In re Petition of McKinney

• Decision Date: 29 November 2005
• Docket Number: No. 32748.,32748.
• Citation: 625 S.E.2d 319
• Parties: In re Petition of Scott A. MCKINNEY for Judicial Review of Administrative Decision Made By F. Douglas Stump, Commissioner, Department of Transportation, Division of Motor Vehicles.
• Court: West Virginia Supreme Court

625 S.E.2d 319

In re Petition of Scott A. MCKINNEY for Judicial Review of Administrative Decision Made By F. Douglas Stump, Commissioner, Department of Transportation, Division of Motor Vehicles.

No. 32748.

Supreme Court of Appeals of West Virginia.

Submitted: November 1, 2005.

Filed: November 29, 2005.

Syllabus by the Court

1. "When a statute is clear and unambiguous and the legislative intent is plain[,] the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute." Syllabus Point 1, State ex rel. Fox v. Board of Trustees of Policemen's Pension, 148 W.Va. 369, 135 S.E.2d 262 (1964), overruled on other grounds, Booth v. Sims, 193 W.Va. 323, 456 S.E.2d 167 (1995).

2. Pursuant to W.Va.Code § 17B-3-6(a)(1) (1997), the West Virginia Division of Motor Vehicles is authorized to suspend the driver's license of any person without preliminary hearing upon a showing by its records or other sufficient evidence that the licensee committed an offense for which mandatory revocation of a driver's license is required upon conviction, regardless of whether the licensee is convicted of the offense.

3. The purpose of this State's administrative driver's license revocation procedures is to protect innocent persons by removing intoxicated drivers from the public roadways as quickly as possible.

Darrell V. McGraw, Jr., Esq., Attorney General, Janet E. James, Esq., Assistant Attorney General, Charleston, for F. Douglas Stump, Commissioner, West Virginia Division of Motor Vehicles.

Randy D. Hoover, Esq., Beckley, for Scott A. McKinney.

Justice MAYNARD delivered the Opinion of the Court.

Chief Justice ALBRIGHT and Justice STARCHER concur, in part, and dissent, in part and reserve the right to file separate opinions.

MAYNARD, Justice.

Appellant F. Douglas Stump, Commissioner of the West Virginia Division of Motor Vehicles, appeals the November 17, 2004 order of the Circuit Court of Raleigh County that reversed an administrative driver's license revocation. For the reasons that follow, we reverse the circuit court's order.

I. FACTS

Scott A. McKinney, Appellee herein, was convicted of driving under the influence (hereafter "DUI") on October 2, 1997. As a result of that conviction, the Commissioner of the Division of Motor Vehicles (hereafter "the Commissioner") revoked McKinney's driver's license.

On February 24, 2002, while McKinney's driver's license remained revoked, he was arrested for speeding and for driving while revoked for DUI in violation of W.Va.Code § 17B-4-3(b) (2004).¹ McKinney subsequently pled guilty to a lesser speeding offense and to the lesser crime of driving while suspended or revoked for administrative reasons in violation of W.Va.Code § 17B-4-3(a).

The Division of Motor Vehicles (hereafter "the Division") thereafter issued an order, dated March 11, 2003, that advised McKinney that his privilege to drive was suspended for one year pursuant to W.Va.Code § 17B-3-6(a)(1) (1997). The order advised McKinney that "the Division records and/or other evidence shows that you drove on 02/24/02 while your license was suspended for driving under the influence of alcohol."

After a February 23, 2004, hearing, the Commissioner of the Division of Motor Vehicles upheld the suspension, concluding that McKinney "operated a motor vehicle on February 24, 2002, while his license was revoked for driving under the influence." Additionally, the Commissioner found that "Pursuant to West Virginia Code § 17B-3-6(a), the Division is authorized to suspend the driver's license of any person without preliminary hearing upon showing by its records or other sufficient evidence that the licensee has committed an offense in which mandatory revocation of a driver's license is required upon conviction." McKinney appealed to the Circuit Court of Raleigh County.

By order entered November 17, 2004, the circuit court reversed the administrative license suspension. The circuit court reasoned that because McKinney was convicted of driving while suspended for administrative reasons pursuant to W.Va.Code § 17B-4-3(a), which does not require suspension for a first offense under W.Va.Code § 17B-4-3(c), the Commissioner was precluded from suspending McKinney's license for an additional year. The Commissioner now appeals the circuit court's order.

II. STANDARD OF REVIEW

Concerning the standard of review in cases like the one before us, we have indicated that "[t]his Court applies the same standard of review that the circuit court applied to the Commissioner's administrative decision — giving deference to the Commissioner's purely factual determinations; and giving de novo review to legal determinations." Choma v. West Virginia DMV, 210 W.Va. 256, 258, 557 S.E.2d 310, 312 (2001). Because the instant appeal involves a question of statutory interpretation, we apply a de novo standard.

III. DISCUSSION

This case concerns the construction and application of two statutes. First, W.Va.Code § 17B-3-6(a)(1) (1997), relied upon by the Division in suspending McKinney's driver's license, provides,

(a) The division is hereby authorized to suspend the driver's license of any person without preliminary hearing upon a showing by its records or other sufficient evidence that the licensee:

(1) Has committed an offense for which mandatory revocation of a driver's license is required upon conviction[.]

Plainly, this statute indicates that the Division is authorized to suspend a person's driver's license when it has sufficient evidence that the person committed an offense for which mandatory revocation of a driver's license is required upon conviction.

The second statute is W.Va.Code § 17B-4-3 (2004), relied upon by the circuit court in reversing McKinney's license revocation for driving while revoked for DUI, which provides in part,

(a) Except as otherwise provided in subsection (b) or (d) of this section, any person who drives a motor vehicle on any public highway of this state at a time when his or her privilege to do so has been lawfully suspended or revoked by this state or any other jurisdiction is, for the first offense, guilty of a misdemeanor....

(b) Any person who drives a motor vehicle on any public highway of this state at a time when his or her privilege to do so has been lawfully revoked for driving under the influence of alcohol, controlled substances or other drugs, or for driving while having an alcoholic concentration in his or her blood of eight hundredths of one percent or more, by weight, or for refusing to take a secondary chemical test of blood alcohol content, is, for the first offense, guilty of a misdemeanor....

(c) Upon receiving a record of the first or subsequent conviction of any person under subsection (b) of this section upon a charge of driving a vehicle while the license of such person was lawfully suspended or revoked, the division shall extend the period of such suspension or revocation for an additional period of one year and after the date such person would otherwise have been entitled to apply for a new license. Upon receiving a record of the second or subsequent conviction of any person under subsection (a) of this section upon a charge of driving a vehicle while the license of such person was lawfully suspended or revoked, the division shall extend the period of such suspension or revocation for an additional period of one year from and after the date such person would otherwise have been entitled to apply for a new license.

Subsection (c) of this statute indicates that license revocation is mandated only upon a second or subsequent conviction for driving while revoked for administrative reasons. The question before this Court is which of these two statutes applies to McKinney.

The Commissioner argues that W.Va.Code § 17B-3-6(a)(1) applies. According to the Commissioner, this code section authorizes the Division to suspend a person's driver's license upon a showing of sufficient evidence that the person has committed an offense for which mandatory revocation of a driver's license is required upon conviction. According to the Commissioner, McKinney's driver's license was not suspended for driving while revoked for administrative reasons. Rather, the Division had sufficient evidence in its records² that McKinney drove a vehicle while his license was revoked for DUI. Further, asserts the Commissioner, according to W.Va.Code § 17B-4-3(c), a first conviction for driving while revoked for DUI requires extending the license suspension for an additional year. Therefore, the Commissioner concludes that the Division had the authority, pursuant to W.Va.Code § 17B-3-6(a)(1), to suspend McKinney's license.

This Court agrees with the Commissioner that the Division had the authority to suspend McKinney's driver's license after it received evidence that he drove a vehicle while his driver's license was revoked for DUI, even though McKinney was not actually convicted of driving while revoked for DUI. When this Court is called upon to determine the meaning of a statute, we are guided by the principle that "[w]hen a statute is clear and unambiguous and the legislative intent is plain the statute should not be interpreted by the courts, and in such a case it is the duty of the courts not to construe but to apply the statute." Syllabus Point 1, State ex rel. Fox v. Board of Trustees of Policemen's Pension, 148 W.Va. 369, 135 S.E.2d 262 (1964), overruled on other grounds, Booth v. Sims, 193 W.Va. 323, 456 S.E.2d 167 (1995). Applying this principle to W.Va.Code § 17B-3-6(a)(1) leads us to conclude that this code section is clear and unambiguous, and the Legislature's intent when it enacted the statute is plain. Therefore, we hold that pursuant to W.Va.Code § 17B-3-6(a)(1) (1997), the West Virginia Division of Motor Vehicles is authorized to suspend the driver's license of any person without preliminary hearing upon a showing by its records or other...