                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS
                                                                                 FILED
Ronnie Meadows,                                                             March 16, 2015
Petitioner Below, Petitioner                                                  released at 3:00 p.m.
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
vs) No. 14-0138 (Kanawha County 13-AA-89)                                      OF WEST VIRGINIA



Patricia S. Reed, Commissioner,

West Virginia Division of Motor Vehicles,

Respondent Below, Respondent



                               MEMORANDUM DECISION
        Petitioner Ronnie Meadows, by his counsel Carter Zerbe and David Pence, appeals the
order of the Circuit Court of Kanawha County entered February 6, 2014. That order affirmed a
final order dated July 23, 2013, by the Commissioner of the West Virginia Division of Motor
Vehicles,1 which revoked the petitioner’s license to drive for driving under the influence
(“DUI”). The Commissioner, by counsel Janet E. James, filed a response in support of the
circuit court’s order. The petitioner filed a reply.

        This Court has considered the parties’ briefs, the record on appeal, and the parties’ oral
arguments. Upon consideration under our standards of review, the Court finds no substantial
question of law, and finds that the circuit court was plainly wrong in its decision. The record
establishes that the petitioner did not receive a timely hearing on his revocation, and the
Commissioner’s delay in affording a hearing clearly worked to prejudice the petitioner. For
these reasons, a memorandum decision reversing the circuit court’s order is appropriate under
Rule 21 of the Rules of Appellate Procedure.

       On August 21, 2008, petitioner Ronnie Meadows was arrested by Officer J.D. Matheny
of the Charleston Police Department for driving under the influence. The arresting officer
conducted a test of Mr. Meadows’s breath that showed he had a blood alcohol content of .071
g/dL. At the time of Mr. Meadows’s arrest, evidence of more than .05 but less than .08 g/dL of
alcohol in a person’s blood was relevant evidence the person was under the influence of alcohol.2




       1
         When the revocation order was entered, Steven O. Dale was the Acting Commissioner
of the West Virginia Division of Motor Vehicles. Pursuant to Rule 41(c) of the Rules of
Appellate Procedure, the current commissioner, Patricia S. Reed, has been automatically
substituted as the named petitioner herein.
       2
           W.Va. Code § 17C-5-8(a)(2) [2004] stated:


                                                1

        Officer Matheny did not charge Mr. Meadows with any criminal offense, including
driving under the influence. However, the arresting officer forwarded the printout from Mr.
Meadows’s breath test, as well as an implied consent statement and a “DUI Information Sheet,”
to the Division of Motor Vehicles.

        On September 17, 2008, the Commissioner of the Division of Motor Vehicles issued an
order revoking Mr. Meadows’s license to operate a motor vehicle, because of Officer Matheny’s
allegation that Mr. Meadows drove while intoxicated.3 Mr. Meadows timely requested an
administrative hearing of the revocation order. By law, the Commissioner was required to hold
the requested hearing within six months unless there was a “postponement or continuance . . . for
good cause shown.”4 Mr. Meadows also requested the investigating officer’s attendance at the
hearing. By law, the Commissioner then bore the responsibility for securing Officer Matheny’s
attendance at any hearing. W.Va. Code § 17C-5A-2(d) [2008].

        Officer Matheny notified the Commissioner by letter that he would be on active military
duty from October 8, 2008, through March 8, 2009, and from April 1st to the 19th of 2009.5 In a
follow up letter, Officer Matheny said he would be available for hearings after April 20, 2009.



               Evidence that there was, at that time, more than five hundredths of one
       percent and less than eight hundredths of one percent, by weight, of alcohol in the
       person’s blood is relevant evidence, but it is not to be given prima facie effect in
       indicating whether the person was under the influence of alcohol[.]

The statute was revised in 2013, and this identical subsection may now be found at W.Va. Code §
17C-5-8(b)(2).
       3
         The Commissioner’s letter told Mr. Meadows the revocation was based on “a written
statement . . . by the arresting officer certifying that on Aug 21, 2008 the officer had reasonable
grounds to believe that you were driving a motor vehicle in this state while under the combined
influence of alcohol and a controlled substance or drug.”
       4
           W.Va. Code § 17C-5A-2(c) [2008] said:

               Any hearing shall be held within one hundred eighty days after the date
       upon which the commissioner received the timely written request for a hearing
       unless there is a postponement or continuance. The commissioner may postpone
       or continue any hearing on the commissioner’s own motion or upon application
       for each person for good cause shown. . . .

This statute was revised in 2010, 2012, and 2013. W.Va. Code § 17C-5-2(c)(1) [2013] continues
to require a hearing to be held within 180 days after receipt of a timely objection to a revocation
order.
       5
         Officer Matheny also indicated that he might be out of the country beginning May 19,
2009, for twelve to seventeen months. The military orders in the record, however, show Officer
Matheny’s dates for active duty were December 1, 2008, until February 10, 2009.
                                                2

      In response, in a letter dated September 22, 2008, the Commissioner informed Mr.
Meadows that the arresting officer was on military leave and that a hearing would be scheduled
upon Officer Matheny’s return.

         While Officer Matheny’s letters said he would be available after April 20, 2009, the
record suggests the Commissioner did not attempt to contact the officer until December 2010
(that is, some 20 months after the officer became available and 27 months after Mr. Meadows
requested a hearing). On January 27, 2011, the Charleston Police Department sent a letter to the
hearing coordinator for the Commissioner stating that, as of October 15, 2010, Officer Matheny
was “no longer employed with the Charleston Police Department.”

       The Commissioner scheduled the first administrative hearing in this case for May 4,
2011, over 31 months after Mr. Meadows asked for a hearing. On May 4th, the hearing was
continued. No reason for the continuance appears in the record6 and counsel for Mr. Meadows
objected.

        The Commissioner scheduled the second hearing in this case for November 14, 2011, 38
months after Mr. Meadows asked for a hearing. Four days before the hearing, counsel for the
Commissioner (an assistant attorney general) asked for a continuance because he had not had
“sufficient time to review the file and speak with any witnesses regarding this matter.” The
Commissioner continued the second hearing.

       The Commissioner scheduled a third hearing to be held on February 27, 2012, some 41
months after Mr. Meadows requested a hearing. On the morning of February 27th, the
Commissioner continued the administrative hearing due to the illness of a hearing examiner.7
Mr. Meadows objected to the continuance, pointing out that the Commissioner had failed to
provide a hearing within six months as required by law.

       Two months later, on April 26, 2012, Officer Matheny died.

       The Commissioner scheduled a fourth hearing for July 9, 2012, almost four years after
Mr. Meadows was arrested by Officer Matheny. At the hearing, the Commissioner presented no
witnesses and relied solely upon the DUI Information Sheet and the other two documents
submitted by Officer Matheny in August 2008.

       Mr. Meadows, by counsel, made a motion that the hearing examiner dismiss the case.
Mr. Meadows argued that state law required a hearing within six months of his request for a
hearing, yet the Commissioner had (without good cause and twice over the objections of Mr.
Meadows) postponed three hearings and taken four years to hear his case. In that time, Officer
Matheny, the only witness against Mr. Meadows, had died and could not be cross-examined
       6
          A fax from the Office of Administrative Hearings dated May 4, 2011, and sent at 10:50
a.m., states: “The hearing scheduled for Ronnie W. Meadows, on May 4, 2011 at 12:30 p.m. has
been continued per OAH.”
       7
         A fax from the legal section of the Division of Motor Vehicles, dated February 27, 2012
and sent to Mr. Meadows’s counsel at 10:52 a.m., says that the hearing scheduled for “Feb. 27,
2012 at 1:00 p.m. has been continued, per the Hearing Examiner is ill.”
                                               3

about the contents of his reports. Counsel asserted that Mr. Meadows was prejudiced because he
was “unable to cross examine the DUI Information Sheet” and that in his “numerous years of
practice, I’ve never gotten an answer from a sheet of paper no matter how many times I’ve
questioned it.” Counsel also argued that, if the hearing examiner failed to dismiss the case, then
Mr. Meadows was presumptively prejudiced because he was going to be forced to testify to rebut
the unchallengeable paperwork submitted by Officer Matheny.

       The hearing examiner acknowledged that this was an “unfortunate situation.” However,
the hearing examiner concluded that she had absolutely no authority to dismiss the case against
Mr. Meadows. The hearing examiner’s only authority was to “rule on evidentiary issues and
submit proposed findings of fact and conclusions of law for the consideration of the”
Commissioner. W.Va. Code § 17C-5A-2(a) [2008].

       Mr. Meadows testified at the July 2012 hearing.

        Ten months later, the hearing examiner drafted a final order for the Commissioner with
findings of fact based largely upon the DUI Information Sheet prepared by Officer Matheny.8
Effective July 23, 2013, the Commissioner adopted the final order and concluded that Mr.
Meadows had been stopped while driving a motor vehicle “under the combined influence of
alcohol, and a controlled substance or drug.” Among other requirements, the Commissioner
revoked Mr. Meadows’s driver’s license for one year.

       Mr. Meadows timely petitioned the circuit court for review of the Commissioner’s order.
Mr. Meadows submitted a brief to the circuit court asserting he had suffered prejudice from the
Commissioner’s delay in affording him a prompt hearing. The Commissioner responded that
prejudice could not be presumed but rather had to be proven in a hearing. In a reply brief, Mr.
Meadows asked the circuit court to “allow the parties to conduct an evidentiary hearing
regarding this issue.”

       The circuit court did not hold a hearing. In an order dated February 6, 2014, the circuit
court entered a final order affirming the Commissioner’s July 2013, revocation order. Mr.
Meadows now appeals.

       The applicable standard of review when reviewing a circuit court’s order in an
administrative appeal is this:

               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.

Syllabus Point 1, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996). This Court has
outlined the statutory standards contained in W.Va. Code § 29A-5-4 in this way:
       8
          Mr. Meadows appeals the manner in which the Commissioner’s final order was
prepared by the hearing examiner, and challenges the “boilerplate” nature of the Commissioner’s
final order. We decline to consider this issue.
                                                4

               Upon judicial review of a contested case under the West Virginia
       Administrative Procedure Act, Chapter 29A, Article 5, Section 4(g), the circuit
       court may affirm the order or decision of the agency or remand the case for
       further proceedings. The circuit court shall reverse, vacate or modify the order or
       decision of the agency if the substantial rights of the petitioner or petitioners have
       been prejudiced because the administrative findings, inferences, conclusions,
       decisions or order are: “(1) In violation of constitutional or statutory provisions;
       or (2) In excess of the statutory authority or jurisdiction of the agency; or (3)
       Made upon unlawful procedures; or (4) Affected by other error of law; or (5)
       Clearly wrong in view of the reliable, probative and substantial evidence on the
       whole record; or (6) Arbitrary or capricious or characterized by abuse of
       discretion or clearly unwarranted exercise of discretion.”

Syllabus Point 2, Shepherdstown Volunteer Fire Dep’t v. State ex rel. State of W.Va. Human
Rights Comm’n, 172 W.Va. 627, 628, 309 S.E.2d 342, 343 (1983).

        Mr. Meadows argues that he was prejudiced by the Commissioner’s delay in hearing his
objection to the Commissioner’s September 17, 2008 revocation order. At the time of Mr.
Meadows’s objection, W.Va. Code 17C-5A-2(c) required the Commissioner to conduct a hearing
within 180 days (unless there was a postponement or continuance for “good cause shown”). The
Commissioner failed to conduct a hearing for nearly four years, and in that time the State’s sole
witness – Officer Matheny – died.

       Mr. Meadows asserts that a respondent in a license revocation proceeding has a statutory
and due process right to cross-examine the arresting officer. He further asserts that the
Commissioner’s extended delay deprived him of this right. Additionally, Mr. Meadows
contends the Commissioner’s delay was unjustified and largely without good cause. The result
allowed the Commissioner to revoke his license based upon faceless, voiceless documents
containing written statements of the arresting officer.

       The Commissioner acknowledges that there was an extended delay in holding a hearing,
but counters that Mr. Meadows was required to show the delay caused actual, substantial
prejudice that impaired his ability to prepare or defend his case. The Commissioner goes so far
as to claim that Mr. Meadows suffered no prejudice because the Commissioner’s initial
revocation order was stayed and Mr. Meadows retained the ability to drive during the delay. The
Commissioner also claims that, if there was any prejudice arising from the delay, then the
Commissioner was equally prejudiced because the assistant attorney general was likewise
deprived of the opportunity to question Officer Matheny.

        Overall, the Commissioner claims that Mr. Meadows was required to seek a hearing at
the circuit court level to demonstrate actual prejudice from the delay. Because the circuit court
did not hold such a hearing, the Commissioner claims there is no evidence of prejudice in the
record to support setting aside the Commissioner’s decision. We disagree.

       It is undisputed that the law governing license revocation proceedings requires that a
hearing be held within 180 days after an objection to the revocation is lodged. See W.Va. Code
17C-5A-2(c). A hearing may be postponed or continued only for good cause, and “this Court

                                                 5

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).” Miller v. Moredock, 229 W.Va. 66, 70, 726 S.E.2d 34, 38 (2011). See also Petry v.
Stump, 219 W.Va. 197, 200, 632 S.E.2d 353, 356 (2006) (“Due process rights must be
considered under our general rules concerning unreasonable delay.”). “[A]dministrative
agencies performing quasi-judicial functions have an affirmative duty to dispose promptly of
matters properly submitted.” Syllabus Point 7, in part, Allen v. State Human Rights Comm’n,
174 W.Va. 139, 324 S.E.2d 99 (1984).

       The record is clear that the Commissioner had good cause to postpone any hearing on Mr.
Meadows’s objection until the arresting officer was released from military duty. However, the
record is just as clear that, once the officer was available to testify, the Commissioner was
required to promptly hold a hearing.

       Officer Matheny’s letters stated he would be released from military duty and would be
available to testify after April 20, 2009. Yet the Commissioner made no attempt to schedule a
hearing until December 2010 or January 2011, over 27 months after Mr. Meadows sought a
hearing and over 20 months after Officer Matheny said he would be available.

        Furthermore, the first hearing scheduled on Mr. Meadows’s objection was scheduled for
May 2011, but was continued by the Commissioner for no reason. This Court has specifically
rejected the Commissioner’s assertion “that the Commissioner did not have to have a reason to
continue a hearing on his own motion[.]” Holland v. Miller, 230 W.Va. 35, 38, 736 S.E.2d 35,
38 (2012). W.Va. Code § 17C-5A-2(c) permits continuances only “for good cause shown.” The
legislative rules promulgated to implement this provision likewise expressly provide that
continuances must have a good cause basis, including those initiated by the Commissioner’s own
motion. See 91 W.Va.C.S.R. 1.3.8.3 (“The Commissioner may postpone or continue a hearing on
his or her own motion. The motion shall be for good cause[.]”).

        The Commissioner scheduled a second hearing for November 2011. This hearing was
continued on motion of an assistant attorney general because, in the prior three years, it appears
that no one representing the Commissioner had found “sufficient time to review the file and
speak with any witnesses regarding this matter.” Despite receiving a continuance on this ground,
the assistant attorney general later offered no witnesses and introduced the same three documents
into evidence that the Commissioner had relied upon in September 2008.

        The third hearing, for February 2012, was postponed the day of the hearing due to the
illness of the hearing examiner. The fourth and final hearing was scheduled for July 2012, 47
months after Mr. Meadows was stopped by Officer Matheny and 10 weeks after the officer died.

       Even though the Commissioner plainly violated the statutory requirement that a hearing
be held within six months, the Commissioner claims Mr. Meadows is not entitled to relief
because he did not establish he was actually prejudiced. What the Commissioner ignores is that
Mr. Meadows was required to expend resources and time preparing for four hearing dates, three
of which were cancelled, two on the day of the hearing. As Chief Justice Albright once noted,




                                                6

       principles of fairness suggest that the same promptness concerns that are imposed
       upon a defendant who requests a hearing in connection with an administrative
       revocation of his operator’s license should be similarly imposed upon the West
       Virginia Department of Motor Vehicles (“DMV”). To permit the DMV to grant
       itself an extension of the 180-day deadline for revocation hearings that is
       mandated by West Virginia Code § 17C-5A-2(b) (2004) without providing for
       any limits on the length of such extensions encourages the establishment of a
       lopsided system – a system that proves inherently unjust for the defendant whose
       revocation proceedings are protracted, not because of his requests, but because of
       lengthy administrative delays.

In re Petition of Donley, 217 W.Va. 449, 453, 618 S.E.2d 458, 462 (2005) (Chief Justice
Albright, concurring). Put another way, “what is sauce for the goose is sauce for the gander:” it
is patently unfair for the Commissioner to insist upon strict adherence to statutory time limits by
a driver challenging the Commissioner, while the Commissioner blithely ignores those same
limits. The Legislature imposed a requirement that a hearing be held within 180 days, unless
postponed or continued for good cause, and the proceedings should have been dismissed once it
was clear the statutory time limit had been violated.

        Still, to be clear, Mr. Meadows presented substantial evidence to the hearing examiner
that he was prejudiced by the Commissioner’s delays. The evidence of record shows that Mr.
Meadows’s ability to defend against the arresting officer’s allegations was impaired by the
Commissioner’s delay. Because of Officer Matheny’s death during the Commissioner’s inaction
and delay, Mr. Meadows was unable to challenge the officer’s statements made in the DUI
Information Sheet, the document that the Commissioner heavily relied upon to revoke his
driver’s license.

         For instance, the DUI Information Sheet states that Officer Matheny stopped Mr.
Meadows because he was “accelerating/decelerating rapidly” and for “other.” Mr. Meadows
testified that Officer Matheny said he stopped Mr. Meadows for running a red light at an
intersection, and became angry when Mr. Meadows established, first, that there was a stop sign,
not a traffic light, at the intersection, and second, that he had stopped at the intersection.
Because of the delay, Mr. Meadows was not able to question the arresting officer about this
inconsistency.

       Further, the DUI Information Sheet states that Mr. Meadows failed the walk and turn test
because he “steps off line” and made an “improper turn.” Mr. Meadows testified that the test
was performed in the middle of a dark, narrow street, and that there was no “line” for him to
have stepped off. Further, he testified he successfully completed the test and made the turn
exactly as the officer directed. The DUI Information Sheet also says Mr. Meadows failed the
one legged stand. However, Mr. Meadows says he once had a brain aneurism (which was
successfully treated) that still affects his sense of balance, and even demonstrated to the hearing
examiner that he cannot balance on one leg. Again, the Commissioner’s delay precluded Mr.
Meadows from questioning the arresting officer about these conflicts in the evidence.




                                                7

        The DUI Information Sheet says that Mr. Meadows was caught driving under the
influence of both “alcohol” and “controlled substances/drugs.”9 The sheet also indicates Mr.
Meadows had taken “medication.” Furthermore, the Commissioner revoked Mr. Meadows’s
license on a finding that he drove while impaired by a combination of alcohol and a controlled
substance. However, Mr. Meadows testified that the only “drug” he was taking at the time he
was driving was a blood pressure medication, and asserts there is no evidence in the record that
the medication would impair his driving ability. Because of the Commissioner’s delay that
resulted in the absence of the arresting officer, the officer’s notation that Mr. Meadows was
impaired by “controlled substances/drugs” became an unchallengeable fact.

        Finally, the record suggests that Officer Matheny’s employment was terminated by the
Charleston Police Department on October 15, 2010. The Commissioner’s delay of a hearing
until July 2012 (after Officer Matheny’s April 2012 death) denied Mr. Meadows the ability to
question the arresting officer regarding the reason his employment was terminated. Cross-
examination of Officer Matheny may have revealed some bias or flawed training that, if
sufficient to result in his termination, may also have resulted in his inability to properly conduct
a DUI stop.

        In conclusion, we find that Mr. Meadows established actual and substantial prejudice
from the Commissioner’s delay in conducting a hearing on the license revocation. We therefore
reverse the circuit court’s February 6, 2014, order upholding the Commissioner’s revocation
order, and remand the case for entry of an order reinstating Mr. Meadows’s license.

                                                                          Reversed and remanded.

ISSUED: March 16, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum

DISSENTING AND WRITING SEPARATELY:

Justice Allen H. Loughry, II


       9
         The DUI Information Sheet has a section for the arresting officer to check one of three
boxes, and says:

            THE BELOW NAMED DRIVER AND/OR VEHICLE OWNER
       VIOLATED 17C-5-2, 17C-5A-2 OR 17E-1-1 ET SEQ. BY DRIVING UNDER
       THE INFLUENCE OF: § ALCOHOL § CONTROLLED SUBSTANCES /
       DRUGS W COMBINED

                                                 8

LOUGHRY, J., dissenting:

        I dissent because the majority has erroneously concluded that the hearing delay in
this case lacked good cause and was prejudicial to Mr. Meadows, and because the hearing
examiner correctly concluded that Mr. Meadows was DUI.

                                  The Hearing Delay

        West Virginia Code § 17C-5A-2(c) (2008) allowed the Commissioner to continue
the administrative hearing for good cause shown, and the record reflects that Officer
Matheny sent letters to the DMV advising of his unavailability. On September 12, 2008,
the officer informed the DMV of the following:

      Please be advised that I will not be able to attend the attached cases due to
      being on active duty military training from October 8, 2008 thru March 8,
      2009. As well again from April 1-19, 2009. I will be out of the country
      from May 19, 2009 for at least 12 months with the possibility of up to 17
      months. I appreciate your cooperation on this matter and if any changes
      occur, I will let you know.

On September 18, 2008, Officer Matheny wrote to inform the DMV that his military
orders for the active duty period of October of 2008 to April of 2009 were being
processed and would be forwarded to the DMV as soon as they were available.

       Unquestionably, Officer Matheny’s service on active military duty and absence
from the country constituted good cause for the Commissioner to continue the
administrative hearing. The law in effect at that time required the Commissioner to
secure the officer’s attendance if requested by the driver, which Mr. Meadows did. See
W.Va. Code § 17C-5A-2(d) (2008). In syllabus point 2 of Miller v. Hare, 227 W.Va.
337, 708 S.E.2d 531 (2011), we held that by virtue of the Commissioner’s statutory duty
under the 2008 law to comply with the driver’s request and secure the officer’s
attendance, good cause for a continuance existed when the officer did not appear at the
administrative hearing.

        In the instant matter, the majority states that the Commissioner waited “some 20
months after the officer became available” before attempting to schedule the hearing.
This statement is contradicted by the record evidence. Officer Matheny’s September 12,
2008, letter stated that he would be out of the country for twelve to seventeen months
beginning on May 19, 2009. The seventeen-month period would not have concluded
until October of 2010. On December 23, 2010, which was only two and one-half months
after the date on which the officer said he would be available, the Commissioner issued a
notice of hearing for May 4, 2011.

                                            9

       Although the May 4, 2011, hearing was continued, the record does not reveal a
reason why–other than it was “per the OAH.”1 To understand the importance of this
reference to the OAH, one must recognize that West Virginia’s system for driver’s
license revocation appeals was undergoing significant change at the time. The OAH is a
separate administrative agency independent of the DMV. W.Va. Code § 17C-5C-1 to -5
(2010). Effective June 11, 2010, the Legislature took away the DMV Commissioner’s
authority to hold hearings and decide challenges to license revocation orders, instead
placing this authority with the newly-created OAH. Id.; W.Va. Code § 17C-5A-2 (2010).
A dispute arose during this time period as to which agency–the DMV or the OAH–had
jurisdiction over cases such as this, where there was a pending challenge to a license
revocation order arising from an incident occurring before the OAH was created. See
Miller v. Smith, 229 W.Va. 478, 729 S.E.2d 800 (2012), superceded by statute on other
grounds as recognized in Dale v. Ciccone, 233 W.Va. 652, 658-59, 760 S.E.2d 466, 472­
73. This dispute apparently touched Mr. Meadow’s case, as evidenced by the April 12,
2011, letter from the OAH’s chief hearing examiner advising that this hearing was being
moved to the OAH’s office. Ultimately, in Miller v. Smith, this Court concluded that the
DMV retained jurisdiction over the preexisting cases. Id., 229 W.Va. at 482-83, 729
S.E.2d at 804-05. However, when Mr. Meadows’s hearing was continued in May of
2011, neither the DMV nor the OAH would have known which agency was responsible
for holding the hearing and deciding this case. Considering this background, I am
disinclined to find fault with, or prejudice resulting from, the continuance of the May 4,
2011, hearing. Thereafter, another hearing date was continued at the request of counsel
for the DMV, but Mr. Meadows did not object to that continuance. The next scheduled
hearing date was continued because the hearing examiner was ill, which constitutes good
cause.

       To support his prejudicial delay argument, Mr. Meadows is required to
demonstrate that he suffered “actual and substantial prejudice as a result of the delay.”
Syl. Pt. 5, Miller v. Moredock, 229 W.Va. 66, 726 S.E.2d 34 (2011). Prejudice cannot be
presumed. Id., 229 W.Va. at 71, 726 S.E.2d at 39. My review of the record and
arguments convinces me that he has not met this burden. He argues that if Officer
Matheny had not died, he would have cross-examined the officer regarding his driving
and the field sobriety tests. However, without Officer Matheny’s presence at the hearing,
Mr. Meadows was able to present whatever testimony and arguments he wanted to make.
He could dispute every single notation in the DUI Information Sheet, and there was no
witness to contradict his claims. Mr. Meadows testified at length and even re-enacted
one of his field sobriety tests for the hearing examiner. Nonetheless, the hearing
examiner did not believe his story, and we accord deference to those credibility
determinations. “[F]indings of fact by the administrative officer are accorded deference

1
“OAH” is an abbreviation for the Office of Administrative Hearings.

                                           10

unless the reviewing court believes the findings to be clearly wrong.” Syl. Pt. 1, in part,
Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996). Mr. Meadows has provided
no basis to convince me that the hearing examiner was clearly wrong in assessing his
credibility. Indeed, my review of the record finds support for the hearing examiner’s
rejection of his claims. For example, Mr. Meadows contradicted himself on the issue of
his ability to take field sobriety tests. He argued that a prior brain aneurysm impacted his
balance, but when asked what effect the aneurysm had on him, he answered “Minimal.
They [did] surgery.”

                          The License Revocation was Proper

        The “principal question” at an administrative driver’s license revocation hearing
“shall be whether the person did drive a motor vehicle while under the influence of
alcohol, controlled substances or drugs[.]” W.Va. Code § 17C-5A-2(e) (2008).2 In this
case, a preponderance of the evidence showed that Mr. Meadows was DUI. As a matter
of statutory law, the DUI Information Sheet (also known as the statement of the arresting
officer) was admissible evidence at the hearing. Syl. Pt. 3, Crouch v. W.Va. Div. of
Motor Vehicles, 210 W.Va. 70, 631 S.E.2d 628 (2006); Syl. Pt. 5, Dale v. Odum, 233
W.Va. 601, 760 S.E.2d 415 (2014). Although Mr. Meadows claimed that the information
in the DUI Information Sheet was incorrect, the hearing examiner was able to assess his
credibility and obviously did not believe him.

       Moreover, Mr. Meadows admitted to the arresting officer that he drank beer before
driving. He repeated this admission at the hearing. He also failed both the one leg stand
and the walk and turn field sobriety tests, and he registered a .071 on the secondary
chemical breath test. Although this test result was .009 less than the level deemed to be
prima facie evidence of DUI, by law it was still “relevant evidence” that he was, in fact,
driving under the influence of alcohol. See W.Va. Code § 17C-5-8(a)(2) (2004).3




2
 There is no issue in this case as to whether the traffic stop was lawful. This case is
controlled by the 2008 version of West Virginia Code § 17C-5A-2, which did not include
language that would hinge the validity of the administrative license revocation upon the
legality of the initial stop. See Miller v. Smith, 229 W.Va. at 484-85, 729 S.E.2d at 806­
07.
3
 West Virginia Code § 17C-5-8(a) (2004) provided the following regarding chemical test
evidence of the amount of alcohol in a person’s blood:



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Indeed, where there is evidence that a person drove while under the influence of alcohol
and/or drugs, the person’s license may be revoked without any secondary chemical test
result. Syl. Pts. 1 & 2, Albrecht v. State, 173 W.Va. 268, 314 S.E.2d 859 (1984).

       Lastly, Mr. Meadows argues that there is no evidence in the DUI Information
Sheet to support that he was under the influence of drugs. He testified that the only drug
he had ingested was his blood pressure medication. However, given the evidence of
intoxication in this case, there was more than sufficient evidence for the hearing examiner
to conclude that Mr. Meadows was DUI even without specific evidence that he had
ingested a drug that could have impaired him.

             For the reasons set forth herein, I believe that the Commissioner’s license
revocation order should have been affirmed. Accordingly, I respectfully dissent.




       (1) Evidence that there was, at that time, five hundredths of one percent or
       less, by weight, of alcohol in his or her blood, is prima facie evidence that
       the person was not under the influence of alcohol;

       (2) Evidence that there was, at that time, more than five hundredths of one
       percent and less than eight hundredths of one percent, by weight, of alcohol
       in the person’s blood is relevant evidence, but it is not to be given prima
       facie effect in indicating whether the person was under the influence of
       alcohol;

       (3) Evidence that there was, at that time, eight hundredths of one percent or
       more, by weight, of alcohol in his or her blood, shall be admitted as prima
       facie evidence that the person was under the influence of alcohol.

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