(a)
Any person who is licensed to operate a motor vehicle in this state and who drives
a motor vehicle in this state shall be deemed to have given his or her consent
by the operation
thereof, subject to the provisions of this article, to the procedure set forth
in this article for the determination of whether his or her license to operate
a motor vehicle in this state should be revoked because he or she . . . did
drive a motor vehicle while under the age of twenty-one years with an alcohol
concentration in his or her blood of two hundredths of one percent or more,
by weight, but less than ten hundredths of one percent, by weight.
.
. . .
(c)
. . . . If the results of the tests indicate that at the time the test or tests
were administered the person was under the age of twenty-one years and had an
alcohol concentration in his or her blood of two hundredths of one percent or
more, by weight, but less than ten hundredths of one percent, by weight, the
commissioner shall make and enter an order suspending the person's license to
operate a motor vehicle in this state. . . .
.
. . .
(f)
. . . . [I]f the commissioner determines that the results of the tests indicate
that at the time the test or tests were administered the child had, in his or
her blood, an alcohol concentration of two hundredths of one percent or more,
by weight, but also determines that the act of the child in driving the motor
vehicle was not such that it would provide grounds for arrest for an offense
defined under the provisions of subsection (a), (b), (c), (d), (e), (f) or (g),
section two, article five of this chapter if the child were an adult, the commissioner
shall make and enter an order suspending the child's license to operate a motor
vehicle in this state. If the commissioner determines that the act of the child
in driving the motor vehicle was such that it would provide grounds for arrest
for an offense defined under the provisions of subsection (a), (b), (c), (d),
(e), (f) or (g), section two, article five of this chapter if the child were
an adult, the commissioner shall make and enter an order revoking the child's
license to operate a motor vehicle in this state. . . .
Thereafter,
on September 29, 2002, at the age of twenty-one, Mr. McVey was again arrested
for DUI. The Commissioner revoked Mr. McVey's privilege to drive a motor vehicle
in this State for a period of ten years, commensurate with W. Va. Code § 17C-5A-
2(I) (2000) (Repl. Vol. 2000), which provides, in pertinent part:
(I)
If the commissioner finds by a preponderance of the evidence that the person
did drive a motor vehicle while under the influence of alcohol, . . . the commissioner
shall revoke the person's license for a period of six months: Provided, That
if the commissioner has previously suspended or revoked the person's license
under the provisions of this section or section one [§ 17C-5A-1] of
this article within the ten years immediately preceding the date of arrest, the
period of revocation shall be ten years . . . .
Given the statutory nature
of the applicable law, a review of the various canons of statutory construction
is instructive to my analysis of the majority's rationale underlying its decision
of this case.
When
examining an issue requiring statutory construction, it is first necessary to
determine the expression of legislative intent evident in the subject statute. “The
primary object in construing a statute is to ascertain and give effect to the
intent of the Legislature.” Syl. pt. 1, Smith v. State Workmen's Comp.
Comm'r, 159 W. Va. 108, 219 S.E.2d 361 (1975). “Once the legislative
intent underlying a particular statute has been ascertained, we proceed to consider
the precise language thereof.” State ex rel. McGraw v. Combs Servs.,
206 W. Va. 512, 518, 526 S.E.2d 34, 40 (1999). If the language employed
by the
Legislature in the given enactment is plain, such provision should be applied,
and not construed. “A statutory provision which is clear and unambiguous
and plainly expresses the legislative intent will not be interpreted by the
courts but will be given full force and effect.” Syl. pt. 2, State
v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951). Accord DeVane
v. Kennedy, 205 W. Va. 519, 529, 519 S.E.2d 622, 632 (1999) (“Where
the language of a statutory provision is plain, its terms should be applied
as written and not construed.” (citations omitted)).
Prominent
in this mandate to the Commissioner is the Legislature's use of the word “shall”.
This Court repeatedly has held that “[i]t is well established that the word
'shall,' in the absence of language in the statute showing a contrary intent
on the part of the Legislature, should be afforded a mandatory connotation.” Syl.
pt. 1, Nelson v. West Virginia Pub. Employees Ins. Bd., 171 W. Va.
445, 300 S.E.2d 86 (1982). Accord Syl. pt. 6, State v. Myers, 216
W. Va. 120, 602 S.E.2d 796 (2004), cert. denied, ___ U.S. ___, 125
S. Ct. 925, 160 L. Ed. 2d 813 (2005). See also State
ex rel. Brooks v. Zakaib, 214 W. Va. 253, 264-65, 588 S.E.2d 418, 429-30
(2003) (“Ordinarily, the word 'shall' has a mandatory, directory connotation.” (citations
omitted)); State v. Allen, 208 W. Va. 144, 153, 539 S.E.2d 87, 96
(1999) (“Generally, 'shall' commands a mandatory connotation and denotes
that the described behavior is directory, rather than discretionary.” (citations
omitted)).
As noted
above, statutory language that is plain should be applied as written and not
construed. See, e.g., Syl. pt. 2, State v. Epperly, 135 W. Va.
877, 65 S.E.2d 488. That said, it is clear that the language of W. Va. Code § 17C-5A-2(I)
plainly imposes a mandatory period of revocation of ten years. Accordingly, because
Mr. McVey had a previous offense, the ten-year revocation is mandatory. See W. Va.
Code § 17C-5A-2(I) (“[I]f the commissioner has previously suspended
or revoked the person's license . . . within the ten years immediately
preceding the date of arrest, the period of revocation shall be ten years[.]” (emphasis
added)). Thus, because Mr. McVey had a prior offense for DUI, his punishment
was properly enhanced by the Commissioner pursuant to W. Va. Code § 17C-
5A-2(I). Therefore, the majority was correct in reversing and remanding the circuit
court's decision, which found that Mr. McVey's prior suspension could not be
used for enhancement purposes.
In view
of the foregoing, I concur.