Everett Frazier, Commissioner, West Virginia Division of Motor Vehicles v. Douglas H. Null ( 2022 )


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  •                                                                                FILED
    April 15, 2022
    released at 3:00 p.m.
    No. 20-0225 – Frazier v. Null                                           EDYTHE NASH GAISER, CLERK
    SUPREME COURT OF APPEALS
    OF WEST VIRGINIA
    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. 1 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.
    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
    1
    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.
    1
    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
    2
    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. 2 “The principal question at the
    [administrative revocation] hearing shall be whether the person did drive a motor vehicle
    2
    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).
    3
    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)).
    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.
    4
    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. 3 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).
    3
    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).
    5
    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
    6
    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.”). 4
    4
    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).
    7
    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
    8
    rights and therefore did not reach the issue of DUI. 5 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:
    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
    5
    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.
    9
    preponderance of the evidence standard to warrant the administrative revocation of
    respondent’s driver's license.”). 6
    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.
    6
    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).
    10
    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. 7 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.    8
    With respect to cases pending appeal but requiring remand for further
    7
    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)).
    8
    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
    (continued . . .)
    11
    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.
    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
    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.
    12
    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.
    13
    

Document Info

Docket Number: 20-0225

Filed Date: 4/15/2022

Precedential Status: Separate Opinion

Modified Date: 4/15/2022