W. Va. Code R. § 105-1-10
Current through Register Vol. XLI, No. 49, December 6, 2024
Section 105-1-10 - Pre-Hearing Notifications10.1. Jurisdictional Limits. -- If the respondent contends that a written objection was untimely filed, respondent shall file evidence of such untimeliness with the OAH, with service upon the Petitioner, or Petitioner's Counsel, without delay upon discovery of the same.10.2. Challenge of Secondary Chemical Test and Sobriety Checkpoint.a. Any petitioner requesting a hearing in a DUI case who intends to challenge the results of a secondary chemical test of the blood, breath or urine, intends to challenge the chemical analysis, or intends to challenge official compliance with and adherence to a sobriety checkpoint or its operational guidelines shall notify the OAH of his or her intent. The petitioner shall file the notification of any such type or types of challenges being made with the OAH, with service to the respondent, at least ten (10) days prior to the hearing date or those matters may not be challenged.b. If a petitioner fails to comply with the ten (10) day notice requirement of subdivision 10.2.a. pertaining to the secondary chemical test, the results of the test, if any, will be admissible as though the petitioner and the respondent had stipulated to the admissibility of such test results.c. If a petitioner fails to comply with the ten (10) day notice requirement of subdivision 10.2.a. pertaining to challenging official compliance with and adherence to a sobriety checkpoint or its operational guidelines, any challenge shall be deemed as being waived.10.3. Experts. -- Parties shall file a notice of intent to present expert testimony at a hearing with the OAH, with service to the other party, at least twenty (20) days prior to the hearing date. Such notice shall include the name of the expert, his or her area of expertise, and a summary of the anticipated testimony of such expert. Failure to file or serve the required expert notification may result in exclusion of the expert witness, limitation on the expert's testimony, or continuance of the hearing, as the interests of justice require.10.4. Appearance. -- If a party wishes to testify by telephone or video-conference or for his or her witness to testify by telephone or video-conference, instead of testifying in person or by evidentiary deposition, such party shall file a motion seeking such permission at least ten (10) days prior to the hearing date. The party making the motion is responsible for ensuring that the technology is available at the hearing location to accommodate the request. A party wishing to file a response to such motion shall do so at least five (5) days prior to the hearing date. Unless the OAH grants such a motion, a witness is required to appear in person at the hearing in order to testify.10.5. Stipulations. -- Parties shall make a reasonable and good faith effort to agree to a stipulation of relevant, undisputed facts prior to the hearing so as to avoid the necessity for the introduction of evidence at the hearing.10.6. Case resolution. -- Parties, or their legal counsel, if represented, shall inform the OAH immediately of a deferral, plea, conviction, rescission, withdrawal of written objections, or other matter that terminates the need for a hearing in a DUI case or other contested case. Parties are obligated to appear at a scheduled hearing unless they receive a written order from the OAH prior to the hearing that cancels or continues such hearing.10.7. Amendment of Order of Revocation. a. The issuance of an Amended Order of Revocation by the Respondent, arising out of the same underlying offense, shall not be cause to dismiss the pending matter.b. The issuance of an Amended Order of Revocation by the Respondent shall be grounds for the granting of a Motion to Continue so long as the time frames and procedures set forth by subsections 5.2. and 9.3. of this rule are followed by the party requesting the continuance.10.8. Blood Draw and Blood Analysis Affidavits. - In the event a party wishes to submit blood draw and blood analysis evidence, he or she may do so by submitting the affidavit of the person or persons who drew the blood and person or persons who analyzed the blood for evidence of alcohol, controlled substances or drug content: Provided, That, a party is required to provide notice of such evidence at least ten (10) days prior to the hearing date to the opposing party. In the event the opposing party, upon receiving such notice, wishes to cross examine such person or persons who drew blood or analyzed blood, it shall be incumbent upon such opposing party to subpoena the person or persons to testify at the administrative hearing: Provided, further, That, any person so subpoenaed, shall be allowed to testify by telephone.10.9. Contents and Requirements of Blood Draw and Blood Analysis Affidavits. a. In the case of blood draw affidavits, the affidavit shall contain the name of the person who drew the blood sample, the person's job description or title, the name and address of his or her employer, the date and time the blood sample was drawn, the place where the blood sample was drawn, the name of the person whose blood was drawn including the person's birthdate and place of residence, and the place to which - or the person to whom, the sample was delivered, including the date of the delivery.b. In the case of blood analysis, the affidavit shall contain the name of the person who analyzed the blood sample, the person's job description or title, the name and address of his or her employer, the date and time the blood sample was analyzed, the place where it was analyzed, the name of the person whose blood was analyzed including the person's birthdate and place of residence, and the place in which the blood sample was stored following analysis.c. Any affidavit submitted under this Rule shall be in the form of a written or printed declaration, made voluntarily and confirmed by oath or affirmation of the person making it, and given before a person having authority to administer oaths and affirmations.W. Va. Code R. § 105-1-10