          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                 September 2017 Term

                                                                        FILED
                                     No. 16-0996                    November 1, 2017
                                                                         released at 3:00 p.m.
                                                                     EDYTHE NASH GAISER, CLERK
                                                                     SUPREME COURT OF APPEALS
                                                                          OF WEST VIRGINIA

                                 JERRY S. STRAUB,
                                     Petitioner

                                          v.

                            PAT S. REED, COMMISSIONER,
                            WEST VIRGINIA DIVISION OF
                                 MOTOR VEHICLES,
                                     Respondent



                   Appeal from the Circuit Court of Cabell County
                      The Honorable F. Jane Hustead, Judge
                                Case No. 16-C-274

                                     AFFIRMED


                              Submitted: October 11, 2017
                               Filed: November 1, 2017



R. Lee Booten, II, Esq.                        Patrick Morrisey, Esq.
Huntington, West Virginia                      Attorney General
Attorney for Petitioner                        Janet E. James, Esq.
                                               Assistant Attorney General
                                               Charleston, West Virginia
                                               Attorneys for Respondent

JUSTICE WORKMAN 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).



              2.     “A driver’s license is a property interest and such interest is entitled

to protection under the Due Process Clause of the West Virginia Constitution.” Syl. Pt. 1,

Abshire v. Cline, 193 W.Va. 180, 455 S.E.2d 549 (1995).



              3.     “‘A law enforcement officer’s failure to strictly comply with the

DUI arrest reporting time requirements of W.Va. Code, 17C-5A-l(b) [1994] is not a bar or

impediment to the commissioner of the Division of Motor Vehicles taking administrative

action based on the arrest report, unless there is actual prejudice to the driver as a result

of such failure.’ Syllabus point 1, In re Burks, 206 W.Va. 429, 525 S.E.2d 310 (1999).”

Syl. Pt. 3, Carpenter v. Cicchirillo, 222 W.Va. 66, 662 S.E.2d 508 (2008).



              4.     “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

                                              i
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.” Syl. Pt. 2, Reed v. Staffileno, __ W.Va. __,

803 S.E.2d 508 (2017).




                                            ii
WORKMAN, Justice:

              Nearly two years after Petitioner Jerry S. Straub was arrested for driving

under the influence of alcohol (“DUI”), Respondent Pat S. Reed, Commissioner of the

West Virginia Division of Motor Vehicles (hereinafter the “DMV”), issued an order

revoking his driver’s license. On appeal, the Office of Administrative Hearings (the

“OAH”), affirmed the license revocation. The circuit court upheld that decision.



              On appeal to this Court, Mr. Straub’s primary contention is that the

procedural delays were so unreasonably excessive they violated his constitutional due

process rights. Based upon our review of the briefs, legal authorities, appendix record,

and upon consideration of arguments of counsel, this Court finds no merit to his

arguments. Therefore, we affirm the order of the circuit court.



                     I.     FACTS AND PROCEDURAL HISTORY

              A police officer with the Ceredo, West Virginia, Police Department

arrested Mr. Straub for DUI on January 9, 2011. The officer initiated the traffic stop at

approximately 3:00 a.m., after he observed Mr. Straub backing his vehicle into oncoming

traffic and almost striking another vehicle. The officer smelled alcohol on Mr. Straub’s

breath and noticed his eyes were glassy and bloodshot. Mr. Straub admitted to drinking;

he told the officer that he had consumed six to eight beers that evening. Mr. Straub failed

a preliminary breath test, and the results of the secondary chemical test showed his blood

alcohol concentration level was 0.107%.

                                             1
              Mr. Straub appeared, pro se, before the City of Ceredo Municipal Court on

March 10, 2011, and his misdemeanor DUI charge was dismissed.



              For reasons not explained in the record, the DMV maintains that it did not

receive the DUI Information Sheet from the arresting officer until November 27, 2012.

The DMV issued an order revoking Mr. Straub’s driving privileges on December 18,

2012. Thereafter, Mr. Straub requested a hearing with the OAH to challenge the

revocation.



              Following several continuances for various reasons, the administrative

hearing eventually took place before a hearing examiner on March 10, 2015.1 The police

officer testified about the events surrounding the arrest. When he testified, Mr. Straub did

not dispute the fact that he was driving while intoxicated. Rather, Mr. Straub testified that

he felt prejudiced by the delay of the revocation order being issued over twenty-three

months from the time of his arrest, and the incident then being over four years old. Mr.

Straub testified that he was employed as a pharmaceutical sales representative, and his

employer issued notices of potential layoffs regularly. He further testified that during the

time frame between his arrest for DUI and the administrative hearing, he attempted to

secure other employment. Mr. Straub claimed that he was interviewed by recruiters, but


       1
         During that time, four hearings were scheduled and continued: the first upon Mr.
Straub’s motion for continuance, the second for failure of the officer to appear, the third
on the hearing examiner’s sua sponte motion, and the fourth due to Mr. Straub’s motion
for continuance.

                                             2
once they learned that his driver’s license could possibly be revoked, the recruiters would

no longer continue his job search. Fortunately, Mr. Straub’s employer did not lay him off

and he continued working while the matter was pending. At the administrative hearing,

Mr. Straub’s counsel moved to dismiss the case based on the procedural delays.



              On February 22, 2016, the OAH issued the decision of the hearing

examiner which was adopted by the final order of the chief hearing examiner. The OAH

found that Mr. Straub drove a motor vehicle while under the influence of alcohol on

January 9, 2011. It ordered Mr. Straub’s driver’s license revoked under West Virginia

Code § 17C-5A-2(j) (2013). The OAH did not address Mr. Straub’s arguments regarding

procedural delays; it noted the OAH “does not have jurisdiction to deal with issues of

timing and delay.”



              Mr. Straub appealed the OAH order to the circuit court and requested a stay

of the revocation order pending that appeal pursuant to West Virginia Code § 17C-5A-

2(s) (2013). The circuit court held a hearing on the matter and granted Mr. Straub’s

motion for stay.2 By order entered October 21, 2016, the circuit court affirmed the OAH

order, finding no merit to Mr. Straub’s arguments.




       2
        At this hearing, the DMV moved to dismiss the matter on jurisdictional grounds,
and argued that it was not an appeal of a “contested case” pursuant to West Virginia Code
§ 29A-5-4 (2015), because Mr. Straub did not contest the fact he was driving under the
influence. The DMV asserted that Mr. Straub’s appeal was akin to a request for the
(continued . . .)
                                            3
              Mr. Straub filed this appeal, and presented a motion to stay the circuit

court’s order pending our appeal. On November 1, 2016, this Court granted this motion.



                             II.    STANDARD OF REVIEW

              This Court has held that

                      [o]n 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). With these

standards in mind, we proceed to the merits of this appeal.



                                    III.   DISCUSSION

              Mr. Straub raises four separate, but largely interconnected, assignments of

error on the subject of procedural delays. In the interest of brevity, we address the related

issues in the context of his core argument. Mr. Straub asserts that the delays in the

administrative proceedings violated his constitutional rights guaranteed by the Fifth




extraordinary relief of rescission of a license revocation based upon delay in the
administrative proceedings. The circuit court denied the DMV’s motion. This issue is not
squarely before the Court.

                                             4
Amendment to the United States Constitution and Article III, section 10 and section 17 of

the West Virginia Constitution.3



Delays and Procedural Due Process

                The Legislature has imposed no time limitations on the DMV’s statutory

authority to issue a revocation order following a driver’s DUI arrest.4 Similarly, the OAH

has no statutory or regulatory time limitations within which to issue its decision

following an administrative hearing.5 Nevertheless, this Court has recognized that “[a]

driver’s license is a property interest and such interest is entitled to protection under the

Due Process Clause of the West Virginia Constitution.” Syl. Pt. 1, Abshire v. Cline, 193

W.Va. 180, 455 S.E.2d 549 (1995). Thus, “due process concerns are raised when there

are excessive and unreasonable delays in [driver’s] license suspension cases.” Holland v.

Miller, 230 W.Va. 35, 39, 736 S.E.2d 35, 39 (2012).

                [T]his Court has long recognized the constitutional mandate
                that “‘justice shall be administered without . . . delay.’ W.Va.
                Const. Art. III, § 17.” Frantz v. Palmer, 211 W.Va. 188, 192,
                564 S.E.2d 398, 402 (2001). See Petry v. Stump, 219 W.Va.
                197, 200, 632 S.E.2d 353, 356 (2006); and Allen v. State,
                Human Rts. Comm’n, 174 W.Va. 139, 157, 324 S.E.2d 99,
                118 (1984). We have further declared that “[j]ust as circuit
                court judges ‘have an affirmative duty to render timely
                decisions on matters properly submitted within a reasonable
                time following their submission,’ Syl. Pt. 1, in part, State ex

       3
           This is Mr. Straub’s second assignment of error.
       4
           See W.Va. Code § 17C-5A-1(c).
       5
           See W.Va. Code § 17C-5C-1 et seq. and 105 W.Va. CSR § 1-1 et seq.

                                               5
              rel. Patterson v. Aldredge, 173 W.Va. 446, 317 S.E.2d 805
              (1984), the obligation to act in a timely fashion is similarly
              imposed upon administrative bodies[.]” Frantz, 211 W.Va. at
              192, 564 S.E.2d at 402. Indeed, as we held in syllabus point 2
              of Frantz, “‘[A]dministrative agencies performing quasi-
              judicial functions have an affirmative duty to dispose
              promptly of matters properly submitted.’ Syl. Pt. 7, in part,
              Allen v. State, Human Rights Comm’n, 174 W.Va. 139, 324
              S.E.2d 99 (1984).”

Miller v. Moredock, 229 W.Va. 66, 70, 726 S.E.2d 34, 38 (2011).6



              In the present case, Mr. Straub complains about two delays. First, the DMV

issued its order revoking his driver’s license twenty-three months after his arrest for DUI.

And second, the OAH issued its decision affirming that revocation eleven months

following the administrative hearing. Mr. Straub asserts these delays were grossly

excessive, unreasonable, and violated his procedural due process rights guaranteed by the




       6
         Mr. Straub’s fourth assignment of error is that the OAH and the DMV’s failure
to establish internal procedural time limits violated his “constitutional and statutory due
process rights.” This contention is premised on West Virginia Code § 29A-5-1(a), which
provides that “[e]ach agency shall adopt appropriate rules of procedure for hearing and
contested cases[.]” However, we reject the argument that this language creates a statutory
mandate for the DMV and the OAH to establish strict internal procedural time limits. The
gist of his argument is that it is unfair to drivers that the DMV and the OAH are not held
to clearly established deadlines, especially since they are so lackadaisical in performing
their respective administrative duties. However, this is an argument best made to the
Legislature, not this Court. See Syl. Pt. 2, Huffman v. Goals Coal Co., 223 W.Va. 724,
725, 679 S.E.2d 323, 324 (2009) (“This Court does not sit as a superlegislature,
commissioned to pass upon the political, social, economic or scientific merits of statutes
pertaining to proper subjects of legislation. It is the duty of the Legislature to consider
facts, establish policy, and embody that policy in legislation. It is the duty of this Court to
enforce legislation unless it runs afoul of the State or Federal Constitutions.”).

                                              6
Fifth Amendment to the United States Constitution and Article III, sec. 10 and sec. 17 of

the West Virginia Constitution.



              With regard to the first delay, the DMV counters that the lag in receipt of

the arresting officer’s DUI Information Sheet following the arrest did not relieve the

DMV of its statutory duty to revoke Mr. Straub’s driver’s license. We agree. As this

Court held in syllabus point three of Carpenter v. Cicchirillo, 222 W.Va. 66, 662 S.E.2d

508 (2008):

                     “A law enforcement officer’s failure to strictly comply
              with the DUI arrest reporting time requirements of W.Va.
              Code, 17C-5A-l(b) [1994] is not a bar or impediment to the
              commissioner of the Division of Motor Vehicles taking
              administrative action based on the arrest report, unless there
              is actual prejudice to the driver as a result of such failure.”
              Syllabus point 1, In re Burks, 206 W.Va. 429, 525 S.E.2d 310
              (1999).


              When a driver asserts constitutional error due to a substantial delay in

holding the administrative license revocation hearing, the pivotal issue is whether he or

she can demonstrate prejudice. That is, whether the driver’s ability to present his or her

defense was affected by the delay. In Meadows v. Reed, No. 14-0138, 2015 WL 1588462

(W.Va. Mar. 16, 2015) (memorandum decision), this Court granted the driver relief after

we determined that the four-year delay before the matter went to administrative hearing

was prejudicial to the driver’s ability to defend himself. Significantly, that delay

encompassed the death of the investigating officer, whose conclusions in the DUI

information sheet were hotly contested by the driver. In contrast, we declined to grant the
                                            7
driver relief in Reed v. Conniff, 236 W.Va. 300, 779 S.E.2d 568 (2015), when there was a

four-year delay before the matter went to administrative hearing; in Coniff, the delay did

not prejudice the driver’s ability to mount a defense to the charge.



                Turning to the instant case, we agree with Mr. Straub’s general contention

that a driver should not be forced to live under the cloud of a pending revocation for

nearly two years. Nevertheless, Mr. Straub fails to raise any serious argument that he was

actually prejudiced or unable to adequately present his case when it did go to hearing

before the OAH. In fact, Mr. Straub presented no evidence at the OAH hearing in defense

of the DMV’s assertion that he was driving under the influence.



                Instead, by way of analogy, Mr. Straub asserts as his third assignment of

error that the one-year statute of limitations for misdemeanors7 should bar the DMV’s

administrative action, considering the fact his arrest was for misdemeanor DUI. This

analogy is misplaced on its face and ignores our case law regarding the “clear statutory

demarcation between the administrative issue on a suspension and the criminal issue on a

charge of driving while under the influence.” Jordan v. Roberts, 161 W.Va. 750, 757,

246 S.E.2d 259, 263 (1978). Accordingly, we find the statute of limitations for Mr.




       7
           See W.Va. Code § 61-11-9 (2014).


                                              8
Straub’s DUI criminal charge is in no way germane to his procedural due process

challenge to the administrative revocation proceeding.8



              The instant case is factually similar to In re Petition of Donley, 217 W.Va.

449, 618 S.E.2d 458 (2005), wherein the driver contended that the delay of almost three

years between his guilty plea to second offense DUI and the driver’s license revocation

order violated his constitutional due process rights. In Donley, this Court found such

delay patently unreasonable. Id. at 452, 618 S.E.2d at 461. Nevertheless, we held that the

driver was not entitled to relief “because no prejudice flowed from the delay.” Id.



              Likewise, the twenty-three month delay between the DUI arrest and the

DMV’s issuance of the revocation order in the instant matter was excessive and

unreasonable. However, Mr. Straub is still not entitled to relief because he can show no

actual prejudice that flowed from this delay. As mentioned above, at the administrative


       8
          See Syl. Pt. 3, Carroll v. Stump, 217 W.Va. 748, 619 S.E.2d 261 (2005)
(“Administrative license revocation proceedings for driving a motor vehicle under the
influence of alcohol, controlled substances or drugs which are initiated pursuant to
Chapter 17C of the West Virginia Code are proceedings separate and distinct from
criminal proceedings arising from driving a motor vehicle under the influence of alcohol,
controlled substances or drugs. The presentation of a sworn complaint before a magistrate
and the magistrate’s finding of probable cause and issuance of a warrant are not
jurisdictional prerequisites to the commencement of administrative license revocation
proceedings pursuant to Chapter 17C of the West Virginia Code.”); see e.g., Alvarez v.
State, Dep’t of DMV, 249 P.3d 286, 291-92 (Alaska 2011) (rejecting argument that
speedy trial limits apply to driver’s license suspension proceedings because “both the
Alaska and United States Constitutions grant the right to a speedy trial only with regard
to criminal proceedings, and a license revocation proceeding is not a criminal
proceeding.”) (footnote omitted).

                                             9
hearing Mr. Straub did not dispute the fact that he was driving while intoxicated.

Therefore, the delay did not hamper Mr. Straub’s defense of the charge; he advanced

none.9



              We turn now to the second delay. Mr. Straub complains that it took the

OAH eleven months to issue its final order following the hearing. On this issue, the DMV

counters that it cannot defend the OAH’s delay because the DMV “has no control over”




         9
          For this reason, the correlated first assignment of error lacks merit. Mr. Straub
argues that the OAH’s hearing officer’s failure to rule upon the procedural delay issue
was a violation of his “due process rights, in addition to those violations arising from pre-
issuance and post-issuance unreasonable delays[.]” However, Mr. Straub does not cite
any authority for the proposition that he would be entitled to relief simply due to the
OAH’s failure to rule on his constitutional arguments. In Matter of Callaghan, 238
W.Va. 495, 796 S.E.2d 604 (2017), cert. denied sub nom. Callaghan v. W. Virginia
Judicial Investigation Comm’n, No. 17-54, 2017 WL 2972601 (U.S. Oct. 2, 2017), this
Court briefly discussed the issue. Looking to other jurisdictions, we noted that an agency
before which constitutional challenges are raised generally acts with the “presumption
that its rules and actions were constitutional and reserve[s] to the appropriate judicial
forum the final resolution of constitutionality.” Id. at 510 n.15, 796 S.E.2d at 619 n.15.
“[A]lthough the general rule is that agencies do not have the authority to decide
constitutional issues, agencies must consider and apply constitutional principles in
determining procedures and rendering decisions in contested cases.” Richardson v. Tenn.
Bd. of Dentistry, 913 S.W.2d 446, 453 (Tenn. 1995). More specifically, “[w]hen the
focus of an aggrieved party’s claim is an ‘as applied’ challenge to the constitutionality of
a statute or any challenge to the constitutionality of an agency rule, the agency may
initially rule on the challenge.” Id. at 455 (emphasis added). Here, Mr. Straub does not
articulate any real prejudice flowing from the OAH’s failure to address his constitutional
arguments.

                                             10
the OAH. Nevertheless, the DMV states that Mr. Straub’s argument regarding this delay

lacks merit because he can demonstrate no actual prejudice. 10 We agree.



             When evaluating a procedural due process challenge regarding the OAH’s

delay in issuing its order after the administrative hearing, we again focus on whether the

driver demonstrates actual prejudice. And in this circumstance, “the issue of prejudice

necessarily involves prejudice to a party that occurred after the hearing was held.” Reed

v. Staffileno, __ W.Va. __, __, 803 S.E.2d 508, 513 (2017) (emphasis added).



             In Staffileno, the driver put forth compelling evidence of prejudice because

he made a career change during the thirty-nine month period between the OAH

administrative hearing and its final order. ___ W.Va. at ___, 803 S.E.2d at 513. We

affirmed the circuit court’s finding that Mr. Staffileno was prejudiced by this delay

because he would not have retired from his desk job when he did and changed his

employment to that of a school bus driver, if the OAH had issued a timely decision. Id.




      10
         The DMV also asserts that Mr. Straub’s failure to bring an action for
extraordinary relief against the OAH to issue its decision in a timely fashion renders moot
his complaint about the delay. We disagree. This Court rejected similar arguments in
Miller v. Moredock, and stated that despite the availability of extraordinary relief as a
means of seeking issuance of delayed decisions, a party whose driver’s license has been
revoked should not have to resort to such relief to obtain a decision within a reasonable
period of time following an administrative hearing. 229 W.Va. at 72 n.7, 726 S.E.2d at 40
n.7

                                            11
              Our holding in syllabus point two of Staffileno is dispositive of this issue:

                      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.

___ W.Va. at ___, 803 S.E.2d at 510.



              Accordingly, we find the OAH’s eleven-month delay in issuing its final

order in this matter egregious. A driver should not have to wait this long to receive an

order following an administrative hearing, and these delays cannot be condoned.

Nevertheless, we decline to grant Mr. Straub relief because he can 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.



              The circuit court was correct in finding that Mr. Straub demonstrated no

prejudice by either the delay of the DMV in issuing the revocation order, or the delay in




                                               12
the OAH’s issuing its final order. Thus, we find Mr. Straub’s related assignments of error

regarding procedural delays lack merit.11



                                   IV. CONCLUSION

              We affirm the October 21, 2016, order of the Circuit Court of Cabell

County.



                                                                                  Affirmed.




       11
         As his fifth assignment of error, Mr. Straub challenges West Virginia Code §
17C-5A-2(s)—the procedure for obtaining a stay from the circuit court pending appeal—
and claims the statute violates “the United States and West Virginia constitutional
guarantees of due process of law, and their concepts of procedural due process,
substantive due process, and equal protection of law.”

        This Court is at a loss to comprehend why Mr. Straub would assign this error
considering the fact the circuit court granted his request to stay the revocation order
pending appeal. “It is an established principle of law that one may not urge the
unconstitutionality of a statute if he is not harmfully affected by the particular feature of
the statute alleged to be in conflict with the Constitution.” Wilson v. State, 264 A.2d 510,
511 (Del. 1970). “A closely related principle is that constitutional rights are personal and
may not be asserted vicariously.” Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973).
These principles “reflect the conviction that under our constitutional system courts are
not roving commissions assigned to pass judgment on the validity of the Nation’s laws.”
Id. at 610-11. Accordingly, we decline to address this assignment of error.

                                             13
