          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                    January 2018 Term                         FILED
                                    _______________                        April 26, 2018
                                                                             released at 3:00 p.m.
                                                                         EDYTHE NASH GAISER, CLERK
                                      No. 17-0174                        SUPREME COURT OF APPEALS
                                    _______________                           OF WEST VIRGINIA



 PAT REED, COMMISSIONER OF THE WEST VIRGINIA DIVISION OF MOTOR 

                           VEHICLES, 

                    Respondent Below, Petitioner, 


                                            v.

                                     BRIAN A. BOLEY,
                               Petitioner Below, Respondent.

       ____________________________________________________________

                  Appeal from the Circuit Court of Pleasants County 

                    The Honorable Timothy L. Sweeney, Judge 

                             Civil Action No. 15-P-21 


                           REVERSED AND REMANDED

       ____________________________________________________________

                                 Submitted: March 6, 2018
                                   Filed: April 26, 2018

Patrick Morrisey, Esq.                           George J. Cosenza, Esq. 

Attorney General                                 GEORGE J. COSENZA, PLLC 

Janet E. James, Esq.                             Parkersburg, West Virginia 

Assistant Attorney General                       Counsel for the Respondent 

Charleston, West Virginia 

Counsel for the Petitioner 



JUSTICE WALKER delivered the Opinion of the Court.

JUSTICE KETCHUM dissents and reserves the right to file a dissenting opinion.
                               SYLLABUS BY THE COURT 



              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).” Syllabus Point 1,

Straub v. Reed, 239 W. Va. 844, 806 S.E.2d 768 (2017).



              2.      “In cases where the circuit court has amended 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.” Syllabus Point 2, Muscatell v. Cline, 196

W. Va. 588, 474 S.E.2d 518 (1996).




              3.      “On appeal to the circuit court from an order of the Office of

Administrative Hearings affirming the revocation of a party’s license to operate a motor

vehicle in this State, when the party asserts that his or her constitutional right to due process

has been violated by a delay in the issuance of the order by the Office of Administrative

Hearings, the party must demonstrate that he or she has suffered actual and substantial

prejudice as a result of the delay. Once actual and substantial prejudice from the delay has



                                                i
been proven, the circuit court must then balance the resulting prejudice against the reasons


for the delay.” Syllabus Point 2, Reed v. Staffileno, 239 W. Va. 538, 803 S.E.2d 508 (2017).





                                             ii 

WALKER, JUSTICE:


              After he was arrested for driving under the influence of alcohol (DUI), Brian

Boley’s driver’s license was revoked by the Commissioner of the West Virginia Division

of Motor Vehicles (DMV) in August 2011. Mr. Boley challenged the revocation by appeal

to the Office of Administrative Hearings (OAH), which conducted a hearing in May 2013

but then took no action for two and a half years; eventually, the OAH affirmed the

revocation in November 2015. The circuit court subsequently reversed the revocation on

the grounds that Mr. Boley suffered actual and substantial prejudice as a result of the long

delay by the OAH and that the DMV had offered no justifiable reason for the delayed

decision. The DMV contends, among other things, that the circuit court erred in finding

that Mr. Boley suffered actual and substantial prejudice as a result of the post-hearing delay

by the OAH. We agree and reverse the circuit court’s order and remand this case for the

reinstatement of the DMV’s revocation order.



                I. FACTUAL AND PROCEDURAL BACKGROUND

              On August 11, 2011, Mr. Boley failed to stop at a stop sign and was pulled

over by Sr. Trooper B. L. Meeks of the West Virginia State Police. While speaking with

Mr. Boley, Trooper Meeks noticed the odor of alcohol on Mr. Boley’s breath and observed

that Mr. Boley’s speech was slurred and hesitant and that his eyes were bloodshot and

glassy. Mr. Boley admitted that he had consumed “a few beers.” Trooper Meeks

administered three field sobriety tests and a preliminary breath test upon Mr. Boley. Mr.

Boley failed each test and was arrested for DUI. After his arrest, Mr. Boley consented to
                                            1

a secondary chemical test of the breath, which showed a blood alcohol content of .097. Mr.

Boley held a Class A commercial driver’s license at the time of his arrest.



              On August 16, 2011, the DMV received the DUI information sheet related

to Mr. Boley’s arrest, and on August 23, 2011, the DMV issued an order of revocation.

Mr. Boley requested a hearing with the OAH. In his written objection to the revocation

order, Mr. Boley argued that Trooper Meeks did not have articulable reasonable suspicion

to stop Mr. Boley’s vehicle or probable cause to arrest him. Mr. Boley further argued that

Trooper Meeks failed to administer the field sobriety tests in strict compliance with

standard criminal procedure and that the standard chemical test administered to Mr. Boley

was not done in accordance with Department of Health regulations or West Virginia law.

Mr. Boley’s hearing was initially set for January 11, 2012. However, at the request of Mr.

Boley’s counsel, the hearing before the OAH was continued and rescheduled twice, once

for a scheduling conflict of Mr. Boley’s counsel and once due to the unavailability of a

necessary witness. Mr. Boley’s counsel made a third request for continuation of the

hearing, which was denied by the OAH.



              The OAH hearing ultimately took place on May 9, 2013. Mr. Boley testified

that his preliminary and secondary chemical breath tests were affected because he had

smokeless tobacco in his mouth at the time of the vehicle stop and did not remove the

tobacco until he was at the regional jail. On November 10, 2015, the OAH entered its


                                             2

decision affirming the revocation of Mr. Boley’s driver’s license finding that “[Mr. Boley],

while the holder of a commercial driver’s license, drove a motor vehicle in this state under

the influence of alcohol.” The OAH found that the reliability of Mr. Boley’s testimony

regarding his use of smokeless tobacco at the time of the vehicle stop was “questionable at

best,” but even if accurate, “would not affect the disposition of the case” as the remainder

of the evidence was sufficient to prove that Mr. Boley was driving under the influence.



              Mr. Boley appealed the OAH decision to the Circuit Court of Pleasants

County. At his hearing on October 28, 2016, Mr. Boley’s counsel asserted that as a

commercial truck driver with limited education and limited alternative employment

opportunities, he was prejudiced by the two-and-a-half year delay in the issuance of the

OAH’s order. He also asserted that due to the delay, Mr. Boley did not make any

contingency plans, such as attempting to find a job that would not require him to drive,

because he believed that the OAH had forgotten about his case and would not revoke his

license. The DMV countered that under the decisions of this Court, Mr. Boley was required

to show that the delay prejudiced him in his ability to defend himself in the license

revocation proceedings in order to prove actual and substantial prejudice. The DMV also

asserted that the OAH, which was not joined as a party, was a separate entity responsible

for the delay in entering the order. The circuit court stayed the revocation of Mr. Boley’s

driver’s license for a period of 150 days.




                                             3

                 By order dated January 17, 2017, the circuit court vacated the OAH’s

revocation order and reinstated Mr. Boley’s driver’s license. Noting Mr. Boley’s limited

education and limited alternative employment offers, the circuit court held that such delay

was actually and substantially prejudicial to Mr. Boley “due to the uncertainty created by

such delay upon one’s ability to avoid prejudice as a result of a prospective suspension”

and that any revocation “has and will cause [Mr. Boley] and his family to suffer

considerable hardship.” The circuit court also found that the DMV offered “no explanation

or justifiable reason for [the two and one-half year] delay in” the issuance of the OAH’s

decision and presented no evidence contesting the court’s findings regarding Mr. Boley’s

limitations and resulting hardship. It is from the circuit court’s order that the DMV now

appeals.



                                II. STANDARD OF REVIEW

                 With respect to the applicable standard of review, we recently confirmed

that:

                 “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).[1]




        1
            Syl. Pt. 1, Straub v. Reed, 239 W. Va. 844, 806 S.E.2d 768 (2017).

                                                4

Moreover, “[i]n cases where the circuit court has amended 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.”2 With these standards in mind, we review

the parties’ arguments.



                                      III. ANALYSIS

                We first address the DMV’s assertion that the circuit court erred in finding

that the OAH’s two-and-a-half year delay in issuing a final decision was prejudicial to Mr.

Boley. While the statutes governing revocation proceedings before the OAH do not impose

time constraints on the issuance of decisions by that agency following an administrative

hearing,3 this Court has long recognized the constitutional mandate that “‘justice shall be

administered without . . . delay.’ W. Va. Const. Art. III, § 17.”4 We further have recognized

that “administrative agencies performing quasi-judicial functions have an affirmative duty

to dispose promptly of matters properly submitted.”5




       2
           Syl. Pt. 2, Muscatell v. Cline, 196 W. Va. 588, 474 S.E.2d 518 (1996).

       3
        See W. Va. Code §§17C-5C-1 through 17C-5C-5 (2017), and W. Va. C.S.R. §§ 1-
1 through 1-18.
       4
           Frantz v. Palmer, 211 W.Va. 188, 192, 564 S.E.2d 398, 402 (2001).
       5
        Syl. Pt. 7, in part, Allen v. State Human Rights Comm’n, 174 W.Va. 139, 324
S.E.2d 99 (1984).

                                              5

                 In Miller v. Moredock,6 an appeal by the DMV from a circuit court order

reversing the suspension of the respondent’s driver’s license for DUI following a

seventeen-month delay between the administrative hearing and entry of the final order of

revocation, the circuit court had found that such a delay was “presumptively” prejudicial.

In that case, the DMV argued “that the circuit court failed to find that [respondent] suffered

any actual prejudice as a result of the delay and that, absent such a finding, the revocation

order should have been affirmed.”7 We set out the following standard in Miller for

determining prejudice from a delay in the issuance of a revocation order after a hearing had

been held:

                 On appeal to the circuit court from an order revoking a party’s
                 license to operate a motor vehicle in this State, when the party
                 asserts that his constitutional right to due process has been
                 violated by a delay in the issuance of the revocation order by
                 the Commissioner of the Division of Motor Vehicles, he must
                 demonstrate that he has suffered actual and substantial
                 prejudice as a result of the delay. Once actual and substantial
                 prejudice from the delay has been proven, the circuit court
                 must then balance the resulting prejudice against the reasons
                 for the delay.[8]




       6
           229 W. Va. 66, 70, 726 S.E.2d 34, 38 (2011).
       7
           Id.
       8
           Id. at Syl. Pt. 5.

                                                6

                Subsequently, in Reed v. Staffileno,9 we addressed the issue of whether the

petitioner suffered actual and substantial prejudice as a result of a post-hearing delay of

three years before a decision was issued. Because Miller was decided under the prior

administrative review system controlled by the DMV10, we modified Syllabus Point 5 of

Miller to reflect the current administrative system and held that:

                On appeal to the circuit court from an order of the Office of
                Administrative Hearings affirming the revocation of a party’s
                license to operate a motor vehicle in this State, when the party
                asserts that his or her constitutional right to due process has
                been violated by a delay in the issuance of the order by the
                Office of Administrative Hearings, the party must demonstrate
                that he or she has suffered actual and substantial prejudice as a
                result of the delay. Once actual and substantial prejudice from
                the delay has been proven, the circuit court must then balance
                the resulting prejudice against the reasons for the delay.[11]



In rejecting the DMV’s assertion that the respondent in Staffileno was entitled to relief only

if he established that his ability to defend himself was compromised, we determined that

the application of such a standard was only appropriate when a party challenges a pre-

hearing delay.12 In so finding, we reasoned:

                In the context of a delay in issuing an order after a hearing had
                been held, the issue of prejudice necessarily involves prejudice

       9
           239 W. Va. 538, 803 S.E.2d 508 (2017).
       10
        The OAH was created to hear appeals of DUI matters pursuant to West Virginia
Code § 17C-5C-5, effective June 11, 2010.
       11
            Syl. Pt. 2, Staffileno, 239 W. Va. 538, 803 S.E.2d 508.
       12
            Id. at __, 803 S.E.2d at 513.

                                               7

                to a party that occurred after the hearing was held. As a
                general matter, under Miller the standard for post-hearing
                prejudice will ordinarily involve some type of change in a
                party’s circumstances that may have been substantially
                prejudiced because of the delay in issuing a final order by
                OAH.[13]



                In Staffileno, we determined that an accountant who retired following his

revocation hearing and became a bus driver had suffered actual and substantial prejudice

as a result of the delay. We concluded that the circuit court had properly determined that

the petitioner would not have retired and changed his employment if OAH had issued a

timely decision.14 As required by Miller, we then balanced the resulting prejudice to

respondent against the reason for the delay by the OAH and held that “[i]n light of the

evidence establishing prejudice from the delay in issuing the order and the absence of any

evidence showing the reason for the delay, we find no basis to disturb the circuit court’s

decision on that . . . issue.”15




       13
            Id. (emphasis added).
       14
            Id. at __, 803 S.E.2d at 513-14.
       15
          Id. at __, 803 S.E.2d at 514. The DMV made the same arguments in Staffileno
that it does here, asserting that it is a separate entity from OAH and thus not responsible
for the delay. However, we stated that “while we can appreciate DMV’s efforts to
disassociate itself with causing the delay, ultimately the burden was upon it to inform the
circuit court and this Court of the possible reason for the delay.” Id. (emphasis added).

                                               8

               In concluding that prejudice existed in Staffileno, we specifically

distinguished our prior decision in Warner v. Reed,16 where one of the issues raised by the

driver, who maintained a CDL license, was that he was prejudiced by a two-year delay

between the time that his administrative hearing was held and the issuance of the order

revoking his license.17 We rejected the driver’s argument in Warner because he failed to

present any evidence of prejudice from the delay in issuing the revocation order:

               Finally, the Court similarly finds no violation of petitioner’s
               due process rights in the approximately two-year delay
               between the administrative hearing and the issuance of the
               order revoking petitioner’s license. In support of this
               assignment of error, petitioner alleges only that this delay
               caused him prejudice because the matter was transferred from
               the hearing examiner who actually presided over his hearing
               to another hearing examiner who later entered the order
               revoking his license. According to petitioner, even if the
               original examiner had drafter [sic] the order, the delay likely
               would have caused her to be unable to recall crucial elements
               of his case. We note, however, that petitioner provides no
               evidence to support this claim. We further find that, while the
               DMV did engage in an unnecessarily long delay in issuing the
               order, there is no evidence in the record that the hearing
               examiner would have made different findings if the order had
               been entered sooner. For these reasons, given the specific facts
               of this case, we find that the delay between the hearing and the
               issuance of the order revoking petitioner’s license did not
               constitute a violation of his due process rights.[18]




      16
           No. 15-0229, 2016 WL 870614 (W. Va. Mar. 7, 2016) (memorandum decision). 

      17
           Staffileno, 239 W. Va. at __, 803 S.E.2d at 514.

      18
           Warner, 2016 WL 870614, at *6 (emphasis added). 


                                              9

                 Subsequently, in Straub v. Reed,19 we held that that a pharmaceutical sales

representative failed to establish that an eleven-month delay in the issuance of his license

revocation order by the OAH resulted in actual and substantial prejudice. In that case, the

petitioner testified that his employer regularly issued notices of potential layoffs and that,

although he kept his job during the course of the proceedings, he attempted to secure other

employment but was denied jobs based upon his potential license revocation.20 The DMV

made the same arguments it makes in this case regarding its lack of control over the delay

by the OAH. Citing our holding in Staffileno, we rejected the DMV’s argument on this

issue and instead focused our analysis on whether the driver demonstrated actual and

substantial prejudice.21 We declined to grant the petitioner relief because he could identify

“no actual and substantial prejudice, e.g., some type of detrimental change in his

circumstances, related to the delay in OAH issuing its final order.”22



                DMV asserts, and we agree, that the facts of this case are akin to Straub with

respect to the issue of whether the circuit court erred in finding that Mr. Boley has

established actual and substantial prejudice as a result of the delay.23 Here, Mr. Boley has


       19
            239 W. Va. 844, __, 806 S.E.2d 768, 775 (2017).

       20
            Id. at __, 806 S.E.2d at 771. 

       21
            Straub, 239 W. Va. at __, 806 S.E.2d at 775. 

       22
            Id. (emphasis added). 

       23
          During oral argument, DMV asserted that the circuit court’s finding of prejudice

as a result of the delay was erroneous under our recent decision in Straub, which was filed
                                            10 

not actually alleged “some type of detrimental change in his circumstances, related to the

delay in OAH issuing its final order.”24 Rather, before the circuit court, Mr. Boley simply

asserted that as a commercial truck driver with limited education and limited employment

opportunities other than driving in the construction or trucking industry, he was prejudiced

by the two and a half year delay in the issuance of the OAH’s order. When the circuit court

asked Mr. Boley’s counsel whether he would still suffer the same prejudice even if the

OAH had entered the order in a timely fashion, Mr. Boley’s counsel stated:

                  He might have but the point is when he did not hear from them
                  for so long he then – again, there was no reason for him to
                  believe that he had to make a contingency plan for that
                  ultimately happening. Two and a half years go by and the facts
                  in the Moredock case are kind of similar to this, so, yeah. . . .
                  he might have lost his license and he could have appealed that
                  decision here just like he did now, but again, his case is
                  dismissed in magistrate court so the charges are dropped.
                  There’s no DUI.

                                                ....

                  [W]hat I’m trying to do is get you into his head. In other words,
                  “Look, okay. The case against me in magistrate court is
                  dismissed. I don’t have a DUI. Now I don’t hear from these
                  guys for two and a half years. I’m not going to worry about it.
                  I’m not going to have my wife try to find a job or me try to find
                  another job that does not require me driving or try to find some
                  way to support my family. My guess is they’ve forgotten about
                  me. They are not going to take my license. I’m not going to
                  make those contingency plans and, bang, here it comes in the
                  mail and I’m suspended.


after DMV submitted its brief to the Court in this case. We agree with the DMV that Straub
is instructive with respect to the circumstances before us now.
       24
            Id.

                                                 11 

              Mr. Boley’s assertion that he did not make any contingency plans, such as

attempting to find a job that would not require him to drive, because he believed that the

OAH had forgotten about his case and would not revoke his license is unavailing. Mr.

Boley has not specifically identified some type of detrimental change in his circumstances

that was related to the delay in OAH issuing its final order itself, like the circumstances

before us in Staffileno, and thus, we conclude that the circuit court’s finding of prejudice

was erroneous. Accordingly, we reverse the circuit court’s order.25



                                  IV. CONCLUSION

              For these reasons, we reverse the Circuit Court of Pleasants County’s January

17, 2017 order and remand for reinstatement of the DMV’s order revoking Mr. Boley’s

driver’s license.

                                                                 Reversed and Remanded.




       25
       Because we reverse the circuit court’s order on this basis, we need not address
DMV’s remaining assignments of error.

                                            12 

