                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Patricia Reed, Commissioner of the
West Virginia Division of Motor Vehicles                                            FILED
Respondent Below, Petitioner                                                   September 18, 2015
                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
vs) No. 14-1018 (Kanawha County 14-AA-45)                                        OF WEST VIRGINIA


Desiree Divita,

Petitioner Below, Respondent



                              MEMORANDUM DECISION
        Petitioner Patricia Reed, Commissioner of the West Virginia Division of Motor Vehicles
(hereinafter “the DMV”), by counsel Janet E. James, appeals the August 29, 2014, order of the
Circuit Court of Kanawha County, which reversed the final order of the DMV that revoked
respondent’s driver’s license for driving under the influence of controlled substances (hereinafter
“DUI”).1 Respondent Desiree Divita, by counsel David Pence, filed a response. The DMV filed a
reply.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        At 12:05 a.m. on November 13, 2010, Sgt. Larry O’Bryan of the West Virginia State
Police initiated a traffic stop on respondent’s vehicle on I-64 east. Sgt. O’Bryan noted that
respondent’s vehicle was weaving, driving on the shoulder and almost struck a guardrail.
Respondent testified that she dropped her cell phone on the floor near the accelerator of her
vehicle which caused her to jerk the steering wheel. According to the testimony of Sgt. O’Bryan,
during the stop, as respondent pulled her driver’s license from her purse, Sgt. O’Bryan saw in
plain view a plastic baggie in her purse containing pills. He then had respondent exit her vehicle.

        Sgt. O’Bryan testified that respondent’s speech was slurred and that she seemed confused
about the traffic stop. Sgt. O’Bryan asked respondent to place her purse on the trunk of the car,
and then proceeded to search it. Sgt. O’Bryan discovered 13 alprazolam pills and 15 oxycodone
pills in respondent’s purse. He then placed respondent under arrest. At the detachment, Sgt.

       1
         Pursuant to Rule 41(c) of the West Virginia Rules of Appellate Procedure, we have
replaced the original Respondent, Steven O. Dale, with Patricia Reed, who is the current Acting
Commissioner of the West Virginia Division of Motor Vehicles.
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O’Bryan asked respondent to perform the walk and turn and one leg stand test. Respondent
willingly complied and failed both tests.

         Respondent and Sgt. O’Bryan requested to have respondent’s blood drawn. A blood
sample was taken and Sgt. O’Bryan submitted the blood sample to the West Virginia State Police
Lab, where the sample was tested for alcohol only, the results of which were negative, as
memorialized in a May 4, 2010, letter from the West Virginia State Police Lab. A Forensic
Laboratory Report dated January 24, 2011, memorialized that “[p]ursuant to the conversation
with Sgt. Larry O’Bryan on December 6, 2010, all items of evidence in this case are being
returned prior to Toxicology Drug Analysis. If events should require testing of these samples,
please resubmit them to the laboratory.” The sample was subsequently returned to Sgt. O’Bryan
who destroyed the blood sample, without informing petitioner, respondent’s counsel, or the
court. Sgt. O’Bryan testified that he ordered the sample destroyed at the conclusion of the
criminal case, but before the administrative hearing, and that he destroyed the sample rather than
preserve it because the State Police Lab temporarily lost its accreditation to do forensic blood
testing.

        After the administrative hearing, an order was entered effective May 12, 2014, that
affirmed the revocation of respondent’s license for driving under the influence of a controlled
substance. The hearing examiner found that in spite of the lack of blood results, there was
sufficient evidence to show that respondent was driving under the influence of controlled
substances, finding “the question is not about a blood test.”

        Respondent appealed that order to the Circuit Court of Kanawha County. The circuit
court held that the hearing examiner’s failure to address the spoliation of evidence was arbitrary,
capricious, and clearly wrong; reversed the order of the DMV and dismissed the matter.
Overruling the final order issued by the Commissioner, the circuit court found that Sgt. O’Bryan
never requested that the blood sample be tested for controlled substances, nor did he send the
sample to an out of state laboratory or preserve the blood sample for future testing, and that his
actions violated respondent’s right to due process. The DMV appeals the August 29, 2014, order
of the Circuit Court of Kanawha County which reversed the ruling of the hearing examiner, and
reversed the revocation of respondent’s driver’s license.

       This Court has previously established the standard of review of a circuit court’s order
deciding an administrative appeal as follows:

               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). Further, “[i]n 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 standard and reviews questions of law de novo.” Syl. pt. 2, id.

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         Petitioner asserts that the circuit court erred because the lack of toxicological analysis is
not a basis for the reversal of the revocation.2 Relying upon this Court’s holding in syllabus point
three of In re Burks, 206 W.Va. 429, 525 S.E.2d 310 (1999), in which we held, “[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[,]” petitioner argues that since respondent made no effort to obtain the results for the
analysis, and was not precluded from securing an independent test upon the blood sample, that
the lack of toxicological analysis is not relevant, and that other evidence in the record should be
relied upon for the revocation of respondent’s license. Respondent argues that she had no reason
to believe that the sample would not be tested, or that the Lab would not protect her blood
sample and have the results at her administrative hearing, and that she was denied due process.

       “Due process of law, within the meaning of the State and Federal constitutional
provisions, extends to actions of administrative officers and tribunals, as well as to the judicial
branches of the governments. Syl. pt. 2, State ex rel. Ellis v. Kelly, 145 W.Va. 70, 112 S.E.2d
641 (1960).” Syl. Pt. 1, McJunkin Corp. v. West Virginia Human Rights Commission, 179
W.Va. 417, 369 S.E.2d 720 (1988). According to West Virginia Code § 17C-5-9(1983),

       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.

(Emphasis added) Further, pursuant to West Virginia Code § 17C-5A-1(b), in part, an officer’s
DUI arrest report submitted to the DMV “shall 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.”

        In Reed v. Hall, 235 W.Va. 322, 773 S.E.2d 666 (2015), a driver was denied the results of
his blood test at his administrative hearing after the arresting officer neglected to submit the
sample to the West Virginia State Police Lab for testing. Distinguishing Burks, we held that
“[t]his Court’s holding in Burks was simply that the police officer did not have the obligation to
“obtain the results” of the blood test. In other words, those results of the completed blood test
were available to the driver, and the failure of the driver to obtain those results was not
attributable to police inaction.” Hall, 235 W.Va. at ___, 773 S.E.2d at 676 (internal citations
omitted). As a result, we found that the driver was denied the statutory and due process rights,
under West Virginia Code § 17C-5-9, to have his blood tested independently.

       In the case sub judice, as in Hall, the investigating officer complied with one part of West
Virginia Code § 17C-5-9. That is, respondent and the investigating officer requested a blood test,

       2
          Petitioner also asserts that there was no conflict in the evidence, that there was no
spoliation of evidence, and that the record supports the revocation of respondent’s driver’s
license for driving under the influence. As this matter is resolved on other grounds, we decline to
address those assignments of error at this time.
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and the test was administered. However, as in Hall, the statute is not satisfied as the blood
sample was destroyed at the investigating officer’s request before the sample was tested for
controlled substances. Importantly, the blood sample was within the officer’s complete dominion
and control. See Hall, 235 W.Va. at ___, 773 S.E.2d at 675. As we cautioned in Burks, “[o]f
course, the arresting officer cannot pose an impediment to the driver’s obtaining the results of
and information about the test.” Burks, 206 W.Va. at 433, 525 S.E.2d at 314 (1999).

       Here, the investigating officer’s actions certainly served as an impediment to
respondent’s ability to obtain the results of her blood sample. The officer did not simply fail to
submit the blood sample to the lab, but after the submission of the sample, requested that the
sample be returned without toxicology analysis and then had the sample destroyed. Respondent
was not only unable to receive the results of any toxicological analysis from the West Virginia
State Police Lab, but was also prevented from securing her own independent test of the blood
sample. It is clear under these circumstances that due to the actions of the officer, respondent was
denied her statutory and due process rights under West Virginia Code § 17C-5-9.

        Petitioner argues further that our holding in Hall contravenes this Court’s oft-stated
holding that there is no statutory requirement that proof of a motorist driving under the influence
of alcohol be established by secondary chemical test results. See Syl. Pt. 1, Albrecht v. State, 173
W.Va. 268, 314 S.E.2d 859 (1984). We agree that West Virginia Code § 17C-5-9 clearly does
not require a blood test, and have even acknowledged that “[u]nder the Code law enforcement
officers are under no duty to inform the defendant of his right to additional tests.” State v. York,
175 W.Va. 740, 741, 338 S.E.2d 219, 221 (1985). However, this Court previously recognized the
implications when a DUI suspect requests a blood test and is denied,

                W.Va. Code § 17C-5-9 accords an individual arrested for driving under
       the influence of alcohol, controlled substances, or drugs a right to demand and
       receive a blood test within two hours of his arrest. Furthermore, this statutory
       right is hardly a new development. Historically, one charged with intoxication has
       enjoyed a constitutional right to summon a physician at his own expense to
       conduct a test for alcohol in his system. To deny this right would be to deny due
       process of law because such a denial would bar the accused from obtaining
       evidence necessary to his defense. . . . The defendant’s right to request and
       receive a blood test is an important procedural right that goes directly to a court's
       truth-finding function.

Id. (citations omitted) (emphasis added).

        Consequently, we find that the circuit court did not err in reversing the order of the DMV,
and affirm the circuit court’s finding that the actions of the investigating officer imposed a
significant impediment to respondent’s ability to test the blood sample and violated her statutory
and due process rights.

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.


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ISSUED: September 18, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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