Noble v. Wv. Dept. of Motor Vehicles

• Decision Date: 11 June 2009
• Docket Number: No. 34328.,34328.
• Citation: 679 S.E.2d 650
• Court: West Virginia Supreme Court
• Parties: Sharon G. NOBLE, Petitioner Below, Appellee, v. WEST VIRGINIA DEPARTMENT OF MOTOR VEHICLES, Joseph Cicchirillo, Commissioner, Respondent Below, Appellant.

679 S.E.2d 650

Sharon G. NOBLE, Petitioner Below, Appellee, v. WEST VIRGINIA DEPARTMENT OF MOTOR VEHICLES, Joseph Cicchirillo, Commissioner, Respondent Below, Appellant.

No. 34328.

Supreme Court of Appeals of West Virginia.

Submitted February 24, 2009.

Decided June 11, 2009.

Syllabus by the Court

"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." Syllabus Point 1, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996).

Darrell V. McGraw, Jr., Attorney General, Janet E. James, Assistant Attorney General, Charleston, WV, for Appellant.

Paul S. Detch, Esq., Lewisburg, WV, for Appellee.

PER CURIAM:

This is an appeal by Joseph Cicchirillo, the Commissioner of the West Virginia Department of Motor Vehicles ("the Commissioner"), from an order entered by the Circuit Court of Kanawha County on November 16, 2007. The circuit court reversed the Commissioner's administrative order revoking Sharon Noble's license to drive following her arrest for driving under the influence.

After careful consideration of the record, we reverse the judgment of the circuit court.

I. Facts & Background

On January 12, 2007, appellee Sharon Noble was arrested by a city police officer in Ronceverte, West Virginia, and charged with driving a vehicle under the influence of alcohol in violation of a municipal ordinance of the City of Ronceverte. The city police officer submitted to the Commissioner a "DUI Information Sheet/Statement of Arresting Officer." The officer's statement described the circumstances and evidence supporting Ms. Noble's arrest, but said nothing regarding the municipal ordinance under which Ms. Noble was arrested.

Upon receiving the officer's statement, the Commissioner suspended Ms. Noble's driver's license for a period of six months. Ms. Noble then requested and was granted an administrative hearing to contest the suspension. On the "Hearing Request Form," Ms. Noble was asked to provide the grounds upon which she claimed her suspension should be dismissed or modified, and she replied: "validity of traffic stop."

An administrative hearing was held on March 27, 2007. The hearing examiner took judicial notice of all of the documents contained in the file, including a secondary chemical test showing Ms. Noble's blood alcohol concentration when she was arrested was .099, and the criminal complaint filed by the city police officer which stated that Ms. Noble was arrested in violation of "Municipal Ordinance No.: 3-17-1."¹ Counsel for Ms. Noble had an opportunity to review the documents in the file and did not object to their admission. The city police officer testified at the administrative hearing and stated the reasons he initiated the traffic stop and described the factors that led him to conclude that Ms. Noble was DUI. Counsel for Ms. Noble did not cross examine the officer, did not present any evidence, and did not make any motions, objections or arguments.

After the hearing, the hearing examiner made a finding that the city police officer had reasonable grounds to stop, and probable cause to arrest, Ms. Noble. The hearing examiner also found that Ms. Noble "committed an offense described in West Virginia Code § 17C-5-2, in that [she] drove a motor vehicle in this state while under the influence of alcohol." Based on the hearing examiner's findings, the Commissioner entered a Final Order suspending Ms. Noble's driver's license for six months effective July 5, 2007.

Ms. Noble thereafter filed an appeal in the Circuit Court of Kanawha County. In her appeal, Ms. Noble asserted that the Commissioner is required, pursuant to W.Va.Code, 17C-5A-1(c), to make findings that a municipal DUI ordinance has the same substantial elements as an offense described the state DUI statute, W.Va.Code, 17C-5-2.² If the municipal ordinance does not, then Ms. Noble argued — under W.Va.Code, 17C-5-11 — that the municipal ordinance was "null and void."³ For the first time, Ms. Noble argued to the circuit court that because the city police officer did not introduce a copy of the municipal ordinance into the record before the hearing examiner, the hearing examiner had no basis to conclude that she had driving under the influence of alcohol in a way "described in West Virginia Code § 17C-5-2" or that the Ronceverte municipal DUI ordinance had the same elements as the state DUI law.

Upon reviewing the findings of the hearing examiner, in an order entered November 16 2007, the circuit court reversed the Commissioner's Final Order. The circuit court found that Ms. Noble had been arrested for violating a municipal DUI ordinance, but that there was no mention of the municipal ordinance, by either party, at the administrative hearing. The circuit court therefore found that there was no way for the Commissioner to have ascertained whether the municipal ordinance under which Ms. Noble was arrested had substantially the same elements as the offense of DUI set forth in W.Va.Code, 17C-5-2, and found that Ms. Noble could not confront the specific, lawful elements of the municipal ordinance under which she was charged. The circuit court ordered that Ms. Noble's driving privileges be reinstated.

The Commissioner now appeals the circuit court's order to this Court.

II. Standard of Review

The Commissioner is appealing a circuit court order reversing its revocation of Ms. Noble's driver's license. This Court applies the same standard of review that the circuit court applied to the Commissioner's administrative decision, i.e., we give deference to the Commissioner's purely factual determinations but give a de novo review to legal determinations. See Syllabus Point 1, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996) ("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.").

III. Discussion

On appeal, the Commissioner asserts that the circuit court erred because Ms. Noble failed to raise, before the hearing examiner, any questions regarding whether the Ronceverte municipal DUI ordinance differed substantively from West Virginia law. The Commissioner argues that, because the issue was raised for the first time on appeal to the circuit court, the question should not have been considered by the circuit court. We agree.

"Our general rule is that nonjurisdictional questions ... raised for the first time on appeal, will not be considered." Shaffer v. Acme Limestone Co., Inc., 206 W.Va. 333, 349 n. 20, 524 S.E.2d 688,...