                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

Everett Frazier, Commissioner,
West Virginia Division of Motor Vehicles,                                           FILED
Petitioner Below, Petitioner                                                   February 3, 2020
                                                                                EDYTHE NASH GAISER, CLERK
vs) No. 19-0056 (Kanawha County 18-AA-230)                                      SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA


Charles L. Hussing, Jr.,
Respondent Below, Respondent


                               MEMORANDUM DECISION

        Petitioner Everett Frazier, Commissioner, West Virginia Division of Motor Vehicles
(“Commissioner”), by counsel Janet E. James, appeals the Circuit Court of Kanawha County’s
December 18, 2018, final order denying petitioner’s appeal from the Office of Administrative
Hearings’s reversal of the Commissioner’s revocation of Respondent Charles L. Hussing, Jr.’s
driver’s license.1 Respondent, pro se, did not file a response before this Court.2

        The Court has considered the parties’ briefs and record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. This case satisfies the “limited circumstances” requirement of Rule 21(d) of the
Rules of Appellate Procedure and is appropriate for a memorandum decision rather than an
opinion. For the reasons expressed below, the decision of the circuit court is reversed, and this case
is remanded to the circuit court for entry of an order reversing the June 26, 2018, order from the
Office of Administrative Hearings and reinstating the revocation of respondent’s driver’s license.

         On May 6, 2011, Trooper Jason Gallaher of the West Virginia State Police was dispatched
to a single-vehicle crash on Tyrone Road in Morgantown, West Virginia. Once there, he
discovered that a red pickup truck had struck a utility pole, and while the truck’s headlights were
still on, the truck was vacant. Trooper Gallaher was approached by a woman who told him that her
brother had been the one driving the truck and that he was at her residence nearby. Shortly

       1
         At the time of the filing of the appeal in this case, Patricia S. Reed was commissioner of
the West Virginia Division of Motor Vehicles. Ms. Reed retired on April 1, 2019, and Everett
Frazier was later appointed as the commissioner. Accordingly, the appropriate party has been
substituted pursuant to Rule 41(c) of the West Virginia Rules of Appellate Procedure.
       2
          This Court entered an amended scheduling order on June 6, 2019, directing respondent
to file a brief or summary response in compliance with Rule 10 of the West Virginia Rules of
Appellate Procedure within ten days of that order. However, respondent failed to file any type of
response with this Court.
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thereafter, respondent began walking toward the officer, who noted that respondent was “having
trouble maintaining his balance,” seemed “disoriented [and] confused,” and was having “trouble
with his speech.” However, Trooper Gallaher did not smell alcohol in respondent’s breath. The
officer observed that respondent had slurred speech; “red and glassy, bloodshot” eyes; “constricted
pupils;” and he “seemed tired.” The officer asked respondent to perform field sobriety tests, and
he agreed. Respondent passed the horizontal gaze nystagmus test but failed the “walk and turn”
test and the “one-leg stand” test. On the preliminary breath test, respondent’s blood alcohol
concentration level was zero.

        Trooper Gallaher asked respondent if he had taken medication or other substances, and
respondent admitted that he had consumed marijuana earlier in the evening. The officer arrested
respondent and found a “smoking device” and small bag of what respondent admitted was
marijuana on respondent’s person. Trooper Gallaher took respondent to the hospital, and his blood
was drawn. However, no analysis of that sample was presented during the Office of Administrative
Hearings (“OAH”) proceedings. According to the circuit court, there is no indication in the record
or assertion by either party that analysis of that blood sample was ever performed.

        Petitioner revoked respondent’s driving privileges by letter dated October 30, 2013, and
respondent filed a request for a hearing with the OAH.3 That hearing was conducted on April 10,
2014, and on June 26, 2018, the OAH entered its order reversing the DMV’s order of revocation.
In that order, the OAH found that the investigating officer had an articulable reasonable suspicion
to stop and further investigate the single-vehicle accident. It also found that the officer observed
that respondent exhibited physical indicia of impairment, as well as a loss of coordination and
balance, which was considered in conjunction with respondent’s inability to successfully perform
the standardized field sobriety tests, respondent’s admission to the officer that he had smoked
marijuana earlier that day, the presence of a baggie containing a substance believed to be
marijuana, and respondent’s possession of a smoking device. That established that the officer had
reasonable grounds to believe that respondent had been driving the motor vehicle while under the
influence of controlled substances and/or drugs and that he was lawfully arrested for a DUI offense.

        The OAH went on to find that while petitioner agreed to submit to the subsequent blood
test and such blood draw was performed, “[t]he record in this matter does not include an affidavit
to establish that such test was administered by an employee medically trained and medically
authorized to draw blood and that the blood was drawn in accordance with specific State


       Respondent’s counsel below, S. Sean Murphy, filed an attachment to the request for an
       3

OAH hearing. That attachment provides as follows:

       No probable cause for stop, no probable cause for arrest, improper administration
       of field sobriety tests, no lawful grounds to submit statement of arresting officer,
       failure to timely submit statement of arresting officer, failure to advise of
       consequences to submit to designated tests, constitutional violations of right to
       remain silent, improper administration of secondary chemical tests, lack of
       evidence to support contention that Mr. Goff [sic] operated a motor vehicle under
       the influence plus all other constitutional and statutory and common law grounds
       available.
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regulations and facility procedures.” Further, it found that although the blood sample was
purportedly sent to the West Virginia State Police Forensic Laboratory for testing, almost three
years after the draw, the test result was not available. According to the OAH, “[t]he record is
further devoid of any explanation for the failure to provide the blood analysis result. Further, there
was no other evidence or testimony to establish the quantity of marijuana that [respondent] had
admittedly smoked ‘earlier’ or the level of cannabis in [respondent’s] blood.”

       The OAH determined that this Court’s holding in Reed v. Hall, 235 W. Va. 322, 733 S.E.2d
666 (2015),

       is clearly controlling in that once the [driver] agrees to submit to the [i]nvestigating
       [o]fficer’s request, and it is clear that the test will be carried out, the [driver] would
       see little incentive or understand the significance of then demanding a blood draw
       to ensure that his right to view the results of the same are protected. Therefore, it is
       the position of the Chief Hearing Examiner that an individual who voluntarily
       submits to a blood sample at the request of the Investigating Officer should be
       afforded the same due process protections as those who demand a blood test. . . .
       Given this precedent, [respondent] was denied the ability to present potentially
       exculpatory evidence of his blood and was, therefore, denied due process rights
       under West Virginia Code § 17C-5-9 when the blood sample analysis was not
       available at the time of the hearing . . . .

Thereafter, it concluded that respondent’s due process rights were violated and reversed the order
of revocation.

        On July 26, 2018, petitioner appealed the OAH’s final order to the Circuit Court of
Kanawha County. On December 18, 2018, the circuit court entered its final order denying
petitioner’s appeal. In that final order, the circuit court found that the OAH properly adjudicated
the matter and accurately applied the relevant law. Petitioner appeals from that order.

         On appeal, petitioner asserts a single of assignment of error: The circuit court erred in
rescinding the revocation of respondent’s driver’s license when the evidence showed that he was
driving under the influence of alcohol, controlled substances, or drugs. In support, petitioner argues
that no secondary chemical test is required to show that a person drove under the influence, the
circuit court improperly applied a defense not raised below, and the circuit court improperly found
that the absence of a blood test result violated respondent’s due process rights.

       1. “On appeal of an administrative order from a circuit court, this Court is bound
       by the statutory standards contained in W. Va. Code § 29A–5–4(a) and reviews
       questions of law presented de novo; findings of fact by the administrative officer
       are accorded deference unless the reviewing court believes the findings to be clearly
       wrong.” Syl. Pt. 1, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996).

       2. “In cases where the circuit court has [reversed] the result before the
       administrative agency, this Court reviews the final order of the circuit court and the
       ultimate disposition by it of an administrative law case under an abuse of discretion

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       standard and reviews questions of law de novo.” Syl. Pt. 2, Muscatell v. Cline, 196
       W.Va. 588, 474 S.E.2d 518 (1996).

Hall, 235 W. Va. at 324, 773 S.E.2d at 668, syl. pts. 1 and 2.

       West Virginia Code § 17C-5-9 (1983) provides as follows:

       Any person lawfully arrested for driving a motor vehicle in this State while under
       the influence of alcohol, controlled substances or drugs shall have the right to
       demand that a sample or specimen of his blood, breath or urine be taken within two
       hours from and after the time of arrest, and that a chemical test thereof be made.
       The analysis disclosed by such chemical test shall be made available to such
       arrested person forthwith upon demand.4

One of the key holdings of our prior cases addressing this statute is that

                “[a] person who is arrested for driving under the influence who requests and
       is entitled to a blood test, pursuant to W. Va.Code, 17C–5–9 [1983], must be given
       the opportunity, with the assistance and if necessary the direction of the arresting
       law enforcement entity, to have a blood test that insofar as possible meets the
       evidentiary standards of 17C–5–6 [1981].” Syl. Pt. 2, In re Burks, 206 W.Va. 429,
       525 S.E.2d 310 (1999).

Hall, 235 W. Va. at 324, 773 S.E.2d at 668, syl. pt. 5. In addition, “‘[t]he requirement that a driver
arrested for DUI must be given a blood test on request does not include a requirement that the
arresting officer obtain and furnish the results of that requested blood test.’ Syl. Pt. 3, In re
Burks, 206 W.Va. 429, 525 S.E.2d 310 (1999).” Hall, 235 W. Va. at 324, 773 S.E.2d at 668, syl.
pt. 6. As petitioner points out, respondent did not demand a blood test or the results of the test he
knew was performed. Therefore, petitioner argues that he was not required to provide such blood
test results to respondent. In addition, petitioner cites respondent’s counsel’s failure to argue that
respondent was entitled to those results.

       Rule 10(d) of the West Virginia Rules of Appellate Procedure provides, in relevant part, as
follows:

       The respondent must file a brief in accordance with this subsection, or a summary
       response in accordance with subsection (e) of this Rule. . . . Unless otherwise
       provided by the Court, the argument section of the respondent’s brief must
       specifically respond to each assignment of error, to the fullest extent possible. If
       the respondent’s brief fails to respond to an assignment of error, the Court will
       assume that the respondent agrees with the petitioner’s view of the issue.



       4
          This statute was amended effective July 12, 2013. However, we apply the version of the
statute in place at the time of the May 6, 2011, traffic incident that is the basis for respondent’s
license revocation and the resultant proceedings.
                                                  4
As set forth above, respondent failed to file a brief or summary response before this Court. For
these reasons, we find that the circuit court erred in affirming the OAH’s June 26, 2018, order
reversing the revocation of respondent’s driver’s license. We hereby remand this matter to the
circuit court with instructions to enter an order reinstating the revocation of respondent’s driver’s
license.

                                                                           Reversed and remanded.

ISSUED: February 3, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




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