Sims v. Miller
| Decision Date | 13 May 2011 |
| Docket Number | No. 35673.,35673. |
| Citation | 709 S.E.2d 750,227 W.Va. 395 |
| Parties | Edward L. SIMS, II, Petitioner Below, Appelleev.Joe E. MILLER, Commissioner, West Virginia Division of Motor Vehicles, Respondent Below, Appellant. |
| Court | West Virginia Supreme Court |
1. “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).
2. “In cases where the circuit court has [reversed] the result before the administrative agency, this Court reviews the final order of the circuit court and the ultimate disposition by it of an administrative law case under an abuse of discretion standard and reviews questions of law de novo.” Syllabus point 2, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996).
3. “Judicial interpretation of a statute is warranted only if the statute is ambiguous and the initial step in such interpretative inquiry is to ascertain the legislative intent.” Syllabus point 1, Ohio County Commission v. Manchin, 171 W.Va. 552, 301 S.E.2d 183 (1983).
4. “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 5, State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W.Va. 137, 107 S.E.2d 353 (1959).
5. W. Va.Code § 17C–5–8(a) (2004) (Repl.Vol.2009) allows the admission of evidence of a chemical analysis performed on a specimen that was collected within two hours of either the acts alleged or the time of the arrest.
6. “Where there is a direct conflict in the critical evidence upon which an agency proposes to act, the agency may not elect one version of the evidence over the conflicting version unless the conflict is resolved by a reasoned and articulate decision, weighing and explaining the choices made and rendering its decision capable of review by an appellate court.” Syllabus point 6, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996).
7. “In administrative proceedings under W. Va.Code, 17C–5A–1 et seq. , the commissioner of motor vehicles must consider and give substantial weight to the results of related criminal proceedings involving the same person who is the subject of the administrative proceeding before the commissioner, when evidence of such results is presented in the administrative proceeding.” Syllabus point 3, Choma v. West Virginia Division of Motor Vehicles, 210 W.Va. 256, 557 S.E.2d 310 (2001).
Darrell V. McGraw, Jr., Attorney General, Janet James, Assistant Attorney General, Charleston, WV, Attorneys for the Appellant. Gregory W. Sproles, Breckinridge, Davis, Sproles & Chapman, PLLC, Summersville, WV, Attorney for the Appellee.
In this case, Joe E. Miller, Commissioner of the West Virginia Division of Motor Vehicles (hereinafter referred to as “Commissioner Miller”), respondent below and appellant, appeals an order of the Circuit Court of Nicholas County that reversed Commissioner Miller's “Remand Final Order,” which revoked the driver's license of Mr. Edward L. Sims, II (hereinafter referred to as “Mr. Sims”), petitioner below and appellee, following Mr. Sims' arrest for Driving under the Influence of Alcohol. On appeal, Commissioner Miller assigns error to the circuit court's conclusions that Commissioner Miller: (1) improperly relied upon a secondary chemical test of the breath, the Intoximeter Test, that was administered more than two hours after Mr. Sims last drove a motor vehicle; (2) failed to reconcile conflicting testimonial evidence in accord with Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996), and Choma v. West Virginia Division of Motor Vehicles, 210 W.Va. 256, 557 S.E.2d 310 (2001); (3) failed to give substantial weight to the dismissal of the criminal case against Mr. Sims in accordance with Choma; and (4) failed to apply an adverse inference against the testimony of the arresting officer in light of the officer's failure to introduce a videotape recording of the officer administering Mr. Sims' Intoximeter Test.1 Because we agree with Commissioner Miller that the circuit court's conclusions were in error, we reverse the order of the circuit court and reinstate Commissioner Miller's order revoking Mr. Sims' license to operate a motor vehicle.
On November 23, 2007, Deputy J.B. Bailey of the Nicholas County Sheriff's Department responded to a single vehicle accident on Levisay Road in Nettie, Nicholas County, West Virginia. When Deputy Bailey arrived at the scene, he found a vehicle on its top in front of a residence with no driver present. As Deputy Bailey began to look around the vehicle, the driver, Mr. Sims, exited the nearby residence.2 Deputy Bailey spoke with Mr. Sims and noticed the odor of alcohol. In addition, he observed that Mr. Sims staggered while walking; was unsteady on his feet; had slow, slurred speech; and had glassy eyes. Consequently, Deputy Bailey administered three field sobriety tests, 3 which Mr. Sims failed. Deputy Bailey also administered a preliminary breath test, which Mr. Sims also failed. At approximately 12:19 a.m., Mr. Sims was placed under arrest for the offense of Driving Under the Influence of Alcohol (hereinafter referred to as “DUI”) in violation of W. Va.Code § 17C–5–2 (2010) (Supp.2010).4 Mr. Sims was transported to the Nicholas County Courthouse where a secondary chemical test of the breath, an Intoximeter Test, was administered. The results of the test showed that Mr. Sims had a blood alcohol content of .091.5 Deputy Bailey completed a DUI Information Sheet. Mr. Sims was then transported to Summersville Memorial Hospital, upon his own request, so that a blood test could be administered. Finally, Mr. Sims was taken to the Central Regional Jail.
Mr. Sims was charged with DUI; however the criminal case was subsequently dismissed by the Nicholas County Magistrate Court pursuant to a plea agreement by which Mr. Sims agreed to plead guilty to separate charges. 6
Commissioner Miller issued an initial order of revocation on December 18, 2007, which revoked Mr. Sims' license to operate a motor vehicle for a period of six months. Mr. Sims timely requested a hearing, which was held on August 6, 2008. Following the hearing, by final order effective November 10, 2008, Commissioner Miller upheld his initial order of revocation. Mr. Sims appealed to the Circuit Court of Nicholas County. During the pendency of the circuit court proceedings, the parties agreed that the matter should be remanded to Commissioner Miller in order to comply with the mandates of Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996), and Choma v. West Virginia Division of Motor Vehicles, 210 W.Va. 256, 557 S.E.2d 310 (2001). Accordingly, the circuit court entered an order remanding the action and staying the revocation of Mr. Sims' driver's license. Following the remand, Commissioner Miller entered a “Remand Final Order,” effective August 3, 2009, in which he again affirmed the six-month revocation of Mr. Sims' driver's license. Mr. Sims appealed the “Remand Final Order” to the circuit court. By order entered December 30, 2009, the circuit court reversed Commissioner Miller's order and reinstated Mr. Sims' license and driving privileges. This appeal followed.
This Court has previously established the standards for our review of a circuit court's order deciding 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. In addition, the Muscatell Court held that,
[i]n cases where the circuit court has [reversed] the result before the administrative agency, this Court reviews the final order of the circuit court and the ultimate disposition by it of an administrative law case under an abuse of discretion standard and reviews questions of law de novo.
Syl. pt. 2, id. With due consideration for these standards, we address the issues herein raised.
In this appeal, Commissioner Miller has asserted several errors. We will address each of these alleged errors separately.
With regard to the Intoximeter test, which is a secondary chemical test of the breath, the circuit court found that The circuit court then concluded that, because the secondary chemical test of Mr. Sims' breath was conducted more than two hours from the time he last drove a motor vehicle, Commissioner Miller erred by relying on the same to revoke Mr. Sims' license.
Commissioner Miller argues that, in reaching this conclusion, the circuit court erred and misapplied the plain language of W. Va.Code § 17C–5–8(a) (2004) (Repl.Vol.2009), which requires the secondary chemical test of breath be administered within two hours of either the act charged or the arrest therefor. Commissioner Miller contends that the secondary chemical test of Mr. Sims' breath was conducted within two hours of his arrest and was, therefore, properly relied upon.
Mr. Sims argues that the clear meaning of W. Va.Code § 17C–5–8(a) requires that a sample of a person's blood, breath, or urine...
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