State ex rel. Frazier v. McGraw, No. 20-0142

CourtSupreme Court of West Virginia
Writing for the CourtArmstead, Chief Justice
Citation850 S.E.2d 720,243 W.Va. 721
Docket NumberNo. 20-0142
Decision Date02 November 2020
Parties STATE of West Virginia EX REL. Everett FRAZIER, Commissioner West Virginia Division of Motor Vehicles, Petitioner v. The Honorable Warren R. MCGRAW, Judge of the Circuit Court of Wyoming County, and Dalton Watts, Respondents

243 W.Va. 721
850 S.E.2d 720

STATE of West Virginia EX REL. Everett FRAZIER, Commissioner West Virginia Division of Motor Vehicles, Petitioner
v.
The Honorable Warren R. MCGRAW, Judge of the Circuit Court of Wyoming County, and Dalton Watts, Respondents

No. 20-0142

Supreme Court of Appeals of West Virginia.

Submitted: October 7, 2020
Filed: November 2, 2020


Patrick Morrisey, Esq., Attorney General, Janet E. James, Esq., Assistant Attorney General, Charleston, West Virginia, Counsel for Petitioner.

Lela D. Walker, Esq., Oceana, West Virginia, Counsel for Respondent Watts.

Armstead, Chief Justice:

Everett Frazier, Commissioner of the West Virginia Division of Motor Vehicles ("DMV"), seeks to prohibit The Honorable Warren R. McGraw, Judge of the Circuit Court of Wyoming County, from enforcing his November 7, 2019, order that stayed the DMV's administrative revocation of the driver's

850 S.E.2d 722

license of Dalton Watts ("Watts") pending appeal to the circuit court. The DMV contends that because there was no contested case in the administrative proceeding, the circuit court did not have jurisdiction. The DMV further contends that the relief sought – granting Watts another administrative hearing – could only be accomplished by seeking extraordinary relief in mandamus against the nonparty Office of Administrative Hearings ("OAH") in Kanawha County. For the reasons stated herein, we agree with the DMV that the Wyoming County Circuit Court had no jurisdiction to hear this matter and issue the stay pending appeal.

I. FACTUAL AND PROCEDURAL BACKGROUND

On October 25, 2015, Watts was driving his 1985 Chevrolet Blazer on West Virginia Route 10 in Matheny, West Virginia, when he was observed by Wyoming County Deputy Sheriff McKinney to be drifting, straddling the lane line, and swerving. Deputy McKinney initiated a traffic stop and pulled Watts over. Deputy McKinney then administered three field sobriety tests on Watts – the horizontal gaze nystagmus test, the walk and turn test, and the one leg stand. Watts failed the horizontal gaze nystagmus and walk and turn tests. He was unable to perform the one leg stand. Thereafter, Watts submitted to two separate preliminary breath tests, showing his blood alcohol content to be .081 and .082, respectively. Watts was then transported to the Wyoming County Sheriff's Department where a secondary chemical test was administered. The result of that test showed Watts’ blood alcohol content to be .076, and Deputy McKinney declined to arrest Watts.

Deputy McKinney transmitted his West Virginia DUI Information Sheet to the DMV, which issued an "ORDER OF REVOCATION NOTICE" dated November 5, 2015, noting that Watts’ "driving privileges will be revoked at 12:01 a.m. ET" on December 10, 2015, for a period of one year. In that order, the DMV informed Watts that he "may Petition the [OAH] for a hearing," which Watts timely did.

The administrative hearing was first set for April 5, 2016. During the next three years, the matter was set for hearing a total of sixteen times. At the August 15, 2019, hearing, neither Watts nor his lawyer appeared. Notice of the August 15, 2019, hearing was sent to Watts’ lawyer via email and was also included in the administrative order granting the previous continuance dated July 23, 2019.

Because Watts failed to appear at the hearing, the OAH entered a final order, affirming the Order of Revocation dated November 5, 2015, because an "unexcused failure to appear at [the] administrative hearing is construed as an implicit withdrawal of [the] request for a hearing as well as a waiver of [Watts’] right to contest the suspension and/or revocation." A copy of this final order was sent to Watts, who then went to his lawyer about the missed hearing. Watts’ attorney informed Watts that "he didn't want anything to do with the case anymore." Watts then retained another lawyer who filed the purported appeal in the Wyoming County Circuit Court.

After a hearing, the circuit court, by its November 7, 2019, order, stayed the revocation of Watts’ license pending appeal. Thereafter, the DMV sought this writ to prohibit the circuit court from proceeding, maintaining that the OAH's final order was not appealable because there was no contested case before the OAH. The DMV further argues that Watts’ request for relief below should properly be...

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1 practice notes
  • Otto v. Catrow Law PLLC, No. 19-0361
    • United States
    • Supreme Court of West Virginia
    • November 2, 2020
    ...of a locality rule in legal malpractice cases.First, let me state in the clearest terms: I defy anyone to argue that West Virginia 850 S.E.2d 720 attorneys do not have the "knowledge, skill, and ability" of lawyers anywhere else in this country. This State boasts a first-class law school; a......
1 cases
  • Otto v. Catrow Law PLLC, No. 19-0361
    • United States
    • Supreme Court of West Virginia
    • November 2, 2020
    ...of a locality rule in legal malpractice cases.First, let me state in the clearest terms: I defy anyone to argue that West Virginia 850 S.E.2d 720 attorneys do not have the "knowledge, skill, and ability" of lawyers anywhere else in this country. This State boasts a first-class law school; a......

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