Opinion
No. 20-0225
04-15-2022
Everett FRAZIER, Commissioner, West Virginia Division of Motor Vehicles, Petitioner Below, Petitioner v. Douglas H. NULL, Respondent Below, Respondent
Patrick Morrisey, Esq., West Virginia Attorney General, Elaine L. Skorich, Esq., Assistant Attorney General, Charleston, West Virginia, Counsel for Petitioner David Pence, Esq., Charleston, West Virginia, Counsel for Respondent
Patrick Morrisey, Esq., West Virginia Attorney General, Elaine L. Skorich, Esq., Assistant Attorney General, Charleston, West Virginia, Counsel for Petitioner
David Pence, Esq., Charleston, West Virginia, Counsel for Respondent
Armstead, Justice: Respondent, Douglas H. Null, was arrested for driving a motor vehicle while under the influence of alcohol, controlled substances, or drugs ("DUI"), and a sample of his blood was drawn for testing. The West Virginia Division of Motor Vehicles ("DMV") revoked Mr. Null's driving privileges, but when Mr. Null appealed the revocation to the Office of Administrative Hearings ("OAH"), DMV advised that the blood sample had been destroyed without testing. In light of this information, OAH reinstated Mr. Null's driving privileges, finding that the destruction of the blood sample, without testing, deprived him of potentially exculpatory evidence and violated his right to due process. On appeal, the Circuit Court of Kanawha County, West Virginia, agreed with OAH, and Petitioner, Everett J. Frazier, Commissioner of the Division of Motor Vehicles, (the "Commissioner") filed this appeal.
We note that OAH ceased to exist on July 1, 2021. W. Va. Code § 17C-5C-1a(d) (eff. 2020).
Based on the record before us, the arguments of the parties, and the applicable law, we find that OAH's application of the law to its factual findings was incorrect and that OAH incorrectly reversed the revocation of Mr. Null's driving privileges; therefore, we reverse.
I. FACTUAL AND PROCEDURAL BACKGROUND
On May 26, 2014, a West Virginia State Trooper stopped Mr. Null for speeding. According to the DUI Information Sheet, Mr. Null's speech and departure from the vehicle were normal, but his eyes were bloodshot, and he was unsteady walking and standing. A marijuana bowl with residue was found in the car, and Mr. Null admitted to smoking a bowl of marijuana. When the trooper performed field sobriety tests, Mr. Null failed the horizontal nystagmus test, the walk-and-turn test, and the one-leg-stand test. The trooper took Mr. Null to a hospital for his blood to be drawn. Though a sample was taken, it was not analyzed and was later destroyed.
The DMV sent Mr. Null a revocation order, and he requested a hearing before OAH. After various continuances, OAH held an evidentiary hearing in March 2016. The trooper did not appear for the hearing because he was no longer employed by the State Police and DMV could not subpoena him. Accordingly, and over Mr. Null's objection, DMV proceeded against Mr. Null based on the DUI Information Sheet. Mr. Null testified in his own defense. According to him, he had not been smoking marijuana just before the stop, and he was the one who requested a blood test. On cross-examination, he testified that both the possession and the DUI charges had been dismissed. He also admitted that he told the trooper that he had smoked marijuana. He claimed, however, that he said this because he did not think the trooper would believe anything else—which is why he "absolutely wanted a blood test ... to prove that [he] hadn't smoked[ ] or ... wasn't intoxicated at the time." He blamed the failed field sobriety tests on uneven pavement, his weight, lack of balance, and nervousness, though he admitted that his "weight issue" would not have affected his eyes. He also admitted that he signed the DUI Information Statement—which included an admission that he had been under the influence of marijuana—but he claimed that he had not written those remarks, that he did not read them, and that he had only "30 seconds to read" the interview section. According to him, the bowl was not his but, rather, belonged to a prior passenger who had smoked marijuana in his vehicle. Mr. Null testified: "I guess whenever he got out of the car, it come out of his pocket or something." However, there was no testimony or evidence that he requested the results of his blood test or requested an opportunity to perform his own test on the blood sample. Rather, he merely checked a box saying that he wanted to challenge them.
We have held that
In an administrative hearing conducted by the Division of Motor Vehicles, a statement of an arresting officer, as described in W. Va.Code § 17C–5A–1(b) (2004) (Repl. Vol. 2004), that is in the possession of the Division and is offered into evidence on behalf of the Division, is admissible pursuant to W. Va.Code § 29A–5–2(b) (1964) (Repl. Vol. 2002).
Syl. Pt. 7, in part, Dale v. Odum , 233 W. Va. 601, 760 S.E.2d 415 (2014) (per curiam). West Virginia Code § 29A-5-2(b) (eff. 1964) provides that
All evidence, including papers, records, agency staff memoranda and documents in the possession of the agency, of which it desires to avail itself, shall be offered and made a part of the record in the case, and no other factual information or evidence shall be considered in the determination of the case. Documentary evidence may be received in the form of copies or excerpts or by incorporation by reference.
In August 2019, OAH entered a final order reversing the revocation. According to the order, the trooper "had reasonable grounds to believe that ... [Mr. Null]" was DUI because he had bloodshot eyes, he was unsteady while walking and standing, he admitted to smoking a bowl of marijuana, he had a bowl (with residue) in the car, and he failed field sobriety tests. OAH also found that there was "evidence" that Mr. Null had used drugs and that he was "lawfully arrested" for DUI. OAH further found that the trooper "requested ... [Mr. Null] submit to a blood draw" and that Mr. Null "agreed" and "did not initiate the blood draw ...." Nevertheless, OAH reversed the revocation, reasoning, based on our holdings in Reed v. Hall and Reed v. Divita , that the State violated Mr. Null's due process rights under West Virginia Code § 17C-5-9 (eff. 2013) when it deprived him of the opportunity to present potentially exculpatory evidence as a result of his blood sample.
235 W. Va. 322, 773 S.E.2d 666 (2015), abrogated by Frazier v. Talbert , 245 W. Va. 293, 858 S.E.2d 918 (2021). In Hall , we found that a driver "was denied ... statutory and due process rights, under West Virginia Code § 17C–5–9," when the police obtained a blood sample at the driver's request but failed to have it tested. Id. at 332-33, 773 S.E.2d at 676-77. We have since determined, however, that Hall was "incorrectly decided[.]" Talbert at 302, 858 S.E.2d at 927. In Talbert , the driver requested a blood test three times, but the investigating officer refused these requests due to a mistaken belief that blood tests were not permitted when the driver was accused of driving under the influence of alcohol (as opposed to controlled substances or drugs). Id. at 296-98, 858 S.E.2d at 921-22. There was, however, abundant evidence of intoxication that OAH refused to consider and, based on Hall , the OAH reversed the revocation and the circuit court affirmed. Id. at 295-98, 858 S.E.2d at 920-22. On appeal, we found that OAH and the circuit court erred by not "considering the other evidence that [the driver] was driving while under the influence of alcohol" and the fact that the investigating officer "acted under a misapprehension of the law and not in bad faith." Id. at 302, 858 S.E.2d at 927. We identified three factors that a trier of fact "must consider" when "a driver demands a blood test pursuant to West Virginia Code § 17C-5-9, but the [blood] test is never given, a chemical analysis of the blood that is withdrawn is never completed, or the blood test results are lost." Id. at 304, 858 S.E.2d at 929. We identified these factors to guide the trier of fact "in determining what consequences should flow from the absence of the blood test evidence under the particular facts of the case." Id. at 305, 858 S.E.2d at 929-30. Thus, an investigating officer's failure to obtain the results of a blood test requested by a driver pursuant to W. Va. Code § 17C-5-9 no longer leads automatically to a conclusion that the driver's license revocation must be reversed. Id. at 302-303, 858 S.E.2d at 927-28.
No. 14-1018, 2015 WL 5514209 (W. Va. Sept. 18, 2015) (memorandum decision), abrogated by Frazier v. Talbert , 245 W. Va. 293, 858 S.E.2d 918 (2021). In Divita , we found that an "investigating officer [who had a driver's blood sample destroyed] imposed a significant impediment to [the driver]’s ability to test the blood sample and violated her statutory and due process rights." Id. at *3-4. Divita applied West Virginia Code § 17C-5-9, noting that both the "respondent [driver] and the investigating officer requested a blood test ...." Id. at *3. Talbert found that Divita , like Hall , was "incorrectly decided[.]" Talbert at 302, 858 S.E.2d at 927 ; see supra note 3.
The Commissioner appealed to circuit court, and the circuit court affirmed OAH's decision. The circuit court stated that it was "hesitant to disregard the live testimony of an individual placed under oath in favor of a piece of paper[,]" and so the circuit court credited Mr. Null's testimony. However, the circuit court found that it did not matter who requested the blood test because our holding in Divita was not limited "to a mere determination regarding who requested the blood test." The circuit court reasoned that an investigating officer's request for a blood sample removes a driver's "impetus ... to ... request a blood draw" and assures the driver "that a blood draw will occur if [the driver] acquiesce[s]." The circuit court "decline[d] to hold that [a] driver's due process rights are contingent upon a race between the driver and the police officer to first request a blood draw and/or an analysis thereof." Accordingly, the circuit court agreed that Mr. Null's statutory and due process rights under West Virginia Code § 17C-5-9 were violated and found that the State's failure to test the blood sample (or make the sample available to Mr. Null for testing) "foreclosed" consideration of evidence that Mr. Null committed DUI. The Commissioner appeals from the circuit court's February 14, 2020 order.
Adam Holley was Acting Commissioner in September 2019 when DMV's petition for judicial review was filed in circuit court.
II. STANDARD OF REVIEW
In this appeal, the Commissioner challenges a circuit court order that affirms an administrative decision. We have held that
[o]n 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 [(g) (eff. 2021)] 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 (1996). West Virginia Code § 29A-5-4(g) (eff. 2021) requires a court to reverse, vacate, or modify an administrative agency's order or decision if a petitioner's substantial rights have been prejudiced because the agency's findings, inferences, conclusions, decision, or order (1) violates constitutional or statutory provisions; (2) exceeds the agency's statutory authority or jurisdiction; (3) was made upon unlawful procedures; (4) is affected by other error of law; (5) is clearly wrong in view of the reliable, probative, and substantial evidence on the whole record; or (6) is arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. See also Syl. Pt. 2, Shepherdstown Volunteer Fire Dep't v. State ex rel. State of W. Va. Hum. Rts. Comm'n , 172 W. Va. 627, 309 S.E.2d 342 (1983). With these standards of review in mind, we will consider the Commissioner's appeal.
The Legislature amended West Virginia Code § 29A-5-4 after the circuit court issued its decision below, but the amendments made only stylistic changes to the portions of the statute that are relevant to this appeal.
III. ANALYSIS
In this appeal, the Commissioner objects that the circuit court substituted its judgment for that of the factfinder, and showed an improper preference for testimonial evidence over documentary evidence, when it found that Mr. Null was the one who requested the blood test. According to the Commissioner, West Virginia Code § 17C-5-9 —which both OAH and the circuit court invoked in support of their decisions—does not apply unless the driver demands that his or her blood be drawn for testing. Mr. Null responds, however, that there is no practical difference between requesting a blood test and agreeing to a blood test and argues that a citizen's due process right should not "hinge on who won the race to ask for a blood test first." We agree with the Commissioner.
In an additional assignment of error, the Commissioner asks us to reverse our holdings in Hall and Divita , arguing that our "judicially created remedy" for violations of West Virginia Code § 17C-5-9 "thwarts the purpose of the administrative sanctions for DUI and lets impaired drivers avoid license revocations by excluding all relevant evidence of DUI." However, we have already determined that "Hall and Divita were incorrectly decided[.]" Talbert , 245 W. Va. at 302, 858 S.E.2d at 927.
A. OAH's findings of fact are entitled to deference.
As we have consistently held, "findings of fact by the administrative officer are accorded deference unless the reviewing court believes the findings to be clearly wrong." Muscatell at 590, 474 S.E.2d at 520, syl. pt. 1, in part. This rule flows logically from the statute, which provides that appeals in contested cases are to be decided "upon the record made before the agency" and that a circuit court may not receive testimony "except ... in cases of alleged irregularities in procedure before the agency[ ] not shown in the record ...." W. Va. Code § 29A-5-4(f). Indeed, by statute, a reviewing court may not reverse "administrative findings" unless they are "[c]learly wrong in view of the reliable, probative, and substantial evidence on the whole record[.]" W. Va. Code § 29A-5-4(g)(5) ; Syl. Pt. 1, in part, Antero Res. Corp. v. Steager , 244 W. Va. 81, 851 S.E.2d 527 (2020) (quoting Syl. Pt. 1, in part, Griffith v. ConAgra Brands, Inc. , 229 W. Va. 190, 728 S.E.2d 74 (2012) ) (stating that "[f]indings of fact of the administrative law judge will not be set aside or vacated unless clearly wrong").
In this case, OAH found that the trooper, not Mr. Null , requested the blood test, yet the circuit court accorded no deference to this finding. Rather, the circuit court observed that Mr. Null testified that he requested the blood draw, not the trooper , and the circuit court professed that it was "hesitant to disregard the live testimony of an individual placed under oath in favor of a piece of paper." Based upon this hesitation , the circuit court concluded that our decision in Hall —a case in which it was undisputed that the driver demanded the blood test —"is directly on point" and that Mr. Null's "due process rights under W. Va. Code § 17C-5-9" were denied. We disagree with the circuit court.
See Hall at 332, 773 S.E.2d at 676 ("The DMV contends that the burden of proceeding from blood sample to blood test is upon Mr. Hall because he requested the blood test. On the contrary, Mr. Hall argues that the statute creates a due process right to both demand and receive a blood test ...." (italics removed)). Even if Mr. Null had requested the blood test, which is contrary to the OAH findings, the circuit court's reliance on Hall is misplaced. As we have noted herein, this Court has determined that Hall was incorrectly decided. Talbert , 245 W. Va. at 302, 858 S.E.2d at 927.
Hesitation is not the same thing as a determination that OAH's finding was "[c]learly wrong in view of the reliable, probative, and substantial evidence on the whole record" as the statute and our caselaw require before a circuit court may reject an administrative finding of fact. W. Va. Code § 29A-5-4(g)(5) ; Muscatell at 590, 474 S.E.2d at 520, syl. pt. 1, in part. Furthermore, we agree that the circuit court's "hesitation" stemmed from an improper "preference for testimonial evidence over documentary evidence." Groves v. Cicchirillo , 225 W. Va. 474, 481, 694 S.E.2d 639, 646 (2010) (per curiam). As we have clearly held, the "law recognizes no such distinction in the context of drivers’ license revocation proceedings." Ibid. Indeed, unlike the circuit court, OAH had an opportunity to observe Mr. Null when he was testifying and evidently determined that his testimony on this issue—which directly contradicted the DUI Information Sheet—was less credible. As trier of fact, OAH had "exclusive" authority to determine Mr. Null's credibility, and the circuit court had no authority to review that credibility determination. State v. Guthrie , 194 W. Va. 657, 669 n.9, 461 S.E.2d 163, 175 n.9 (1995) ("An appellate court may not decide the credibility of witnesses or weigh evidence as that is the exclusive function and task of the trier of fact."). Accordingly, we find that the circuit court erred when it rejected OAH's finding that the trooper, and not Mr. Null, requested that Mr. Null's blood be drawn for testing. In addition, because we are bound by the standard of review set forth in West Virginia Code § 29A-5-4(g), and because we do not believe that OAH's finding that the trooper requested the blood test was clearly wrong, we assume that OAH's finding on this point is correct. Muscatell at 590, 474 S.E.2d at 520, syl. pt. 1, in part ("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 [(g)] ....").
B. Both OAH and the circuit court applied the wrong law.
Although we defer to OAH's finding that it was the trooper, and not Mr. Null, who requested the blood draw, we do not accord such deference to OAH's or the circuit court's conclusions of law, and we take particular exception to the circuit court's conclusion that it does not matter who requested the blood test. Muscatell at 590, 474 S.E.2d at 520, syl. pt. 1, in part.
West Virginia Code § 17C-5-6 (eff. 2013) provides that certain medical professionals, "acting at the request and direction of the law-enforcement officer , may withdraw blood to determine ... the concentration in the blood of a controlled substance, drug, or any combination thereof" and provides for an additional "chemical test" at the driver's expense and by a medical professional of his or her choice, if the driver so wishes. W. Va. Code § 17C-5-6 (emphasis added). By contrast, West Virginia Code § 17C-5-9 provides that "[a]ny person lawfully arrested for driving a motor vehicle in this state while under the influence of ... controlled substances or drugs" has a "right to demand that ... a sample or specimen of his or her blood or breath [be taken] to determine the controlled substance or drug content of his or her blood ... and that a chemical test thereof be made." W. Va. Code § 17C-5-9 (emphasis added). Thus, Section 6 pertains to blood samples requested, in the first instance, by an investigating officer ; Section 9 pertains to blood samples requested by a driver. Accordingly, we have held that when a "blood draw was performed at the request of law enforcement officers, the provisions of West Virginia Code § 17C-5-6 (2013), rather than West Virginia Code § 17C-5-9, apply." Frazier v. Bragg , 244 W. Va. 40, 46, 851 S.E.2d 486, 492 (2020).
As noted above, we defer to OAH's finding that the trooper, and not Mr. Null, requested the blood draw; therefore, we agree that both OAH and the circuit court erred when they concluded that the destruction of Mr. Null's blood, without testing, violated his rights under West Virginia Code § 17C-5-9. Indeed, as we stated in Bragg , "[b]ecause West Virginia Code § 17C-5-6 clearly applies to the facts of this case, the OAH and circuit court's reliance on West Virginia Code § 17C-5-9 and the caselaw construing it, was misplaced and ... unnecessarily complicated the question of whether the officer[’s] failure to test Mr. [Null]’s blood sample or make it available to him to conduct additional testing violated Mr. [Null]’s rights and warranted reversal of the revocation order." Id. at 46, 851 S.E.2d at 492.
Had the circuit court correctly applied the provisions of West Virginia Code § 17C-5-6, it is clear that such statute affords no relief to Mr. Null. The statute provides that "[u ]pon the request of the person who is tested , full information concerning the test taken at the direction of the law-enforcement officer shall be made available to him or her." Ibid. (emphasis added). As noted above, the statute also authorizes certain medical professionals to "administer" a second "chemical test" at the driver's expense. Ibid. However, there is no evidence that Mr. Null ever requested any information regarding the test to be performed on his blood sample and no evidence that he ever requested an opportunity to perform his own test. See Bragg at 48, 851 S.E.2d at 494 ("Aside from marking the box on the hearing request form that he ‘wish[ed] to challenge the results of the secondary chemical test of the blood, breath or urine[,]’ it is undisputed that at no time did Mr. Bragg request any information concerning the blood withdrawn at the direction of Troopers Miller and Williamson either for the purpose of having the sample independently tested ... or for use otherwise at the administrative hearing."). Without such requests, "[t]he absence of blood evidence, while acknowledged and explained at the administrative hearing, was simply not at issue in this case[,]" ibid. , and it was error for OAH and the circuit court to conclude otherwise and find that the destruction of his blood sample, without testing, violated his right to due process.
C. Reversing Mr. Null's revocation was error.
Because we find no due process violation, we turn to the question of whether the Commissioner proved that Mr. Null was driving under the influence of controlled substances or drugs when he was stopped for speeding. This was, after all, the "principal question at the hearing" before OAH, W. Va. Code § 17C-5A-2(e) (eff. 2015), and "[t]he absence of a chemical test does not foreclose proof by other means of intoxication as a ground for license revocation[,]" Boley v. Cline , 193 W. Va. 311, 314, 456 S.E.2d 38, 41 (1995) (per curiam). Indeed, "[t]here are no provisions in either W.Va.Code, 17C–5–1, et seq. , or W.Va.Code, 17C–5A–1, et seq. , that require the administration of a chemical sobriety test in order to prove that a motorist was driving under the influence of alcohol, controlled substances or drugs for purposes of making an administrative revocation of his or her driver's license." Syl. Pt. 4, Coll v. Cline , 202 W. Va. 599, 505 S.E.2d 662 (1998).
On the contrary, we have held that
" ‘[w]here there is evidence reflecting that [1] a driver was operating a motor vehicle upon a public street or highway, [2] exhibited symptoms of intoxication, and [3] had consumed alcoholic beverages, this is sufficient proof under a preponderance of the evidence standard to warrant the administrative revocation of his driver's license for driving under the influence of alcohol.’ Syl. Pt. 2, Albrecht v. State, 173 W.Va. 268, 314 S.E.2d 859 (1984)." Syl. Pt. 5, Reed v. Hill , 235 W. Va. 1, 770 S.E.2d 501 (2015).
Bragg , 244 W. Va. at 49, 851 S.E.2d at 487, syl. pt. 6 (emphasis added). Clearly, OAH made express findings on each of these issues by a preponderance of the evidence. First , OAH found that "Petitioner was traveling ten (10) miles over the posted speed limit" on Route 60 in Kanawha County, West Virginia. Second , OAH found that Petitioner exhibited numerous signs of intoxication, including "bloodshot eyes," an "unsteady" gait, and unsatisfactory performance on "the administered field sobriety tests." Third , OAH found that Mr. Null admitted to smoking a bowl of marijuana. In light of these findings, we conclude that Mr. Null was driving under the influence of controlled substances or drugs on May 26, 2014, and, accordingly, conclude that the circuit court erred in affirming OAH's final order that overturned the Commissioner's revocation order.
OAH made the following particular findings: (a) that during the horizontal gaze nystagmus test, Mr. Null's eyes "showed a lack of smooth pursuit, exhibited distinct nystagmus at maximum deviation[,] and displayed the onset of nystagmus prior to an angle of forty-five (45) degrees"; (b) that during the walk-and-turn test, he "stepped off the line of walk, made an improper turn, raised his arms for balance, and took an incorrect number of steps"; and (c) that during the one-leg-stand test, Mr. Null "swayed, used his arms to balance, hopped, and was unable to keep his raised foot off the ground."
IV. CONCLUSION
Based on the foregoing, we reverse the circuit court's February 14, 2020 order and remand this case to the circuit court for reinstatement of the Commissioner's order administratively revoking Mr. Null's driver's license.
Reversed and Remanded with Directions.
JUSTICE WOOTON dissents and reserves the right to file a separate Opinion.
JUSTICE ALAN D. MOATS, sitting by temporary assignment, not participating.
WOOTON, J., dissenting:
By remanding to the circuit court and directing that respondent's driver's license revocation be reinstituted, the majority exceeds its statutory authority for review of administrative proceedings and ignores decades of our civil license revocation jurisprudence—all because it lacks a procedurally sustainable method for remanding this action. In this case the Office of Administrative Hearings (hereinafter "OAH") did not reach the ultimate issue—whether respondent was driving under the influence ("DUI")—because it believed the DMV could not legally prevail due to the destruction of the blood test results. Therefore, the OAH did not so much as dignify, much less resolve, a material dispute in the evidence, or determine whether respondent was DUI. For decades this Court has found this failure to resolve credibility issues and/or reach the ultimate issue of DUI to be reversible error necessitating remand for resolution of such disputes. However, because the OAH has been disbanded, the majority culls the record for evidence of DUI and adjudicates this matter itself —without statutory or other authority to do so. Accordingly, I respectfully dissent.
On appeal of the OAH's ruling, the circuit court recognized and discussed the conflict in the evidence; however, because it agreed with OAH's legal conclusion that the absence of test results was dispositive, it did not address the OAH's failure to resolve the credibility issue or determine whether respondent was DUI.
In the instant case the only evidence presented at the administrative hearing regarding respondent's driver's license revocation was the DUI Information Sheet and the live testimony of respondent Douglas Null; the investigating officer did not appear. Counsel for DMV proffered that a blood sample was discarded upon dismissal of the criminal proceedings before any drug testing could be performed. As to the blood test, the DUI Information Sheet indicated that the "request for a blood sample [was] directed by the arresting officer" and that the "suspect [did not] request blood sample[.]" However, during his testimony respondent expressly contradicted this information and testified he requested the blood test, not the officer:
Q. And did you, in fact, request a blood test?
A. Absolutely.
Respondent elaborated, "... I absolutely wanted a blood test, because it was going to prove my innocence." This conflicting testimony became immaterial to the OAH, however, because it concluded that, regardless of who requested the blood test, the absence of results prejudiced respondent's due process rights and required reversal of the revocation order. Accordingly, the OAH never 1) resolved the credibility issue as to who requested the test; or 2) made a determination as to whether respondent was DUI. The former controls the remedy, if any, afforded due to the absence of test results, and the latter is, quite plainly, the entire purpose of the proceeding.
Instead, after a recitation of "findings of fact" derived exclusively from the DUI Information Sheet—and without any reference whatsoever to respondent's testimony, as discussed infra —the OAH embarked upon a "discussion" of our caselaw where blood testing results were not made available to the driver. Under "conclusions of law," the hearing examiner stated that "it is the position of the Chief Hearing Examiner" that "individuals who voluntarily submit to a blood sample at the request of the Investigating Officer should be afforded the same due process as those who demand a blood test[.]" As a result, the hearing examiner concluded that failure to provide respondent with his blood test results was a denial of his "statutory and due process rights" and reversed the revocation order. Believing it to be legally foreclosed from doing so, at no point in the "discussion" or "conclusions of law" did the OAH remotely conclude that respondent was, in fact, DUI.
Regardless, the majority highlights items in the "checked" boxes in the OAH's final order which found that the officer "had reasonable grounds to believe" respondent was DUI, that respondent was "lawfully arrested," and that there was "evidence" of the use of alcohol or drugs—each of which is a statutorily required preliminary finding before proceeding to the ultimate issue. See W. Va. Code § 17C-5A-2(f) (2015). However, none of these findings is a substitute for the ultimate question to be determined: whether the driver was, in fact, DUI. "The principal question at the [administrative revocation] hearing shall be whether the person did drive a motor vehicle while under the influence of alcohol, controlled substances or drugs[.]" W. Va. Code § 17C-5A-2 ; see also Carte v. Cline , 194 W. Va. 233, 238, 460 S.E.2d 48, 53 (1995) ("The obvious and most critical inquiry in a license revocation proceeding is whether the person charged with DUI was actually legally intoxicated." (footnote omitted)).
This finding is not merely perfunctory, particularly where a driver disputes that he or she was DUI and provides testimony contesting the content of the DUI Information Sheet, just as occurred in the instant case. The administrative hearing process is not designed to be a mere "rubber stamp" of an officer's DUI paperwork: "The purpose of these rules is not to burden an administrative agency with proving or recording the obvious. The purpose is to allow a reviewing court (and the public) to ascertain that the critical issues before the agency have indeed been considered and weighed and not overlooked or concealed." Muscatell v. Cline , 196 W. Va. 588, 598, 474 S.E.2d 518, 528 (1996).
To circumvent the absence of a finding on the ultimate issue, the majority cites these "express findings" regarding reasonable suspicion and lawful arrest to create the appearance that it is merely affirming a conclusion reached by the OAH. Recognizing of course it cannot affirm a ruling never reached, the majority tellingly states that, based upon certain facts in the OAH order, "we conclude that Mr. Null was driving under the influence of controlled substances or drugs[.]" (Emphasis added).
Judicial review of administrative cases is strictly limited by statute. At the circuit court level, appeal of an administrative agency's final order is taken "upon the record made before the agency" and reversal or vacation may only be made upon certain conditions, none of which permit the circuit court to hear the matter anew. See W. Va. Code §§ 29A-5-4(f), - 4(g). This Court is similarly constrained:
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.
Muscatell, 196 W. Va. 588, 474 S.E.2d 518, syl. pt. 1 (emphasis added). Nothing in our system of administrative law permits this Court to determine, in the first instance , whether a driver was DUI. Yet the majority does precisely that: cherry-picks the scant record for "evidence" suggesting that respondent was DUI and adjudicates the matter itself.
I have previously expressed my staunch disagreement with our caselaw indicating that a driver has no automatic entitlement to blood test results if the officer requests the test, and with our decisions holding that even if the driver requests the test, failure to provide results is not necessarily dispositive of the case. Under our law as it presently exists, the OAH and circuit court erred in concluding that regardless of who requested the blood test, the revocation must be reversed due to the absence of results. Under our presently constituted law, if a driver requests the testing, the consequences of failure to provide those results are governed by a multi-factorial test to be applied by the finder of fact. See Talbert , 245 W. Va. 293, 858 S.E.2d 918, syl. pt. 6. If the officer requests the testing and the driver does not specifically request the results, the failure to provide the results is of no consequence. See Syl. Pt. 4, Frazier v. Bragg, 244 W. Va. 40, 851 S.E.2d 486 (2020).
See Frazier v. Goodson , No. 20-0236, 2021 WL 1821454, at *4 (W. Va. May 6, 2021) (memorandum decision) (Wooton, J., dissenting); Frazier v. Talbert , 245 W. Va. 293, 305, 858 S.E.2d 918, 930 (2021) (Wooton, J., dissenting).
Therefore, the initial issue which must be determined at the administrative level when testing results are not available is who requested the test. While the majority correctly notes that the OAH ostensibly credited the officer with requesting the test, it is patently incorrect that the OAH "evidently determined that [respondent's] testimony on this issue ... was less credible." In fact, the OAH did not reference respondent's testimony at all, much less weigh in on the relative credibility of respondent and the DUI Information Sheet. This is well-established reversible error:
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.
Muscatell , 196 W. Va. 588, 474 S.E.2d 518, syl. pt. 6 (emphasis added).
The Muscatell Court correctly determined that in its proper appellate role, it could not rule on the merits of the case where there was a "direct conflict in [the investigating officer's] critical testimony, for which we have before us no explanation or evaluation by the hearing examiner or the Commissioner." Id. at 598, 474 S.E.2d at 528. The Court explained:
Nothing in the findings of fact of the Commissioner advises this Court why the Commissioner resolved this conflict in the testimony of the trooper in favor of the direct testimony and disregarded the cross-examination. We have no separate evaluation of the evidence by the hearing examiner who observed the demeanor of the witness on this critical issue before us. We have said, with respect to decisions of administrative agencies following from findings of fact and conclusions of law proposed by opposing parties, that the agency must rule on the issues raised by the opposing parties with sufficient clarity to assure a reviewing court that all those findings have been considered and dealt with, not overlooked or concealed. We have also said that in requiring an order by an agency in a contested case to be accompanied by findings of fact and conclusions of law, "the law contemplates a reasoned, articulate decision which sets forth the underlying evidentiary facts which lead the agency to its conclusion...." .... Indeed, a reviewing court cannot accord to agency findings the deference to which they are entitled unless such attention is given to at least the critical facts upon which the agency has acted.
Id. at 598, 474 S.E.2d at 528 (citations omitted); see also White v. Miller , 228 W. Va. 797, 812, 724 S.E.2d 768, 783 (2012) (Workman, J., concurring in part and dissenting in part) ("To the extent that the Commissioner did not find the petitioner's attacks on the subjective evidence persuasive or credible, he was obligated under our caselaw to offer a ‘reasoned and articulate’ resolution of those issues and explain the choices he made with respect to the evidence."); Choma v. W. Va. Div. of Motor Vehicles , 210 W. Va. 256, 259, 557 S.E.2d 310, 313 (2001), overruled on other grounds by Miller v. Epling , 229 W. Va. 574, 729 S.E.2d 896 (2012) ("[T]he Commissioner's decision cannot arbitrarily disregard ... contradictory evidence.").
Cf. Dale v. Veltri , 230 W. Va. 598, 604, 741 S.E.2d 823, 829 (2013) (finding no Muscatell violation where final order "clearly identified the conflict between the DUI Information Sheet and the testimony of [the driver]" and "subsequently resolved that conflict by explaining" that although driver disputed officer's testimony, he failed to adequately explain his blood alcohol concentration or manner of driving).
The only remedy available to this Court for such an error is equally well-established: reversal and remand to the circuit court with directions to remand to the OAH for this credibility-intensive factual issue to be resolved. See Muscatell , 196 W. Va. at 598-99, 474 S.E.2d at 528-29 (reversing and remanding to circuit court with directions to remand to administrative agency to resolve unaddressed conflicts in evidence); see also Clarke v. W. Va. Bd. of Regents , 166 W. Va. 702, 716-17, 279 S.E.2d 169, 178-79 (1981) ("Remanding the cause with directions that the conclusions of the hearing examiner be supported with reasons and evidence has been the relief employed in other circumstances involving inadequate findings by administrative agencies."). Upon resolution of the factual conflict regarding who requested the test, application of the appropriate resulting legal standard may then ensue.
Not only has reversal and remand for resolution of unaddressed conflicts in evidence been the required remedy for decades, but it has also more specifically been this Court's exclusive remedy when blood testing issues of precisely this type have preempted the OAH from reaching the ultimate issue of DUI. In fact, the very case upon which the majority relies in concluding that the absence of blood testing results was of no consequence in this matter states as much. In Bragg , the Court held that where the officer requests blood testing and the driver fails to request those results, the absence of such results is "simply not at issue" and provides no relief to a driver. 244 W. Va. at 48, 851 S.E.2d at 494. Notably, the OAH in Bragg had made a ruling identical to the one in the instant case, i.e. that the absence of blood testing results was a deprivation of due process rights and therefore did not reach the issue of DUI. Id. at 49, 851 S.E.2d at 495. The required remedy as identified by this Court was remand for determination of the ultimate issue of DUI:
In Bragg, the wording of OAH's conclusion was nearly identical to that contained in the order in this case: " ‘The Investigating Officer's failure to test blood or to make blood evidence available to [Mr. Bragg] for further testing denied Mr. Bragg[ ] [his] statutory due process rights under W. Va. Code § 17C-5-9 and is grounds for reversal of the [Commissioner's] Order of Revocation[.]’ " Bragg , 244 W. Va. at 44, 851 S.E.2d at 490.
Having concluded that the OAH erred in reversing the order of revocation based exclusively upon the fact that the blood sample withdrawn from Mr. Bragg was not tested or made available to him for independent testing, and because the OAH failed to otherwise evaluate the evidence of record, we remand this case for a determination of whether there was sufficient proof under a preponderance of the evidence standard to warrant the administrative revocation of Mr. Bragg's driver's license for driving under the influence of alcohol, controlled substances and/or drugs.
Id. (emphasis added). Not surprisingly, this has unfailingly been the required remedy of this Court in the litany of subsequent cases where, just as in the instant case, the OAH fails to make the ultimate determination of whether the driver was DUI because it believed the absence of blood testing results to be dispositive. See Frazier v. Workman , No. 20-0035, 2021 WL 653201, at *3 (W. Va. Feb. 19, 2021) (memorandum decision) ("Having determined that the circuit court erred in affirming the OAH's order reversing the revocation of respondent's license based only on the fact that respondent's blood sample was not tested, and because the OAH failed to otherwise evaluate the evidence of record, we remand this case for a determination of whether there was sufficient proof under the preponderance of the evidence standard to warrant the administrative revocation of respondent's driver's license.").
See also Frazier v. Gilbert , No. 20-0310, 2021 WL 2581707, at *4 (W. Va. June 23, 2021) (memorandum decision); Frazier v. Parker , No. 20-0790, 2021 WL 2581718, at *3 (W. Va. June 23, 2021) (memorandum decision); Frazier v. Murphy , No. 20-0092, 2021 WL 1821456, at *3 (W. Va. May 6, 2021) (memorandum decision); Goodson , 2021 WL 1821454, at *3 ; Frazier v. Fazio , No. 20-0102, 2021 WL 1821450, at *3 (W. Va. May 6, 2021) (memorandum decision); Frazier v. Fowler , No. 20-0076, 2021 WL 1110376, at *3 (W. Va. Mar. 23, 2021) (memorandum decision); Frazier v. Bowman , No. 20-0034, 2021 WL 1110372, at *4 (W. Va. Mar. 23, 2021) (memorandum decision); Frazier v. Agin , No. 20-0038, 2021 WL 1110653, at *3 (W. Va. Mar. 23, 2021) (memorandum decision).
It is readily apparent that the majority treats the instant matter differently than our long line of precedents due to practical considerations: the OAH no longer exists and is therefore unavailable for remand. As footnoted by the majority, the OAH was disbanded by operation of West Virginia Code § 17C-5C-1a(d) (2020) as of July 1, 2021. In anticipation of the logistical issue presented by this dissolution as to cases requiring remand, the Court required supplemental briefing by the parties in this case on that very issue. Apparently unsatisfied with the parties’ respective offerings on that front, the majority neither resolves the issue nor mentions it in its opinion. Instead, it avoids the issue altogether by taking on the role of the now-defunct OAH and adjudicating the DUI revocation itself. It does so because the dissolution of the OAH leads to the inescapable conclusion that matters presently on appeal which require remand must simply be dismissed. In that regard, DMV concedes that certain administrative DUI revocation cases, such as the instant case, which were not "before" the OAH as of its termination but pending on appeal either in circuit court or before this Court, are not addressed in West Virginia Code § 17C-5C-1a. It further concedes that these particular types of administrative DUI revocation cases were not transferred to circuit court. DMV takes the position that as a "gap-filling" measure, DMV may hear cases requiring remand and perform any evidentiary fact-finding necessary, just as it did prior to 2010 and the creation of OAH. With respect to cases pending appeal but requiring remand for further proceedings at the time OAH terminated, the legislature's intention may not be readily apparent, but it defies logic to suggest that the intention was for the DMV to hear those cases. Such a suggestion is contrary to express legislative intention going back to 2010, when it stripped DMV of that authority by creating an entirely new entity to adjudicate such administrative revocations. Even the majority, in an opinion crafted to yield the result sought by the DMV, did not embrace that suggestion. Instead, the majority broke new ground and for the first time established the Supreme Court of Appeals as a fact-finding entity.
In contrast to the Legislature's silence as to administrative revocation appeals such as the case at bar, it directed other license revocation appeals to be "transferred to the circuit court for the circuit in which the event giving rise to the contested decision of the Commissioner of the Division of Motor Vehicles occurred." W. Va. Code §§ 17C-5C-1a(b), -1a(c)(2). Those appeals, however, do not include the type of administrative revocation at issue in the instant case, which was a revocation pursuant to West Virginia Code § 17C-5C-3(3) ; these appeals were expressly exempted from the transfer to circuit court. See id. 17C-5C-1a(b), -1a(c)(2) (transferring jurisdiction over "appeals described in § 17C-5C-3 of this code, except for those described in § 17C-5C-3(3) " (emphasis added)).
DMV maintains that administrative revocations remain, effectively, "contested cases" under the Administrative Procedures Act and may be handled by the agency as such. It points specifically to the administrative hearing procedures outlined in West Virginia Code of State Rules § 91-1-3 and asserts that it may hear the cases pursuant to those rules.
However, DMV points to absolutely no statutory authority currently granted to it to hear appeals of these type of administrative drivers’ license revocations. The Legislature plainly sought to strip DMV of authority to hear these matters in 2010 with the creation of the OAH. Significantly, when the Legislature dissolved the OAH in 2020, it did not return these matters to the DMV for handling as before, but rather rolled them into the criminal process. There simply is no longer an administrative process for these type of DUI license revocations. Moreover, the mere existence of the APA does not equate to statutory authority to hear these cases. The APA is simply a process—it is not a grant of legislative authority to exercise jurisdiction particularly where matters were specifically carved out of that process through the enactment of the now-defunct statutory administrative revocation procedure.
More importantly, there is no indication the Legislature intended these revocations to revert to a run-of-the-mill "contested case" administrative process—quite the contrary. Since 2010, the Legislature appears to have been attempting to create greater separation between DMV and the adjudication of administrative DUI revocations. As such, DMV asks this Court to create an adjudicatory process out of thin air—a process expressly abrogated in 2010 by the Legislature.
Although the statute does not expressly authorize dismissal of pending appeals requiring remand, there simply is no other recourse for cases which now require additional fact-finding or further proceedings by OAH. Importantly, however, this recourse is entirely consistent with the Legislature's stated appetite for dismissal of certain of these cases. The statute terminating the OAH provides that any matter pending before it as of July 1, 2021 "shall be dismissed." Id. § 17C-5C-1a(c)(1) ("If any appeal of a revocation or suspension order, described in § 17C-5C-3(3) of this code, is pending before the [OAH] on or after July 1, 2021, the underlying revocation or suspension order shall be dismissed.") This demonstrates that the Legislature understood the potential for certain "unfinished business" to simply be dismissed, including revocations which may well have been meritorious, but which simply outlived the administrative process in place to handle them. A case on remand following appeal is no more or less "unfinished" than the cases the Legislature expressly authorized to be dismissed if pending before the OAH at the time of its dissolution.
The majority's reluctance to dismiss what it believes to be meritorious DUI revocations is understandable, but this reluctance does not grant it authority to fact-find and adjudicate these matters. The majority pretends that a credibility determination was made on a disputed material issue—all without evidence that the dispute was even recognized or considered by the OAH. It then cobbles together disputed "facts" that similarly fail to acknowledge respondent's countervailing testimony to make a factual determination that does not exist in the record and this Court simply is not authorized to make. Accordingly, I respectfully dissent.