Mario Palumbo
Paul E. Jordan
Office of the Attorney General
Charleston, West Virginia
Attorneys for the Appellant
James W. St. Clair
St. Clair and Levine
Huntington, West Virginia
Attorney for the Appellee
This Opinion was delivered PER CURIAM.
Per Curiam:
This case involves an appeal by the West Virginia
Department of Motor Vehicles (DMV) from a final order entered by
the Circuit Court of Putnam County on March 5, 1990. The order
reversed a ten-year suspension of the appellee, David Chapman's
driver's license, by the DMV for driving under the influence of
alcohol, second offense. The DMV contends that the trial court
erred in reversing the suspension order because the appellee
admittedly refused to submit to a breathalyzer examination
subsequent to his arrest for driving under the influence of
alcohol, second offense. We agree with the contentions of the DMV.
During the early morning of January 10, 1988, Putnam
County Deputy Sheriff J. D. Janey arrested the appellee for driving
under the influence of alcohol. Deputy Janey had observed the
appellee's vehicle weaving back and forth into the opposite lane of
traffic, and almost striking a guardrail. After stopping the
appellee's vehicle, Deputy Janey noticed a strong odor of alcohol
upon the driver, the appellee. Deputy Janey asked the appellee to
exit the vehicle and perform field sobriety tests. Thereafter, the
appellee exhibited a lack of balance and was unable to perform the
"finger-to-nose" test. Deputy Janey then arrested the appellee for
driving under the influence of alcohol.
After arresting the appellee, Deputy Janey transported
him to the Putnam County Sheriff's Office in Winfield. The
appellee was requested to undergo a breathalyzer test to determine
the alcoholic content of the appellee's blood. The appellee
refused to undergo the test. Deputy Janey read an "implied
consent" form to the appellee explaining the penalties for refusing
to undergo a designated secondary chemical test when one has been
arrested for driving under the influence of alcohol. Deputy Janey
again asked the appellee to undergo the test fifteen minutes later,
and the appellee again refused.
As a result of the appellee's refusal to undergo a
breathalyzer test, Deputy Janey completed an "Arresting Officer's
Implied Consent Statement," and forwarded it to the Commissioner of
Motor Vehicles.See footnote 1 The statement noted that (1) Deputy Janey had
reasonable grounds to believe that the appellee had been driving
under the influence of alcohol; (2) that the Putnam County
Sheriff's Department had designated that a breathalyzer test be
administered incidental to a lawful arrest; (3) that the appellee
was given written notice that his driver's license would be revoked
for a period of at least one year if he refused to undergo the
breathalyzer test; and (4) the appellee refused to undergo the
breathalyzer test.
In response to receiving Deputy Janey's statement, the
DMV revoked the appellee's driver's license for a period of ten
years. The revocation order noted that the appellee's driver's
license had been suspended on one prior occasion for driving under
the influence of alcohol (the prior suspension had occurred on
April 15, 1987). The appellee timely requested a hearing to
protest the revocation.
At the hearing held on March 7, 1988, the appellee
admitted that he had refused to undergo the breathalyzer
examination requested by Deputy Janey. He suggested that he was
willing to undergo a blood test upon his arrest, but that Deputy
Janey informed him that he had only fifteen minutes in which to
secure such a test, and that it would cost him $200.00.
By final order dated June 1, 1988, the Commissioner of
the DMV upheld the ten-year revocation of the appellee's driver's
license. The appellee acknowledges in his brief before this Court
that "[t]here is no doubt that [the appellee] did, shortly after
June 1, 1988, receive a copy of the 'FINAL ORDER' which revoked his
right to drive for ten years[.]" Thirteen months later, on July
24, 1989, the appellee appealed the revocation to the Circuit Court
of Putnam County.
In his appeal to the trial court, the appellee
acknowledged that his petition was filed more than thirty days
after receipt of the final order of revocation. He also
acknowledged that W. Va. Code, 29A-5-4(b) [1964], requires that an
appeal from the final order of the Department of Motor Vehicles be
filed within thirty days of the receipt of the final order.
Appellee argued that the final order did not notify the appellee of
his right to appeal, and therefore the thirty-day time period
should not apply. The appellee also argued that because he had
been willing to undergo a blood test, the fact that he had refused
to undergo the breathalyzer examination should not constitute a
violation of W. Va. Code, 17C-5-7 [1986], which states, inter alia,
that a refusal to undergo a designated secondary test upon arrest
for driving under the influence of alcohol shall result in the
revocation of the refuser's driver's license for a period of at
least one year.See footnote 2
By order entered March 5, 1990, the trial court reversed
the final order of the DMV and reinstated the appellee's driver's
license. The trial court cited neither reasons nor law in its
reinstatement order. An appeal to this Court followed.
The DMV contends that the trial court committed
reversible error when it reversed the final order of the
Department. In Gino's Pizza of West Hamlin v. WVHRC, ___ W. Va.
___, 418 S.E.2d 758 (1992), we noted when a circuit court may
reverse an agency decision governed by the West Virginia
Administrative Procedure Act. Contested decisions of the DMV are
governed by the Act. See W. Va. Code, 29A-1-1, et seq. and 17C-5A-2 [1992]. In syllabus point 3 of Gino's, we stated:
'Upon judicial review of a contested case
under the West Virginia Administrative
Procedure Act, Chapter 29A, article 5, section
4(g), the circuit court may affirm the order
or decision of the agency or remand the case
for further proceedings. The circuit court
shall reverse, vacate or modify the order or
decision of the agency if the substantial
rights of the petitioner or petitioners have
been prejudiced because the administrative
findings, inferences, conclusions, decisions
or order are: "(1) In violation of
constitutional or statutory provisions; or (2)
In excess of the statutory authority or
jurisdiction of the agency; or (3) Made upon
unlawful procedures; or (4) Affected by other
error of law; or (5) Clearly wrong in view of
the reliable, probative and substantial
evidence on the whole record; or (6) Arbitrary
or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of
discretion."' Syl. pt. 2, Shepherdstown
Volunteer Fire Dep't v. State ex rel. State
Human Rights Commission, 172 W. Va. 627, 309
S.E.2d 342 (1983).
For the reasons that follow, we find that the trial court
exceeded its authority to reverse a final order of the DMV under
W. Va. Code, 29A-5-4(g) [1964] when it reinstated the appellee's
driver's license.
W. Va. Code, 17C-5-7 [1986], in part. The Department noted in its
final order that the appellee had previously received a driver's
license revocation for violating W. Va. Code, 17C-5-2 in 1986.
The appellee asserts that a driver's license revocation
for violating W. Va. Code, 17C-5-2 [1986] is not covered under the
enhancement provisions of W. Va. Code, 17C-5-7 [1986]. Such a
position is clearly erroneous, as a simple reading of W. Va. Code,
17C-5-7 [1986] shows. W. Va. Code, 17C-5-7(b) [1986] states, in
pertinent part:
(b) For the purposes of this section,
where reference is made to previous
suspensions or revocations under this section,
the following types of suspensions or
revocations shall also be regarded as
suspensions or revocations under this section:
(2) Any revocation under the provisions
of section one or two [§ 17C-5A-1 or § 17C-5A-2], article five-a of this chapter,See footnote 5 for
conduct which occurred on or after June tenth,
one thousand nine hundred eighty-three.
For the foregoing reasons, the March 5, 1990 final order
of the Circuit Court of Putnam County is reversed, and this case is
remanded for reinstatement of the final order of the Department of
Motor Vehicles.
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 [§ 17C-5-4] 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 [§ 17C-5-4] of this article.
. . . .
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.
[I]t is clear that even though Mr. Moczek had
a right to a blood test in addition to the
secondary chemical test designated by the
state police under W. Va. Code, 17C-5-4
[1983], in this case the breathalyzer, the
fact that he refused to take the designated
breathalyzer automatically subjected him to
administrative suspension of his driver's
license.
178 W. Va. at 554, 363 S.E.2d at 239.
It should be noted that Moczek was decided under the 1983 version of W. Va. Code, 17C-5-7. The 1986 version of the section, under which the instant case is governed, is not substantially different from the 1983 section for the purposes of this case.
the Department in 1981. The appellee asserts that because the
machine was made by a different company, it did not constitute a
"designated chemical test," as referred to in W. Va. Code, 17C-5-7
[1986]. This issue was not raised before the trial court.
However, we recently addressed a similar argument in Mitchell v.
Cline, 186 W. Va. 332, 335, 412 S.E.2d 733, 736 (1991), wherein we
stated:
Given the fact that particular test
technology is rapidly developing, and the
further fact that the problem of intoxicated
drivers is a relatively static one, this Court
cannot believe that it was the intent of the
Legislature to impose particular test or
machine restrictions on law enforcement
officers in the enforcement of the drunk-driving laws. It was not the intent of the
Legislature to afford drunk drivers with
technical loopholes to afford them a method of
escaping the effect of the laws. Rather, the
Court believes that it was the purpose of the
Legislature to afford police officers an
objective, scientific, and rational basis for
distinguishing intoxicated from non-intoxicated drivers, and the Legislature
contemplated that that objective could be
accomplished by any number of scientifically-accepted blood, breath, or urine tests. The
key factor is not whether the particular test
is designated, but whether a scientifically
established test involving breath, blood, or
urine is designated and employed.
(citation omitted). There is nothing in the record to suggest, nor
does the appellee assert, that the fact that the breathalyzer
machine was manufactured by a company other than the one listed on
the form somehow violates the "scientifically established test"
criteria.