Maynard, Justice, concurring in part and dissenting in part:
I concur to affirming the
appellant's conviction for driving on a revoked driver's license. However,
I dissent to the reversal of the appellant's third offense DUI conviction.
Specifically, I disagree
with the majority's interpretation of W.Va. Code § 17- 5-7(a) which states,
in part, that “[i]f any person under arrest . . . refuses to submit to
any secondary chemical test, the tests shall not be given[.]” I believe
that this simply means that the refusal to submit to a secondary chemical
test triggers the administrative procedures necessary to suspend the party's
driver's license. Moreover, proper evidence of this refusal, without any additional
evidence of intoxication, may result in revocation of the party's driver's
license. See W.Va. Code §§ 17C-5-4(e) and 17C-5-7(a).
Unlike the majority, I do
not believe that the implied consent provision preempts the application of
traditional search and seizure principles to DUI criminal prosecutions. Nothing in the text of these statutes expressly indicates
a Legislative intent to do so. Further, a fair reading of these statutes does
not conflict with search and seizure law. Therefore, I believe that nothing
in our implied consent law prevented Trooper Branham from obtaining a warrant
if he could convince a neutral magistrate of the existence of probable cause.
In sum, I conclude that
it was not error, plain or otherwise, for Trooper Branham to inform the appellant
that a warrant could be used to obtain his blood. Accordingly, I dissent to
the reversal of the appellant's third offense DUI conviction.