight. The legal limit is 10 hundredths (.10). From the police station, Burks called his attorney. Following that conversation, Burks requested a blood test. He was taken to Raleigh General Hospital where a blood test was performed.

Pursuant to W.Va.Code, 17C-5A-1(b) [1994], a law enforcement officer arresting an individual for DUI ... shall report to the commissioner of the division of motor vehicles by written statement within forty-eight hours the name and address of the person so arrested. The report shall include the specific offense with which the person is charged, and, if applicable, a copy of the results of any secondary tests of blood, breath or urine.

The "Statement of Arresting Officer" is used by the Division of Motor Vehicles ("DMV") in the driver's license revocation process. In this case, Deputy Lilly prepared a Statement of Arresting Officer. The Statement, however, was not mailed to the DMV until December 29, 1997, more than 48 hours after Burks' arrest. The statement was stamped as received at the DMV on December 31, 1997.

On January 7, 1998, Burks' driver's license was suspended by the DMV. On January 14, 1998, Burks' attorney sent a letter to Deputy Lilly, requesting certain information concerning the blood test, including the results, and the type and manner of blood test that was conducted.

On January 26, 1998, Deputy Lilly responded to Burks' attorney by letter, stating that Deputy Lilly did not have the requested information, but the information could be obtained by Burks from Raleigh General Hospital.

On April 14, 1998, an administrative hearing on the DMV license suspension was held before the DMV. Deputy Lilly testified that he did not have the results of the blood test. The DMV Commissioner indicated that, because the blood test was done at Burks' request, Deputy Lilly had no duty to obtain the results.

On June 15, 1998, the DMV entered an administrative "final order," effective the same date, suspending Burks' driver's license for 6 months. The DMV order states: Burks "has not shown that he was prejudiced by the officer's failure to file the [arresting officer's] statement within forty-eight hours."

Burks appealed the DMV decision to circuit court. On September 4, 1998, the circuit court entered an order reversing the DMV's revocation of Burks' license. In so ruling, the circuit court set forth the following rationale:

1. The reasoning behind this relates to the failure of the arresting officer, pursuant to WV Code, 17C-5A-1, to submit within forty-eight (48) hours, an affidavit as required by the statute. [I]t is clear that the officer did not mail his affidavit within forty-eight (48) hours of the arrest as he is required to do by statute, and therefore, has failed to comply with the mandatory requirements of [the] statute.

2. The failure of the officer to supply the results of the blood test is a substantial denial of due process and a fair and full hearing on the issues[.]

II.

Standard of Review

The circuit court's challenged rulings were matters of law that we review de novo.

III.

Discussion

A.

48 Hours

The first issue we consider is whether Deputy Lilly's failure to mail the Statement of Arresting Officer to the DMV within 48 hours of Burks' arrest is grounds to overturn the DMV license suspension.

The DMV takes the position that Deputy Lilly's failure to mail the Statement of Arresting Officer to the DMV within 48 hours did not bar the DMV from revoking Burks' license. The DMV cites us to Coll v. Cline, 202 W.Va. 599, 606, n. 12, 505 S.E.2d 662, 669, n. 12 (1998), where we observed that time requirements for filing an arresting officer's statement applied only to the officer, and had no application to the Commissioner.

Burks takes the position that the requirement that the arresting officer mail the report of a DUI arrest to the DMV Commissioner within 48 hours is a condition precedent to the Commissioner having subject matter jurisdiction of a license revocation case. Because the Statement of Arresting Officer was mailed out of time, Burks says that the Commissioner never acquired jurisdiction over the case. Consequently, Burks argues, the proceedings before the Commissioner are void, and the circuit court properly dismissed the revocation of Burks' driver's license.

We agree with the DMV that the 48-hour reporting duty in W.Va.Code, 17C-5A-1(b) [1994] is directed to and imposed on the arresting officer, and not on the DMV. We further recognized in Coll v. Cline, supra, and in Dolin v. Roberts, 173 W.Va. 443, 317 S.E.2d 802 (1984) that technical and nonprejudicial noncompliance with reporting time requirements that are imposed on a law enforcement officer was not a jurisdictional impediment to the DMV taking action regarding a license suspension.¹

Consequently, we hold that a law enforcement officer's failure to strictly comply with the DUI arrest reporting time requirements of W.Va.Code, 17C-5A-1(b) [1994] is not a jurisdictional impediment to the commissioner of the Division of Motor Vehicles taking administrative action based on the arrest report, unless there is actual prejudice to the driver as a result of such failure.

Applying this standard to the instant case, the brief delay in submitting the arresting officer's statement was de minimis, and there was no prejudice shown. The circuit court's ruling on the delay issue was erroneous and is reversed.

B. Blood Test

The second issue we consider is whether Deputy Lilly's failure to provide Burks with the results of and information about the blood test was grounds to overturn the license suspension.

W.Va.Code, 17C-5-9 [1983] states that a driver arrested for DUI has a right to demand a blood test, and the "analysis disclosed by such ... test shall be made available to such arrested person forthwith upon demand."² See Moczek v. Bechtold, 178 W.Va. 553, 363 S.E.2d 238 (1987). Since the blood test was requested by Burks, the DMV argues that the hospital, and not Deputy Lilly, had the burden of producing the results—and that Deputy Lilly was not required to act as an agent of Burks to obtain the results. Furthermore, the DMV argues that there is nothing in the record to suggest that the blood test results were exculpatory.

Burks argues that the blood test provided for by W.Va.Code, 17C-5-9 [1983] must be administered pursuant to the provisions of W.Va.Code, 17C-5-6 [1981].³ This statute says that the results of a blood test taken at the direction of law enforcement must be provided to the arrestee upon request.

In the instant case, the record is unclear as to what degree of involvement the arresting officer had with the taking of blood from Burks. Burks argues that the officer should have: (1) taken Burks into the hospital, and directed hospital personnel to perform a blood test using statutorily prescribed methods (apparently police officers frequently carry blood test kits that meet statutory criteria); (2) followed the customary practice of taking and sending the blood sample to the state police lab for testing; and (3) then given the results to Burks and the commissioner. Burks suggests that this procedure is required whenever a driver arrested for DUI requests a blood test.

We observe that the repeated amend...