648 S.E.2d 26
Albright, Justice:
Petitioner Mark G. Sergent, Prosecutor of Roane County, seeks a writ of
prohibition to prevent enforcement of the December 5, 2005, order of the Circuit Court of
Roane County dismissing an indictment returned against Robert Sarver for the offense of
driving with a revoked operator's license. As grounds for the dismissal, the trial court ruled
that an individual who operates an all-terrain vehicle on a public highway cannot violate the
prohibition set forth in West Virginia Code § 17B-4-3 (2004) for driving while suspended
or revoked because separate statutory provisions govern the operation of all-terrain vehicles.
Having examined the applicable statutory provisions, we conclude that the circuit court's
interpretation of the relevant statutory provisions was in error and the indictment should not
have been dismissed. Accordingly, a writ of prohibition shall issue to prohibit the
enforcement of the December 5, 2005, order of dismissal.
Mr. Sarver filed a “Motion to Clarify Law” to resolve whether an individual
who operates an all-terrain vehicle in accordance with the provisions of the newly-enacted
chapter 17F of the West Virginia Code (See footnote 1) can violate the provisions of West Virginia Code §
17B-4-3. Citing specific language in chapter 17F that negates the need for an operator's
license, Mr. Sarver argued that he could not be found to be in violation of West Virginia
Code § 17B-4-3 in connection with his operation of an all-terrain vehicle.
Upon its consideration of the motion to clarify, the trial court compared the
statutory provisions of chapter 17F with the language set forth in West Virginia Code § 17B-
4-3. In doing so, the circuit court focused on the fact that a violation of West Virginia Code
§ 17B-4-3 requires the use of “a motor vehicle on any public highway of this state.” W.Va.
Code § 17B-4-3. Because West Virginia Code § 17F-1-1(c) (2004) states that “[o]peration
of an all-terrain vehicle in accordance with subsection (b) [§ 17F-1-1(b)] (See footnote 2) shall not constitute
operation of a motor vehicle on a road or highway of this state as contemplated by the
provisions of section seven [§ 17F-1-7] (See footnote 3) of this article,” the trial court reasoned that lawful
operation of an all-terrain vehicle could not result in a violation of the driving while
suspended or revoked provisions of West Virginia Code § 17B-4-3. W.Va. Code § 17F-1-
1(c) (footnotes added). Based on this finding, the circuit court dismissed the indictment
against Mr. Sarver through its order entered on December 5, 2005. In an effort to prohibit
the enforcement of the lower court's order, Petitioner instituted this original proceeding.
In determining whether to entertain and issue the writ of
prohibition for cases not involving an absence of jurisdiction
but only where it is claimed that the lower tribunal exceeded its
legitimate powers, this Court will examine five factors: (1)
whether the party seeking the writ has no other adequate means,
such as direct appeal, to obtain the desired relief; (2) whether
the petitioner will be damaged or prejudiced in a way that is not
correctable on appeal; (3) whether the lower tribunal's order is
clearly erroneous as a matter of law; (4) whether the lower
tribunal's order is an oft repeated error or manifests persistent
disregard for either procedural or substantive law; and (5)
whether the lower tribunal's order raises new and important
problems or issues of law of first impression. These factors are
general guidelines that serve as a useful starting point for
determining whether a discretionary writ of prohibition should
issue. Although all five factors need not be satisfied, it is clear
that the third factor, the existence of clear error as a matter of
law, should be given substantial weight.
Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996). With these
standards in mind, we proceed to determine whether a writ of prohibition should issue.
The straight forward issue presented by this case is whether an individual's operation of an all-terrain vehicle on a public highway at a time when his or her operator's license has been revoked violates the provisions of West Virginia Code § 17B-4-3. In creating a distinct criminal offense for driving with a suspended or revoked license, (See footnote 4) the Legislature defined the offense as follows:
(b) Any person who drives a motor vehicle on any public
highway of this state at a time when his or her privilege to do so
has been lawfully revoked for driving under the influence of
alcohol, controlled substances or other drugs, or for driving
while having an alcoholic concentration in his or her blood of
eight hundredths of one percent or more, by weight, or for
refusing to take a secondary chemical test of blood alcohol
content, is, for the first offense, guilty of a misdemeanor . . . .
W.Va. Code § 17B-4-3 (emphasis supplied).
There is no dispute that Mr. Sarver was physically operating an all-terrain
vehicle on a public highway when observed on April 28, 2004. There is also no dispute that
the definitions provided by the Legislature clearly include an all-terrain vehicle as a motor
vehicle. See W.Va. Code § 17B-1-1(b) (1990) (Repl. Vol. 2004) (defining “motor vehicle”
as “[e]very vehicle which is self-propelled”). Finally, there is no disagreement as to the fact
that Mr. Sarver was operating an all-terrain vehicle during a period of time when his
privilege to operate a motor vehicle in this state was revoked. What is disputed is whether
the enactment of chapter 17F, which governs the operation of all-terrain vehicles in this state,
was intended to abrogate the offense of driving a motor vehicle while suspended or revoked
with regard to all-terrain vehicles.
Essentially, Mr. Sarver argues that as a later-enacted piece of specialized
legislation, the enactment of chapter 17F removed all-terrain vehicles from inclusion within
the laws that pertain to and govern the operation of motor vehicles in general. As support
for this contention, Mr. Sarver cites the language of West Virginia Code § 17F-1-1(c), which
provides that “[o]peration of an all-terrain vehicle in accordance with subsection (b) (See footnote 5) shall
not constitute operation of a motor vehicle on a road or highway of this state as contemplated
by the provisions of section seven [§ 17F-1-7] of this article.” W.Va. Code § 17F-1-1(c)
(footnote added). Disregarding the “as contemplated” language of that provision, Mr. Sarver
advocates that the Legislature intended that operation of an all-terrain vehicle in compliance
with the provisions of chapter 17F would in all circumstances preclude such vehicle's use
as “constitut[ing] operation of a motor vehicle on a road or highway of this state.” W.Va.
Code § 17F-1-1(c). Upon analysis, however, the reasoning advanced by Mr. Sarver does
not withstand scrutiny.
By omitting reference to the “as contemplated” language that immediately follows the statutory language he relies upon, Mr. Sarver suggests an expansive use of the statutory language that was not intended by the Legislature. The Legislature was clear in stating that if you comply with the provisions set forth in subsection (b) of West Virginia Code § 17F-1-1, (See footnote 6) which delineates permissible speeds, routes of travel, and times of day for the lawful operation of an all-terrain vehicle, then you are not subject to the general rules of operation that govern the use of this state's roads, which are set forth in chapter 17C, and you are not required to obtain an operator's license. See W.Va. Code § 17F-1-7. (See footnote 7)
The language upon which Mr. Sarver relies to argue that lawful operation of
an all-terrain vehicle statutorily prevents the operator from committing an offense under
West Virginia Code § 17B-4-3 clearly does not apply outside the ambit of chapter 17F. The
Legislature unambiguously stated that compliance with the provisions of subsection (b) of
West Virginia Code § 17F-1-1 statutorily prohibits the use of an all-terrain vehicle from
constituting the operation of “a motor vehicle on a road or highway of this state as
contemplated by the provisions of section seven [§ 17F-1-7] of this article.” W.Va. Code §
17F-1-1(c) (emphasis supplied). If the Legislature had intended the all-encompassing
interpretation advocated by Mr. Sarver, it stands to reason that the “as contemplated”
limitation would have been omitted from the statutory provision at issue.
By attaching undue importance to the absence of a license requirement in
connection with the lawful operation of an all-terrain vehicle, both the trial court and Mr.
Sarver overlook the fact that licensure is not the controlling factor with regard to the
commission of an offense under West Virginia Code § 17B-4-3. When the administrative
sanction of license suspension or revocation is imposed pursuant to West Virginia Code §
17C-5A-2 (2004), an individual loses both the driver's license and the privilege to operate
a motor vehicle on the public highways of this state. See W.Va. Code § 17B-1-1(p),(q).
Critically, the criminal offense at issue is not defined in terms of driving while an operator's
license is suspended or revoked, but instead in terms of the suspension or revocation of the
privilege to operate a motor vehicle on the public highways of this state. See W.Va. Code
17B-4-3(b). Rather than being determined by the need for an operator's license, the issue
before us is controlled by what the loss of an operator's license entails. With the revocation
of his operator's license, Mr. Sarver lost his privilege to operate any motor vehicle, which
includes an all-terrain vehicle, on the public highways of this state. Consequently, the loss
of his privilege to operate a motor vehicle is the critical factor that governs whether Mr.
Sarver can commit a violation of West Virginia Code § 17B-4-3(b) by his operation of an
all-terrain vehicle on the public highways of this state.
While there are obvious reasons why the Legislature would exclude all-terrain
vehicle operators from compliance with both licensing and road usage laws, there is no
countervailing argument for shielding an operator of an all-terrain vehicle from prosecution
for driving a motor vehicle while his or her operator's license has been suspended or
revoked. In fact, the opposite is true. The rationale of “remov[ing] . . . persons who drive
under the influence of alcohol and other intoxicants from our highways” which underlies the
administrative sanction of license revocation applies with equal force to individuals who
operate all-terrain vehicles. Shell v. Bechtold, 175 W.Va. 792, 796, 338 S.E.2d 393, 396
(1985). As we explained in State ex rel. Hall v. Schlaegel, 202 W.Va. 93, 502 S.E.2d 190
(1998),
[t]his objective of removing substance-affected drivers from our
roads in the interest of promoting safety and saving lives is
consistent “with the general intent of our traffic laws to protect
the innocent public.” . . . We observe that the Legislature's
inclusion of a separately-designated criminal offense for driving
while license revoked for DUI is indicative of the societal
importance attached to removing such motorists from our
roadways. See W.Va. Code § 17B-4-3(b).
202 W.Va. at 97, 502 S.E.2d at 194 (some citations omitted). As the amicus curiae (See footnote 8) observes, “[i]t is neither logical nor in the interests of the public that a person whose
privilege to drive is revoked for DUI should be allowed to drive an ATV on a public
roadway.” We agree.
Based on our conclusion that there is no language in chapter 17F that explicitly
removes the use of an all-terrain vehicle from the reach of West Virginia Code § 17B-4-3
and because license revocation involves both the loss of a driver's license and the privilege
to operate a motor vehicle, we hold that an individual who operates an all-terrain vehicle on
a public highway of this state may be prosecuted for committing the offense of driving while
suspended or revoked under the provisions of West Virginia Code § 17B-4-3. Accordingly,
we determine that a writ of prohibition shall issue to prohibit enforcement of the December
5, 2005, order of the Circuit Court of Roane County dismissing the indictment against Mr.
Sarver for an alleged violation of West Virginia Code § 17B-4-3(b).
(b) An all-terrain vehicle may, for the sole purpose of
getting from one trail, field or area of operation to another, be
operated upon the shoulder of any road, street or highway
referred to in subdivision (2), subsection (a) of this section,
other than an interstate highway, for a distance not to exceed ten
miles, if:
(1) The vehicle is operated at speeds of twenty-five miles
per hour or less; and
(2) The vehicle is operated at any time from sunset to
sunrise, the all-terrain vehicle must be equipped with headlights
and taillights which must be illuminated.
W.Va. Code § 17F-1-1(b).