Albright, Chief Justice, dissenting:
In its aggressive reach to permit the administrative
revocation of an operator's license to operate independently of criminal proceedings
for driving under the influence of alcohol, the majority has ignored both statutory
prerequisites necessary for the invocation of the administrative revocation proceedings
and basic precepts inherent in criminal proceedings in this state. Refusing to
recognize the interrelated nature of administrative and criminal sanctions for
driving under the influence, the majority wrongly concludes that shoddy police
procedures should be overlooked and license revocation permitted even when the
statutory conditions for imposing such administrative sanction have not been
fully met.
Under West Virginia Code § 17C-5A-1,
the triggering event for the initiation of the administrative revocation proceedings
is the filing of a written statement by a law- enforcement officer within forty-eight
hours of his/her arrest of an individual for driving under the influence in violation
of West Virginia Code § 17C-5A-2 (2004). By statute, that written statement
is required to “include the specific offense with which the person is charged
and, if applicable, a copy of the results of any secondary tests of blood, breath
or urine.” W.Va. Code § 17C-5A-1(b). This statement must be signed,
as “[t]he signing of the statement . . . shall
constitute an oath or affirmation by the person signing the statement that
the statements contained therein are true. . . .” Id.
In this case, the arresting officer took
the Appellee to jail, completed a criminal complaint which he failed to sign,
and left the document for the magistrate's review in the morning. Upon the magistrate's
perusal of the criminal complaint, the absence of the arresting officer's signature
was immediately recognized as a fatal procedural impediment. Consequently, the
complaint was not lodged and a warrant was not issued due to the absence of a
sworn complaint and, consequently, the failure to demonstrate probable cause.
In short, the Appellee was never formally charged by the Wayne County Magistrate
with driving under the influence in violation of West Virginia Code § 17C-5-2.
Accordingly, the notice sent by the arresting officer to the DMV which triggered
the license revocation proceedings was missing one of the essential statutory
predicates for instituting such proceedings. Critically, this fatal defect voided
the jurisdiction of the DMV to revoke Appellee's operator's license under West
Virginia Code § 17C-5A-1(b).
In its review of the administrative appeal,
the circuit court identified various procedural flaws with regard to the revocation
of Appellee's operator's license, including the impact of the fact that probable
cause had never been found to charge Appellee with driving under the influence.
Rather than appreciating the significance of those fundamental procedural
flaws, the majority _ intent on upholding a revocation at all costs _ either
downplayed their importance or improperly analyzed the procedures involved.
While citing the seminal case from this Court
that properly identifies the meaning of the term “charged” in criminal
law parlance, the majority completely overlooked its significance. In State
ex rel. Burdette v. Scott, 163 W.Va. 705, 259 S.E.2d 626 (1979), this Court
elucidated:
W.Va. Code, 62-1-1 [defining
criminal complaint] and -2 [issuance of warrant] (1965), make it clear that a
person is “charged” with a crime once a written complaint has been
filed against him and a judicial officer, having found that the complaint contains
sufficient facts to establish probable cause that a crime has been committed
by the defendant, issues a warrant.
163 W.Va. at 709, 259 S.E.2d at 629. Rather than appreciating the importance
of the second part of the “charging” process _ the approval by the
judicial officer of the sufficiency of the grounds to establish probable cause
_ the majority completely disavows the critical nature of this aspect of the “charging” process
and concludes that the term “charged” is synonymous with arrest.
The circuit court fully understood the dangers
of permitting a law enforcement officer to institute revocation proceedings without
the critical component of independent review by a judicial officer:
[D]ue process requires that the
arresting officer complete the criminal charging process before he can proceed
to the
administrative revocation hearing. To rule otherwise would permit law enforcement
officers to make arbitrary, and possibly unlawful arrests and never seek a
judicial charge for the underlying criminal offense. I do not believe that
due process would be satisfied by permitting a law enforcement officer to act
unilaterally in triggering the administrative revocation procedure without
any judicial involvement in the arrest and charge. A law enforcement officer's
reasonable belief that a person is driving while intoxicated is no substitute
for the independent judicial determination of probable cause for an arrest.
The majority goes seriously astray in its
analysis by insisting that the administrative and criminal sanctions for driving
under the influence are “separate and distinct.” This is an inaccurate
statement of the law. Simple perusal of the statute authorizing administrative
sanctions for driving under the influence demonstrates the interrelated nature
of these two forms of punishment for committing this offense. Only upon an arrest
for violation of West Virginia Code § 17C-5-2 that is followed by a timely
filing of a written and signed statement by the arresting officer that identifies
the offense the individual is actually charged with can the administrative
revocation proceedings be initiated. To suggest that the two systems work completely
independently of each other, as the majority maintains, is simply not true. Rather
than being distinct systems with no reliance on each other, the criminal and
administrative proceedings for charges of driving under the influence are indisputedly
intertwined. We recognized the two-track approach inherent to this area of the
law (administrative and criminal) in Choma v. West Virginia Division of Motor
Vehicles, 210 W.Va. 256, 557 S.E.2d 310 (2001), observing “that the
separate procedures [administrative and criminal] are connected and intertwined
in important ways.” Id. at 260, 557 S.E.2d at 314.
Accordingly, we held in Choma that the DMV commissioner “must
consider and give substantial weight to the results of related criminal proceedings
involving the same person who is the subject of the administrative proceeding
before the commissioner, when evidence of such results is presented in the
administrative proceeding.” 210 W.Va. at 257, 557 S.E.2d at 311, syl.
pt. 3, in part.
In its haste to disconnect the administrative
sanctions from the criminal penalties for driving under the influence, the majority
fails to understand that the criminal charging process, and all the attendant
procedural protections that necessarily accompany that process, are the springboard
from which the administrative sanctions are authorized by the Legislature. Without
a valid charging process _ one that includes review by a judicial officer of
the sufficiency of probable cause for the charge _ there is no predicate basis
for initiating the administrative sanctions authorized by West Virginia Code § 17C-5A-1.
Rather than attempting to salvage one revocation
proceeding that was improperly initiated, the majority should have recognized
that our legal system would be better served with a forward looking resolution
of this matter. Instead of doggedly upholding Appellee's license revocation,
the majority should have recognized that the better result for purposes of the
long term operation of the license revocation system would have been to hold
that an unsigned complaint that results in the lack of a formal charge for an
offense falling under West Virginia Code § 17C-5-2 similarly results in
the absence of the predicate jurisdictional basis
for instituting revocation proceedings. Had the law enforcement officer been
notified that the complaint was not lodged due to the lack of his signature,
a new complaint could have been prepared and submitted to the magistrate within
the one-year-period permitted for such offenses. In this fashion, both the
criminal system and the administrative revocation system that is uniquely dependent
on the charging of offenses under West Virginia Code § 17C-5-2 would be
better served. The alternative, which the majority chose, is to implicitly
rubberstamp shoddy police practices and to encourage the institution of administrative
charges upon potentially baseless grounds. To assume that the Legislature intended
that administrative sanctions be imposed for driving under the influence without
the attendant procedural protections that are imposed for instituting criminal
charges was certainly imprudent and clearly not in accord with the legislative
scheme adopted for the implementation of such sanctions.
Based on the foregoing, I respectfully dissent.
I am authorized to state that Justice Starcher joins me in this dissent.