Jordan v. Roberts, 14093

• Decision Date: 11 July 1978
• Docket Number: No. 14093,14093
• Court: West Virginia Supreme Court
• Parties: John Willison JORDAN v. Virginia L. ROBERTS, Commissioner, Department of Motor Vehicles.

Page 259

246 S.E.2d 259

161 W.Va. 750

John Willison JORDAN v. Virginia L. ROBERTS, Commissioner, Department of Motor Vehicles.

No. 14093.

Supreme Court of Appeals of West Virginia.

July 11, 1978.

Syllabus by the Court

1. A driver's license is a property interest which requires the protection of this State's Due Process Clause before its suspension can be obtained under the implied consent law. W.Va.Code, 17C-5A-1, Et seq.

2. Under procedural due process concepts a hearing must be appropriate to the nature of the case and from this flows the principle that the State cannot preclude the right to litigate an issue central to a statutory violation or deprivation of a property interest.

3. The administrative proceedings for suspension of a driver's license under W.Va.Code, 17C-5A-1, Et seq., do not violate this State's Due Process Clause.

4. Where the request is made to take the ultimately designated test under the implied consent law and the licensee by his conduct or words manifests a reluctance to take the test or qualifies his assent to take the test on factors that are extraneous to the procedures surrounding the test, proof of refusal is sufficiently established.

Morton I. Taber, Michael T. Clifford, Taber & Clifford, Charleston, for appellant.

Chauncey H. Browning, Jr., Atty. Gen., Richard L. Gottlieb, Asst. Atty. Gen., Charleston, for appellee.

MILLER, Justice:

John Willison Jordan appeals the suspension of his driver's license by the Commissioner of Motor Vehicles, which action was affirmed by the Circuit Court of Kanawha County. The suspension was based on appellant's refusal to submit to a breathalyzer examination pursuant to the provisions of W.Va.Code, 17C-5A-1, Et seq. The principal contention on appeal is that this statute violates his procedural due process rights as guaranteed by our State and Federal Constitutions. We disagree and affirm the judgment.

Under the provisions of W.Va.Code, 17C-5A-1, commonly known as the implied consent law, a person is deemed to give his consent to a chemical test to determine the content of alcohol in his body by operating a motor vehicle on a public highway in this State. The test may only be administered as an incident to a lawful arrest by a law enforcement officer who has reasonable grounds to believe the driver was driving on a public highway while under the influence of intoxicating liquor.

Three tests are statutorily authorized blood, urine and breath. The officer selects which test will be performed from those designated by his law enforcement agency. If a blood test is selected and the driver refuses to submit to it, his license cannot be suspended on this basis. However, the officer can designate one of the two other tests and if the driver refuses, the officer is required to explain that the refusal to take such test will result in a suspension of the driver's license for a six-month period. W.Va.Code, 17C-5A-1.

Where there is a refusal to submit to the test finally designated, the officer reports to the Commissioner of Motor Vehicles by a sworn affidavit that (1) he had reasonable grounds to believe the person was driving while under the influence of intoxicating liquor; (2) the person was lawfully placed under arrest for the offense of driving while under the influence of intoxicating liquor; (3) the person refused to submit to the test; and (4) the person was told that his license would be suspended for a period of six months if he refused to submit to the test. The Commissioner, on receipt of the affidavit, is required to enter a suspension order. It is mailed to the person by return receipt, but it is not effective until ten days after receipt. W.Va.Code, 17C-5A-3.

A person whose license has been suspended has the right to a hearing before the Commissioner or his authorized agent or deputy if he files a written request within ten days after receipt of the suspension order. The scope of the hearing covers the four items set out in the arresting officer's affidavit. If the Commissioner confirms the suspension, the driver has the right to appeal the ruling to a Circuit Court and thereafter to this Court. W.Va.Code, 17C-5A-4.

This Court has previously dealt with questions surrounding the admissibility into evidence at a criminal trial of the results of a breathalyzer test. State v. Dyer, W.Va., 233 S.E.2d 309 (1977); State v. Byers, W.Va., 224 S.E.2d 726 (1976). We have not had occasion to discuss the constitutional aspects of the administrative revocation under the implied consent law.

While Jordan was arrested for driving under the influence, this criminal charge is not before us. The questions presented are whether the statutory license suspension procedures outlined above comport with the procedural due process requirements of our State and Federal Constitutions, and whether there is sufficient evidence in the record to support the suspension.

From a federal standpoint, a driver's license is a sufficiently valuable right to require due process procedures before it can be suspended by a state. Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971). Under the principles of Waite v. Civil Service Commission, W.Va.,241 S.E.2d 164 (1977), and North v. Board of Regents, W.Va., 233 S.E.2d 411 (1977), we characterize a driver's license as a property interest and require the protection of our Due Process Clause before its suspension under the implied consent law.

In Bell, the driver's license was suspended under the Georgia Motor Vehicle Safety Responsibility Act, which provided that anyone involved in an automobile accident must furnish security for the resulting damage to third parties.

Certain statutory exceptions relieved those who carried automobile liability insurance and others from the ambit of the security posting requirement. An administrative hearing was provided, and the issues were limited to whether the licensed operator (1) was involved in an accident; (2) complied with the security posting law; or (3) met any of the statutory exceptions.

The critical issue in Bell was whether the State was required as a matter of due process to give the licensee an opportunity to demonstrate at the administrative hearing that he was without fault in the accident. The Court noted, "the inquiry into fault or liability requisite to afford the licensee due process need not take the form of a full adjudication of the question of liability," 402 U.S. at 540, 91 S.Ct. at 1590, but concluded that a sufficient hearing was required to determine if there was a reasonable possibility of a judgment being rendered against him:

"We hold, then, that under Georgia's present statutory scheme, before the State may deprive petitioner of his driver's license and vehicle registration it must provide a forum for the determination of the question whether there is a reasonable possibility of a judgment being rendered against him as a result of the accident." (402 U.S. at 542, 91 S.Ct. at 1591)

Under procedural due process a hearing must be "appropriate to the nature of the case." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). From this flows the principle that the state cannot preclude the right to litigate an issue central to the statutory violation or deprivation.

This principle has been recognized in a number of cases condemning statutes aimed at curtailing or cutting off valuable rights based on a presumption contained within the statute. See, e. g., Carrington v. Rash, 380 U.S. 89, 96, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965) (voter's registration statute denying servicemen the right to vote without regard to residency); Stanley v. Illinois, 405 U.S. 645, 653, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (depriving unwed father the right to contest his fitness for custody of his natural child); Vlandis v. Kline, 412 U.S. 441, 451, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973) (non-residency presumed for purpose of state college tuition from any legal address outside the state during a one-year period prior to application for admission); U. S. Department of Agriculture v. Murry, 413 U.S. 508, 513, 93 S.Ct. 2832, 37 L.Ed.2d 767 (1973) (qualification for food stamps for dependent children based on a prior year income tax dependency of noneligible householder).

Implied consent laws have historically been viewed as an effort on the part of the state to decrease the damage to persons and property arising from drivers operating motor vehicles while under the influence of intoxicating liquor. ¹ 14 Blashfield Automobile Law and Practice § 468.41, p. 126 Et seq. (3rd ed. 1969); Comment, Implied Consent-Highway Safety, 70 W.Va.L.Rev. 408 (1968). Our statute frames one of the essential issues that must be found against the licensee before his suspension can be upheld, that there was reasonable grounds for the arresting officer to believe that the licensee was driving while under the influence of intoxicating liquor. W.Va.Code, 17C-5A-4.

A showing that the arresting officer had reasonable grounds to believe the licensee was driving while under the influence of intoxicating liquor is comparable to proof by a preponderance of evidence of the fact he was driving under the influence of intoxicating liquor. The general rule, unless altered by statute, is that in an administrative proceeding the required degree of proof is a preponderance of the evidence. 2 Am.Jur.2d Administrative Law § 392; Cf., Harper v. State Workmen's Compensation Commissioner, W.Va., 234 S.E.2d 779 (1977).

Thus, we believe under the Bell-Mullane rationale, the State has afforded in the administrative procedure an adequate opportunity under due process concepts for the licensee to contest the key issue of whether there was a reasonable basis to conclude that he was driving under the influence of intoxicating liquor. Moreover, the same is true of the other statutory issues which are a predicate to a suspension: that such person was lawfully placed...