Frazier, DMV Commissioner v. Miller ( 2021 )

STATE OF WEST VIRGINIA FILED
SUPREME COURT OF APPEALS May 20, 2021
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Everett Frazier,
Commissioner of the West Virginia Division of Motor Vehicles,
Respondent Below, Petitioner
vs.) No. 20-0745 (Kanawha County 19-AA-51)
David Miller Jr.,
Petitioner Below, Respondent
MEMORANDUM DECISION
Petitioner Everett Frazier, Commissioner of the West Virginia Division of Motor Vehicles
(“DMV”), by counsel Janet E. James, appeals the order of the Circuit Court of Kanawha County,
entered August 21, 2020, which reversed the order of the Office of Administrative Hearings and
reinstated the driving privileges of respondent David Miller Jr. Respondent appears by counsel
David Pence.
The Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. This case satisfies the “limited circumstances” requirement of Rule 21(d) of the
West Virginia Rules of Appellate Procedure and is appropriate for a memorandum decision rather
than an opinion. For the reasons expressed below, the decision of the circuit court is reversed and
this case is remanded to the circuit court for entry of an order consistent with this decision.
Respondent was arrested for driving under the influence of controlled substances (“DUI”)
pursuant to West Virginia Code § 17C-5-2. Petitioner was alleged to have committed that offense
on May 15, 2012. 1 Following this arrest, the Division of Motor Vehicles (“DMV”) sent respondent
an order of revocation dated June 13, 2012, which revoked his driver’s license for the offense of
driving a motor vehicle while under the influence of alcohol, controlled substances, or drugs and
refusing to submit to the secondary chemical test of the breath (“refusal”). Respondent requested
a hearing on the revocation of his license.
1
Inasmuch as we are reversing and remanding this case to the circuit court for further
proceedings on grounds that do not relate to the circumstances surrounding respondent’s traffic
stop, they are not addressed in detail herein.
1
The Office of Administrative Hearings (“OAH”) conducted an evidentiary hearing on
September 4, 2015. 2 Neither party subpoenaed the investigating officer. Over respondent’s
objection, petitioner admitted into evidence its agency documents, which included respondent’s
DUI information sheet, the Intoximeter Print Out Ticket, and the implied consent statement. After
presenting these documents, petitioner rested its case without calling any witnesses.
Also at the hearing, respondent testified on his own behalf and he called two witnesses, his
mother and father. Respondent testified that he did not consume alcohol prior to operating the
motor vehicle on the day of his arrest and he denied being impaired at the time of the accident
leading up to his arrest. Respondent also testified that he did not refuse a secondary chemical test.
Respondent’s mother testified that she arrived at the scene of the accident while respondent was
in the back of an ambulance. Ms. Miller testified that it appeared that a beer can had exploded in
the vehicle during the accident and respondent did not have the smell of alcohol on his breath when
she arrived at the scene. Respondent’s father testified that he had been at the family farm with
respondent in Cross Lanes shortly before the accident, that he may have left beer in the vehicle,
and that the vehicle had been driven by multiple members of the family. The OAH ultimately
entered a final order on April 29, 2019, which modified the DMV Commissioner’s Order of
Revocation. Specifically, the OAH’s final order affirmed the DMV’s order of revocation for a
violation of West Virginia Code §17C-5-2 and reversed the DMV’s order of revocation for
refusing to submit to a secondary chemical test based upon the testimony provided by respondent. 3
On May 13, 2019, respondent appealed the matter to the Circuit Court of Kanawha County.
The circuit court reversed the OAH’s final order, finding that, after the creation of the OAH in
2010, “the ‘agency’ for administrative license revocation proceedings is the Office of
Administrative Hearings, not [petitioner].” Related to this finding, the circuit court found that
“[t]he OAH conflates the definition of ‘agency’ and ‘party’ in the West Virginia
Administrative Procedures Act (APA) to reach the unintended result that
[petitioner] is both the ‘agency’ and the ‘party’ to the litigation. Having been
deemed both the ‘agency’ and the ‘party’ by the OAH, [petitioner] was permitted
to move [its] file into evidence despite respondent being denied his request to
confront Officer Billy Helmbright.”
2
A hearing was initially scheduled for November 8, 2013, but it was continued after the
officer who had been subpoenaed by petitioner failed to appear. Following this continuance, there
were several more continuances requested by the parties.
3
Respondent testified before the OAH that he did not refuse to provide a secondary breath
sample and the OAH ultimately reversed the DMV’s order of revocation that was premised upon
respondent’s refusal to submit for a secondary chemical test. Although the order that is presently
on appeal reversed the OAH’s final order, and dismissed this matter, the circuit court’s order is
not clear as it relates to the refusal issue. Accordingly, we would request that the circuit court
clarify its ruling as to the refusal issue in light of this opinion.
2
As a result, the circuit court found that “the OAH improperly allowed [petitioner] to move all
documents in [its] file into evidence absent compliance with the West Virginia Rules of Evidence
or production of the author of those documents for cross-examination after [respondent] testified
and produced witnesses.” Although the circuit court acknowledged that the OAH has broad
discretion to admit or deny evidence, it found that the OAH is nevertheless “bound by the West
Virginia Rules of Evidence when making a ruling on the relevance and admissibility of evidence
presented by either side at revocation hearings.” The circuit court further ruled that “[respondent]
suffered actual and substantial prejudice as a result of Officer Billy Helmbright’s absence” where
“[respondent] denied the allegations against him contained in Officer Billy Helmbright’s reports
and produced witnesses in support of his testimony.” 4 Thus, the circuit court reasoned that “[a]
significant conflict of evidence exists in the case and [respondent] was denied his ability to
confront his accusers to his detriment.”
Petitioner filed this appeal challenging the circuit court’s August 21, 2020, order. On
appeal, petitioner raises three assignments of error. First, petitioner argues that the circuit court
erred when it found that respondent was deprived of the right to due process of law to confront his
accuser. Next, petitioner maintains that the circuit court erred when it found that the OAH
improperly allowed the DMV agency file into evidence. Finally, petitioner claims that the circuit
court erred when it ruled that the “agency” for administrative license revocation proceedings is the
OAH and not the DMV. We address these assignments below.
In Frazier v. Fouch, __ W. Va. __, 853 S.E.2d 587 (2020), we reiterated the standard of
review that governs this matter.
“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(1996).
“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.” Syl. Pt. 2, Muscatell v. Cline, 196
W. Va. 588, 474 S.E.2d 518 (1996).
Syl. Pts. 1 and 2, Fouch. Guided by this standard, we review petitioner’s arguments.
Petitioner argues that the circuit court erred when it found that respondent was deprived of
the right of due process of law to confront his accuser. As a related assignment of error, petitioner
also claims that the circuit court erred when it found that the OAH improperly allowed the DMV
4
Respondent denied being offered field sobriety tests because he was in the back of an
ambulance while on the roadside. He also denied consuming alcohol and explained the odor of
alcohol was a result of alcohol that was left in his parent’s vehicle that exploded during the crash.
3
file into evidence without complying with the West Virginia Rules of Evidence or providing
testimony from the responding officer. Petitioner maintains that the West Virginia Code
specifically provides that the DMV records are admissible, and there is no requirement that the
officer appear. Respondent concedes that the lower court erroneously concluded that the DMV file
should not have been entered into evidence in light of Fouch, but notes that the circuit court
correctly found that petitioner failed to satisfy its burden of proof and argues that the circuit court
correctly weighed the totality of all evidence and appropriately reversed the revocation of
respondent’s driver’s license. 5 Our review of the record, however, suggests that the court’s order
contained erroneous findings as to these two assignments of error. Thus, consistent with our ruling
in Fouch, we agree with petitioner as to these issues.
In Syllabus Point 3 of Fouch, we held:
“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. 3, Crouch v. W. Va. Div. of Motor
Vehicles, 219 W. Va. 70, 631 S.E.2d 628 (2006).
In Fouch, we found that the circuit court erred by ruling that the DMV’s file, including the
DUI information sheet, should not have been admitted into evidence and considered by the OAH.
The Fouch Court also addressed earlier memorandum decisions from this Court wherein we
discussed that the admission of the DMV file is mandatory before the OAH. Specifically, the
Fouch decision referenced our 2018 decision where we noted
[w]e have previously stated that “[w]ithout a doubt, the Legislature enacted
W. Va. Code § 29A-5-2(b) with the intent that it would operate to place into
evidence in an administrative hearing [‘a]ll evidence, including papers, records,
agency staff memoranda and documents in the possession of the agency, of which
it desires to avail itself.[’]” Crouch, 219 W.Va. [at] 76, 631 S.E.2d [at] 634. As
evidenced by the use of the word “shall,” admission of the evidence identified in
the statute is mandatory. Id. The secondary chemical test result was in the DMV’s
possession, and the DMV sought to avail itself of the result. Accordingly, the result
of the secondary chemical test should have been admitted into evidence, subject to
a rebuttable presumption as to its accuracy. Id. at 76, n.12, 631 S.E.2d at 634, n.12
(“We point out that the fact that a document is deemed admissible under the statute
does not preclude the contents of the document from being challenged during the
hearing. Rather, the admission of such a document into evidence merely creates a
rebuttable presumption as to its accuracy.”).
Fouch, __ W. Va. at __, 853 S.E.2d at 592-93 (quoting Reed v. Lemley, No. 17-0797, 2018 WL
5Respondent’s brief does not address many of the issues raised by petitioner, but instead
argues that the circuit court correctly reversed the OAH’s decision by applying the factors set forth
in Crouch v. W. Va. Div. of Motor Vehicles, 219 W. Va. 70, 631 S.E.2d 628 (2006).
4
4944553, at *4 (W. Va. Oct. 12, 2018) (memorandum decision)).
As we noted in Fouch,
[t]he clear, unambiguous language of [West Virginia Code § 17C-5A-2(c)(3)]
provides that ‘the party’ seeking to compel a witness to appear at an OAH hearing
has the responsibility to request the subpoena, and the responsibility to petition the
circuit court for enforcement of the subpoena when the witness fails to appear.
__ W. Va. at __, 853 S.E.2d at 594.
Here, there is no evidence that respondent attempted to subpoena the officer. If respondent
wanted to procure the appearance of the officer at the OAH evidentiary hearing, he should have
subpoenaed the officer. Consistent with the Fouch decision, the circuit court’s order was erroneous
to the extent that it found that the officer’s failure to testify at the OAH hearing implicated
respondent’s due process rights to a full and fair hearing. Moreover, West Virginia Code § 29A-
5-2(b) and our decision in Fouch clearly provide that petitioner’s file was appropriately before the
OAH. Thus, the circuit court’s ruling to the contrary is erroneous.
Finally, petitioner argues that the circuit court erred when it ruled that the “agency” for
administrative license revocation proceedings is the OAH and not the DMV. Consistent with our
decision in Fouch, the creation of the OAH in 2010 did not change the mandatory direction that
the DMV’s file shall be offered and made part of the record.
For the foregoing reasons, the circuit court’s August 21, 2020, order is hereby reversed,
and the case is remanded for entry of an order consistent with the Fouch decision. Further,
inasmuch as the circuit court entered an order dismissing the matter, but failed to address the
OAH’s ruling that reversed the DMV’s order of revocation due to respondent’s refusal to submit
to a secondary chemical test, this Court directs the circuit court to provide clarification with respect
to this ruling. The mandate of this Court shall issue forthwith.
Reversed and remanded with directions.
ISSUED: May 20, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
DISSENTING:
5
Justice William R. Wooton
Wooton, Justice, dissenting:
I respectfully dissent from the majority’s decision to reverse the judgment of the circuit
court and remand the case for entry of an order that comports with this Court’s recent decision in
Frazier v. Fouch, __ W. Va. __, 853 S.E.2d 587 (2020). I would have affirmed the circuit court’s
judgment, which reversed the order of the Office of Administrative Hearings (“OAH”) and
reinstated the driving privileges of respondent David Miller, Jr., because I believe that Fouch, the
precedent upon which the majority relies, was wrongly decided.
Building upon on the shaky premise that West Virginia Code § 29A-5-2(b) not only allows,
but commands, the admission of Division of Motor Vehicle (“DMV”) records into evidence in any
and all circumstances, the majority concludes that these hearsay documents are sufficient, standing
alone, to sustain the hearing examiner’s finding that petitioner was guilty of driving under the
influence. Further, the majority’s reassurance that the admission of the records creates only a
rebuttable presumption as to their accuracy, citing Crouch v. West Virginia Division of Motor
Vehicles, 219 W. Va. 70, 76 n.12, 631 S.E.2d 628, 634 n.12 (2006), is revealed to be nothing more
than a fig leaf of due process; in the instant case, petitioner presented the sworn testimony of three
witnesses, none of whom ‒ singly or together ‒ were apparently enough to rebut what appears to
be a presumption clad in armor plate.
I begin with the foundation of this jurisprudential house of cards, the statute. West Virginia
Code § 29A-5-2(b) provides, in relevant part, that
[a]ll 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.
Although this Court has held that the statute is “clear and unambiguous and plainly expresses . . .
legislative intent[,]” Crouch, 219 W. Va. at 76, 631 S.E.2d at 634, I cannot agree. First, on its face
the statute is actually quite nonsensical, as by its express terms it excludes consideration of
anything but an agency file as evidence in an administrative hearing ‒ a fact the majority
conveniently ignores. Second, the statute does not address the issue of authentication, i.e.,
“evidence sufficient to support a finding that the item is what the proponent claims it is[,]” 6 which
would seem to be necessary inasmuch as most if not all of the documents contained in a DMV file
are not self-authenticating. 7 Finally, the statute ensures that the playing field in an administrative
proceeding will never be level, in that documentary evidence offered by the agency must be
admitted, while evidence offered by an individual litigant comes in only pursuant to “the rules of
6
See W. Va. R. Evid. 901(a).
7
See W. Va. R. Evid. 902.
6
evidence as applied in civil cases in the circuit courts of this state[,]” or is otherwise “of a type
commonly relied upon by reasonably prudent men in the conduct of their affairs.” See W. Va.
Code § 29A-5-2(a).
In 2010, four years after Crouch was decided, the West Virginia Legislature created the
OAH as a separate operating agency within the Department of Transportation, W. Va. Code § 17C-
5C-1(a), and established a transition period after which the new agency was charged with the duty
to hear DMV appeals. See id. § 17C-5C-3. Although a number of circuit courts ‒ including the
court below in this case ‒ concluded that the automatic admission rule of West Virginia Code §
29A-5-2(b) no longer applied in the “modern administrative review hearing” procedure
specifically established for proceedings before the OAH, this Court emphatically disagreed.
Fouch, __ W.V. at __, 853 S.E.2d at 591-92; see also Frazier v. Condia, No. 19-0465, 2020 WL
4355713, at *2 (W. Va. July 30, 2020) (memorandum decision) (“[i]t is well-settled that the DMV
file is to be accepted into evidence at a hearing before the OAH.”); Frazier v. Riddel, No. 19-0197,
2020 WL 4355641, at *2 (W. Va. July 30, 2020) (memorandum decision) (“[w]e have, however,
continued to uphold [W. Va. Code § 29A-5-2(b)] in the decade since the OAH began.”).
In Fouch, this Court also held, albeit sub silentio, that the DMV file is admissible in a
hearing before the OAH even in the absence of the arresting officer ‒ a giant step beyond anything
contained in Crouch and its progeny. Further, the Court found that the DMV has no duty to secure
the officer’s attendance at an OAH hearing, thus opening the door to hearings which pit petitioner
and his or her witnesses and evidence against “a testimonial statement by a witness who does not
appear at trial,” State v. Kennedy, 229 W. Va. 756, 765, 735 S.E.2d 905, 914 (2012), i.e., a silent
document that can neither be cross-examined nor impeached.
Obviously, Kennedy was a confrontation case decided pursuant to article III, section 14 of
the West Virginia Constitution, and thus is not directly applicable to a civil proceeding. With that
acknowledged, however, Kennedy and its federal antecedents 8 are instructive in that confrontation
rights are closely related to due process rights; 9 both prohibit the State from depriving a citizen of
liberty or property on the basis of unreliable evidence and/or in a proceeding that is fundamentally
unfair. We have held that
8
See Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause bars the
admission of a testimonial statement by a witness who does not appear at trial, unless the witness
is unavailable to testify and the accused had a prior opportunity to cross-examine the witness);
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) (certificates of drug analysis fell squarely
within the types of testimonial materials excluded from evidence in the absence of a witness
competent to testify as to the statements contained therein); Williams v. Illinois, 567 U.S. 50, 54
(2012) (narrowing Crawford, holding that testimonial materials whose “primary purpose of
accusing a targeted individual of engaging in criminal conduct” must be excluded from evidence
in the absence of a witness).
9
Article III, section 10 of the West Virginia Constitution provides that “[n]o person shall
be deprived of life, liberty, or property, without due process of law, and the judgment of his peers.”
7
[a]pplicable standards for procedural due process, outside the
criminal area, may depend upon the particular circumstances of a
given case. However, there are certain fundamental principles in
regard to procedural due process embodied in Article III, Section 10
of the West Virginia Constitution, which are: First, the more
valuable the right sought to be deprived, the more safeguards will
be interposed. Second, due process must generally be given before
the deprivation occurs unless a compelling public policy dictates
otherwise. Third, a temporary deprivation of rights may not require
as large a measure of procedural due process protection as a
permanent deprivation.”
Syl. Pt. 5, In re J.S., 233 W. Va. 394, 758 S.E.2d 747 (2014) (citing Syl. Pt. 2, North v. Bd. of
Regents, 160 W.Va. 248, 233 S.E.2d 411 (1977)).
All three criteria are met in this case. First, this Court has held that “‘[a] driver’s license
is a property interest and such interest is entitled to protection under the Due Process Clause of the
West Virginia Constitution.’ Syl. Pt. 1, Abshire v. Cline, 193 W.Va. 180, 455 S.E.2d 549 (1995).”
Syl. Pt. 2, Straub v. Reed, 239 W. Va. 844, 806 S.E.2d 768 (2017). Indeed, in a rural state such as
West Virginia, which has little or no public transportation in many areas, that property interest is
critical to an individual’s ability to get to work, get to a grocery store, get to church, get to a child’s
concerts, ball games, recitals – in short, to live a normal life. Second, there is no reason, let alone
a compelling reason, why arresting officers cannot be required to attend license revocation
proceedings, assuming that those proceedings are noticed far enough in advance to allow for
scheduling. In this regard, the arresting officer in Fouch was subpoenaed five times but never did
appear, occasioning numerous continuances. Astoundingly, this Court’s response to the officer’s
continued refusal to obey lawful process was to chastise the petitioner, holding that as the party
“seeking to compel a witness to appear at an OAH hearing[,]” he had “the responsibility to petition
the circuit court for enforcement of the subpoena when the witness fails to appear.” Fouch, __ W.
Va. at __, 853 S.E.2d at 594. 10 Third, although it could be argued that a license suspension is a
“temporary” deprivation of a property right, such argument could only be made from within the
confines of an ivory tower. The loss of a driver’s license for even six months can have cascading
consequences where an individual is left without means of transportation – another significant
real-world burden, see supra note 5.
10
Given that the Commissioner, not the petitioner, has the burden of proof in a revocation
hearing, W. Va. Code § 17C-5C-4(d), I fail to see how this Court can require the petitioner to not
only subpoena the arresting officer ‒ a hostile witness if ever there was one ‒ but also to institute
court proceedings to force the officer’s to appear, i.e., to obey a lawful court order that any other
person in the State would be required to obey. The additional time and expense occasioned by
continuances and extra court proceedings is a real-world burden whose significance was of no
apparent concern to the Court in Fouch.
8
I understand and share the Court’s desire to get impaired drivers off the road; the offense
of driving under the influence is serious, and the criminal and civil penalties therefor should be
serious as well. However, the nature of an offense cannot be the yardstick by which we measure
the amount of process due to individuals who face the loss of a valuable property right. This
Court’s decision in Fouch, holding that the DMV can sustain its statutory burden of proof in the
absence of any witness to authenticate, explain, defend, or testify as to the contents of a hearsay
document, was an example of what one United States Supreme Court Justice termed “interpretive
jiggery-pokery.” King v. Burwell, 576 U.S. 473, 506 (2015) (Scalia, J., dissenting). Then, on the
heels of Fouch, this Court went one step further in the instant case, finding that the so-called
rebuttable presumption of accuracy of a hearsay document carries the day despite the testimony of
the petitioner and two other witnesses to the contrary. I am reminded of the United States Supreme
Court’s admonition in Crawford that “[d]ispensing with confrontation because testimony is
obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty.”
541 U.S. at 62.
Because the result in this case is fundamentally unfair, and because it is likely to be
repeated often in this post-Fouch world, I respectfully dissent.
9