No. 12-1403 – Steven O. Dale, Acting Commissioner of the West Virginia Division of
Motor Vehicles v. James A. Odum

No. 12-1509 – Steven O. Dale, Acting Commissioner of the West Virginia Division of
Motor Vehicles v. Chad Doyle
                                                                               FILED
                                                                           July 18, 2014
                                                                         RORY L. PERRY II, CLERK

                                                                       SUPREME COURT OF APPEALS

                                                                           OF WEST VIRGINIA




Benjamin, Justice, concurring, in part, and dissenting, in part:


              This Court’s jurisprudence in State ex rel. State v. Gutske, 205 W. Va. 72,

516 S.E.2d 283 (1999), allows a police officer outside of his or her jurisdiction to execute

a citizen’s arrest of a person suspected of DUI. I therefore concur with the majority’s

decision regarding the revocation of Mr. Odum’s driver’s license.



              However, I disagree with the majority’s decision to revoke Mr. Doyle’s

driver’s license. The record in this case demonstrates that the Division of Motor Vehicles

(“DMV”) failed to provide sufficient evidence showing that Mr. Doyle’s vehicle was

lawfully stopped by Patrolman Benjamin Anderson. Without establishing that threshold,

the DMV did not meet its burden of showing that Mr. Doyle was lawfully arrested

pursuant to W. Va. Code § 17C-5A-2(f) (2) (2013), and therefore, it could not lawfully

revoke his license.



              The majority finds that the arresting officer/DUI Information Sheet (“DUI

Information Sheet”)—completed not by Patrolman Anderson, but later by West Virginia


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State Police Trooper Martin Glende—was sufficient to establish the legality of the stop of

Mr. Doyle’s vehicle. The DUI Information Sheet mentions a discussion which Trooper

Glende’s had with Patrolman Anderson about the stop, stating, in relevant part,

“Patrolman B. Anderson stated that he observed a white in color 2009 Ford Van bearing

FL registration L191WV turn left out of the Charles Town Race Track at a right turn only

intersection. At this time, Patrolman Anderson initiated a traffic stop on the stated

vehicle.” The majority concludes that pursuant to syllabus point 3 of Crouch v. West

Virginia Division of Motor Vehicles, 219 W. Va. 70, 631 S.E.2d 628 (2006),1 the DUI

Information Sheet is admissible and that because Mr. Doyle “did not come forward with

any evidence challenging the content of that document[,] . . . there was unrebutted

evidence admitted during the administrative hearing that established a valid stop of Mr.

Doyle’s vehicle.”



              In its application of Crouch, the majority has confused the burden placed

on the DMV in driver’s license revocation proceedings: It is the DMV’s burden to prove

that the arrest was lawful. In Crouch, the DUI Information Sheet was completed by the

officer who initiated the stop and ultimately executed the arrest. The question presented


      1
          Syllabus point 3 of Crouch states,

                     In an administrative hearing conducted by the [DMV],
              a statement of an arresting officer, as described in W.
              Va.Code § 17C-5A-1(b) (2004) (Repl.Vol.2004), that is in the
              possession of the [DMV] and is offered into evidence on
              behalf of the [DMV], is admissible pursuant to W. Va.Code §
              29A-5-2(b) (1964) (Repl.Vol.2002).
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to the Court in Crouch was whether the officer was acting within his jurisdiction. The

arresting officer did not specifically testify during the administrative hearing as to

whether the arrest occurred within his jurisdiction; however, the DUI Information Sheet

he completed specified that the arrest was indeed executed within the officer’s

jurisdiction. Upon review, the Court concluded that information contained within the

DUI Information Sheet concerning the location of the arrest was sufficient to establish

that the arresting officer was acting within his jurisdiction. The Court reasoned that the

DUI Information Sheet created a rebuttable presumption as to its accuracy and that

“evidence pertaining to [the officer’s] jurisdiction was uncontroverted.” Id. at 76 n.12,

631 S.E.2d at 634 n.12.



              Syllabus point 3 of Crouch is not applicable here because its facts are

fundamentally different from this case: In Crouch, the officer who stopped the vehicle

also completed the DUI Information Sheet and testified at the administrative hearing. The

respondent had every opportunity to challenge the contents of the DUI Information Sheet

on the truthfulness of its representations. In the present case, the only information

concerning the stop of Mr. Doyle is the second-hand “testimony” of Patrolman Anderson

as described by Trooper Glende in the DUI Information Sheet. Patrolman Anderson did

not testify at the administrative hearing, and thus no party was able to question him

regarding the legality of the stop.




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             It is firmly rooted in our jurisprudence that hearsay not falling within an

exception specifically delineated in the West Virginia Rules of Evidence is unreliable.

See, e.g., State v. Boyd, 167 W. Va. 385, 397, 280 S.E.2d 669, 679 (1981) (“The

underlying rationale of the hearsay rule is to prevent the admission into evidence of

unreliable or untrustworthy evidence. The major vehicle through which trustworthiness

of evidence is guaranteed is cross-examination.”). I do not believe that hearsay

“testimony” within a DUI Information Sheet without more may satisfy the DMV’s

burden of proving that Patrolman Anderson’s stop was lawful. Furthermore, by applying

a rebuttable presumption of reliability to the inherently unreliable hearsay contained

within the DUI Information Sheet, the majority has impermissibly shifted the burden of

proving the legality of the stop from the DMV to Mr. Doyle.



             It is unclear why the DMV did not call Patrolman Anderson as a witness at

the administrative hearing. Had it done so, and had Patrolman Anderson’s testimony

matched the hearsay statements in the DUI Information Sheet, the DMV would have

satisfied its burden of showing that the arrest was lawful, and I would have supported the

revocation of Mr. Doyle’s driver’s license. However, because the burden to prove that

Patrolman Anderson’s stop of Mr. Doyle was lawful is the DMV’s, and because the

presumptively unreliable hearsay statements contained within the DUI Information Sheet

alone fail to satisfy that burden, I believe the hearing examiner and the circuit court

correctly reversed the revocation of Mr. Doyle’s driver’s license. To the extent that the



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majority decided otherwise, I dissent with respect to Mr. Doyle’s case. I concur with the

majority with respect to Mr. Odum’s case.




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