After the arrest, deputy Kastigar forwarded to the Commissioner a report indicating Mr. Butcher had been arrested for driving under the influence. The report also stated that he refused to take a chemical breath test. On December 27, 1996, the Commissioner issued an order notifying Mr. Butcher that his driver's license was revoked because of his refusal to take the chemical breath test. The order informed Mr. Butcher that he was entitled to have an administrative hearing to contest the revocation. Mr. Butcher contested the revocation. A hearing was held on April 8, 1997. Following the hearing, the Commissioner found that the evidence established that Mr. Butcher had refused the chemical breath test. Consequently, the Commissioner issued a final order on December 2, 1997, revoking Mr. Butcher's driver's license for 10 years.

        On December 30, 1997, Mr. Butcher appealed the Commissioner's final order to the circuit court. On June 30, 2000, the circuit court filed an order affirming the Commissioner's final order. Mr. Butcher filed a motion for reconsideration on July 6, 2000.   (See footnote 1)  The circuit court filed an order on June 6, 2001, denying the motion for reconsideration. Thereafter, this appeal was filed.

        The pertinent language in W. Va. Code § 17C-5-7(a) provides that an officer attempting to perform a chemical breath test must inform the driver “that his refusal to submit to the secondary test finally designated will result in the revocation of his license to operate a motor vehicle in this state for a period of at least one year and up to life.”   (See footnote 2) 

(Emphasis added.)

        Mr. Butcher argues that the word “will,” as used in W. Va. Code § 17C-5-7(a), implies a definite suspension. Therefore, he was incorrectly advised by deputy Kastigar's use of the word “may,” as “may” implies a discretionary suspension. Several cases from other jurisdictions have been cited by Mr. Butcher as support for his position. For example, in State v. Huber, 540 N.E.2d 140 (Ind. App. Ct. 1989), the defendant refused to take a chemical breath test after the arresting officer warned him that his driver's license “may” be suspended. The defendant's driver's license was suspended; however, a trial court ordered the license restored because the arresting officer failed to use the word “will” when advising the defendant, as required by statute, regarding the suspension of his license. The Indiana Court of Appeals upheld the trial court's decision. In doing so, the court stated: “The phrase 'may be suspended' connotes discretionary action. Thus the advisement failed to convey the strong likelihood that suspension of driving privileges would follow Huber's refusal to submit to a breathalyser test.” Huber, 540 N.E.2d at 142. See also Graves v. Commonwealth, 535 A.2d 707 (Pa. 1988) (reversing suspension because officer used the word “could” instead of “will”); Mairs v. Department of Licensing, 854 P.2d 665 (Wash. Ct. App. 1993) (reversing suspension because officer used the word “probably” instead of “will”); Welch v. State, 536 P.2d 172 (Wash. Ct. App. 1975) (reversing suspension because officer used the word “could” instead of “will”).

        Conversely, the Commissioner argues that deputy Kastigar's warning “substantially” complied with the requirements of the statute and therefore the suspension of Mr. Butcher's driving license should not be disturbed.   (See footnote 3)  A few cases were cited by the Commissioner to support its “substantial” compliance argument. For example, in Commonwealth Dep't of Pub. Safety v. Tuemler, 526 S.W.2d 305 (Ky. Ct. App. 1975), a driver had his license suspended for refusing to take a breathalyser test.   (See footnote 4)  The driver argued that the arresting officer informed him that “chances” were he would lose his license for refusing to take the test. The driver contended that this warning was misleading, because suspension was automatic. The appellate court ruled that the warning “substantially apprised [the driver] of the consequences of refusing to take the test.” Tuemler, 526 S.W.2d at 306. The appellate court also noted that “revocation is not necessarily 'automatic,' but is subject to an administrative hearing[.]” Id. The appellate court reinstated the suspension.

        In another case cited by the Commissioner, In re.Olien, 387 N.W.2d 262 (S.D. 1985), a driver had his license revoked after refusing a blood test. The driver contended on appeal that the officer mislead him by stating that refusal to take the blood test “can” result in revocation of his license. The applicable statute required warning that a license revocation “shall” be imposed. The Supreme Court of South Dakota acknowledged that the statute was not literally complied with by the arresting officer. However, the court affirmed the revocation after finding “the officer's advice substantially complied with [the statute.]” Olien, 387 N.W.2d at 264.

        We are not persuaded by the “substantial” compliance authorities cited by the Commissioner. The pertinent language of W. Va. Code § 17C-5-7(a) is clear and unambiguous. “[A] statute which is clear and unambiguous should be applied by the courts and not construed or interpreted.” Carper v. Kanawha Banking & Trust Co., 157 W. Va. 477, 517, 207 S.E.2d 897, 921 (1974) (citation omitted). Under the statute, an officer making a DUI arrest must inform the arrestee that a refusal to submit to a chemical breath test “will” result in a license suspension.

        Here, Mr. Butcher was never informed that his license “will” be suspended for refusing to take the chemical breath test. Instead, Mr. Butcher was erroneously told that his license “may” be suspended. Our cases have held that “[t]he word 'may' generally . . . connotes discretion.” State v. Hedrick, 204 W. Va. 547, 552, 514 S.E.2d 397, 402 (1999) (citations omitted). No discretion existed. Mr. Butcher's license was automatically suspended when the Commissioner received the report from deputy Kastigar. We are unable to determine from the record what course Mr. Butcher would have taken had he been properly advised of the consequences of his refusal to take the chemical breath test. As Mr. Butcher was unable to make an intelligent decision because of the erroneous warning given to him, we reverse the circuit court's order.

        If any person under arrest as specified in section four of this article refuses to submit to any secondary chemical test, the tests shall not be given: Provided, That prior to such refusal, the person is given a written statement advising him that his refusal to submit to the secondary test finally designated will result in the revocation of his license to operate a motor vehicle in this state for a period of at least one year and up to life. If a person initially refuses to submit to the designated secondary chemical test after being informed in writing of the consequences of such refusal, he shall be informed orally and in writing that after fifteen minutes said refusal shall be deemed to be final and the arresting officer shall after said period of time expires have no further duty to provide the person with an opportunity to take the secondary test. The officer shall within forty-eight hours of such refusal, sign and submit to the commissioner of motor vehicles a written statement of the officer that (1) he had reasonable grounds to believe such person had been driving a motor vehicle in this state while under the influence of alcohol, controlled substances or drugs; (2) such person was lawfully placed under arrest for an offense relating to driving a motor vehicle in this state while under the influence of alcohol, controlled substances or drugs; (3) such person refused to submit to the secondary chemical test finally designated in the manner provided in section four of this article; and (4) such person was given a written statement advising him that his license to operate a motor vehicle in this state would be revoked for a period of at least one year and up to life if he refused to submit to the secondary test finally designated in the manner provided in section four of this article. The signing of the statement required to be signed by this section shall constitute an oath or affirmation by the person signing such statement that the statements contained therein are true and that any copy filed is a true copy. Such statement shall contain upon its face a warning to the officer signing that to willfully sign a statement containing false information concerning any matter or thing, material, or not material, is false swearing and is a misdemeanor. Upon receiving the statement the commissioner shall make and enter an order revoking such person's license to operate a motor vehicle in this state for the period prescribed by this section.