          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                 September 2015 Term
                                                                        FILED
                                                                    November 4, 2015
                                      No. 14-1063                     released at 3:00 p.m.
                                                                      RORY L. PERRY II, CLERK

                                                                    SUPREME COURT OF APPEALS

                                                                        OF WEST VIRGINIA





                 PATRICIA S. REED, Commissioner, West Virginia

                          Division of Motor Vehicles,

                         Petitioner/Respondent Below,


                                           v.

                                ROBERT B. CONNIFF,
                              Respondent/Petitioner Below.



                    Appeal from the Circuit Court of Ohio County

                      The Honorable Martin J. Gaughan, Judge

                              Case No. 11-MISC-480


              REVERSED AND REMANDED WITH INSTRUCTIONS



                             Submitted: September 22, 2015

                                Filed: November 4, 2015




Patrick Morrisey, Esq.                          Joseph J. John, Esq.
Attorney General                                John & Werner Law Offices, PLLC
Elaine L. Skorich, Esq.                         Wheeling, West Virginia
Assistant Attorney General                      Attorney for Respondent
Charleston, West Virginia
Attorneys for Petitioner


CHIEF JUSTICE WORKMAN delivered the Opinion of the Court.
                             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.      “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.” Syl. Pt. 2, Muscatell v. Cline, 196 W.

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



             3.      “Pursuant to West Virginia Code § 17C-5A-2(c) (2008), the

Commissioner of the DMV has authority to continue an administrative license revocation

hearing on his or her own motion when an investigative officer, despite a validly issued

subpoena, fails to appear at the hearing and fails to seek an emergency continuance.

Good cause for the continuance exists by virtue of the statutory duty imposed on the

Commissioner to secure the officer’s attendance at the hearing under West Virginia Code

§ 17C-5A-2(d) (2008) once the licensee has specifically requested the officer’s

attendance at the revocation proceeding.” Syl. Pt. 2, Miller v. Hare, 227 W. Va. 337, 708

S.E.2d 531 (2001).
                                             i
             4.     Where “Division error” results in an investigating officer’s failure to

appear at a revocation hearing as requested by the driver, such failure may constitute

good cause for a continuance pursuant to West Virginia Code § 17C-5A-2(c) (2008) and

West Virginia Code of State Regulations § 91-1-3.8.3 (2005).



             5.      “In the context of a license revocation proceeding conducted

pursuant to West Virginia Code § 17C–5A–2, ascertaining whether the facts support a

good cause basis for granting any continuance requires a careful examination of whether

the delay was unreasonable or excessive under the circumstances, and any prejudice to

the licensee shall be a factor considered in making the determination of whether the delay

was unreasonable or excessive.” Syl. Pt. 4, Holland v. Miller, 230 W. Va. 35, 736 S.E.2d

35 (2012).



             6.        “Where the West Virginia Department of Motor Vehicles has

improperly delayed a driver’s license revocation proceeding held pursuant to W. Va.

Code, 17C-5A-2 [2004] and thereby denied due process of law to a licensee, a party who

has incurred substantial expenses as a result of the improper delay and denial may

recover the party's expenses so incurred from the Department in order to place the party

in the position in which he or she would have been absent the improper delay and denial

by the Department.” Syl. Pt. 2, David v. Comm’r of W. Va. Div. of Motor Vehicles, 219

W. Va. 493, 637 S.E.2d 591 (2006).




                                            ii
WORKMAN, Chief Justice:

              Petitioner Patricia S. Reed,1 Commissioner of the West Virginia Division of

Motor Vehicles (hereinafter “DMV”) appeals the order of the Circuit Court of Ohio

County, West Virginia, reversing the final order of the DMV and reinstating respondent

Robert Conniff’s (hereinafter “Conniff”) drivers’ license. The circuit court found that the

DMV had no “right or authority” to continue the initial revocation hearing in view of the

fact that the DMV failed to properly serve a subpoena on the investigating officer upon

written request of Conniff, thereby violating Conniff’s due process rights.



              Based upon our review of the briefs, legal authorities, appendix record, and

upon consideration of arguments of counsel, this Court finds that the circuit court erred in

concluding that the DMV had no authority to grant a continuance for DMV error in

securing attendance of the investigating officer and therefore reverses the circuit court

and remands for an order reinstating Conniff’s license revocation. However, we further

find that the cumulative effect of the multiple continuances and overall delay in this

matter, while not prejudicial to Conniff’s defense, warrants an award of attorney fees and

costs and therefore remand to the circuit court for a determination as to the reasonable

amount of such fees and costs.



       1
        This appeal was filed by Steven O. Dale when he was the Acting Commissioner
of the Division of Motor Vehicles. Pursuant to Rule 41(c) of the Rules of Appellate
Procedure, the current Commissioner, Patricia S. Reed, was automatically substituted as
the named petitioner.

                                             1

                    I.     FACTS AND PROCEDURAL HISTORY

             On May 30, 2010, Officer William Ward (hereinafter “Officer Ward”)

received an informant tip that a vehicle had been involved in a hit and run. Upon

investigation, Conniff’s vehicle was identified as the hit and run vehicle and Conniff

admitted to being involved in an accident and having a “couple beers.” Conniff failed all

of the field sobriety tests and blew a 0.269 on the intoxilyzer. As a result, Officer Ward

filed DUI and hit and run charges against Conniff;2 on June 29, 2010, the DMV notified

Conniff that his driver’s license was being revoked for DUI. On July 6, 2010, Conniff

requested a hearing and on the form provided by the DMV checked the box stating “I

request the investigating officer’s attendance. By law, DMV will subpoena the officer.”



             A hearing was noticed for October 28, 2010. As a result of Conniff’s

request for Officer Ward’s attendance, the DMV allegedly issued a subpoena to Officer

Ward and attempted service via certified mail. The subpoena was returned to the DMV

on August 14, 2010, as “unclaimed.”3 Officer Ward testified unequivocally at the June 4,

2014, hearing on this matter that he was never served with a subpoena for the October 28,

2010, hearing.


      2
         The hit and run charge was ultimately dismissed and Conniff pled guilty to
reckless driving.
      3
         A copy of the actual subpoena is not contained in the appendix record. DMV
represented that it also served a copy of the notice of hearing on the Wheeling Chief of
Police via certified mail, which was accepted on July 30, 2010. Officer Ward testified
that he was not provided with any information presumably received by the Chief.

                                            2

             As a result of Officer Ward’s failure to appear at the October 28, 2010,

hearing, the hearing examiner “recessed” the hearing over Conniff’s objection.        All

parties appeared to be under the impression that Officer Ward had been properly

subpoenaed but simply failed to appear. Conniff argued that there was insufficient

evidence to uphold the revocation in light of the officer’s failure to appear and that the

revocation must be dismissed.



             A second hearing was thereafter scheduled for February 25, 2011; Conniff

objected to the hearing on the basis that Officer Ward’s failure to appear at the initial

hearing required dismissal of the revocation and demanded $2,500 in attorney fees. As a

result of administrative confusion purportedly caused by the newly-created Office of

Administrative Hearings (hereinafter “OAH”), the hearing did not occur despite Conniff

and his counsel appearing for the hearing.4



             A third hearing was scheduled for May 18, 2012; this hearing was

cancelled due to illness of the hearing examiner. A fourth hearing was then scheduled for

January 22, 2013. Conniff again appeared and objected to the hearing on the same

grounds. However, at the outset of the hearing, it was determined that the hearing
      4
          DMV claimed that, due to the creation of the OAH shortly after Conniff’s
revocation, the file was mistakenly sent to OAH despite the fact that Conniff’s revocation
is governed by procedures pre-existing the OAH. 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 (recognizing authority of
DMV to designate pre-June 11, 2010, DUI incidents as falling under continued
jurisdiction of DMV rather than OAH).

                                              3

examiner’s recording software license had expired and he had no means of recording the

proceedings. It appears that the hearing examiner had only been provided with a “demo”

license, which expired the day of the hearing; the DMV apparently failed to provide him

with a full software license, despite the impending expiration of the demo. This hearing

was continued due to “mechanical or equipment failure.”



             A fifth and final hearing was scheduled on June 4, 2014. At the hearing,

the DMV adduced evidence regarding Conniff’s alleged DUI.            Conniff offered no

substantive defense, but merely cross-examined Officer Ward on the DMV’s failure to

serve him with a subpoena for the initial October 28, 2010, hearing. It was at this

hearing, upon proffer by the DMV, that it was first disclosed that the file revealed that

Officer Ward’s subpoena for the first hearing had been returned “unclaimed.” Conniff

argued that the DMV had no authority to continue the various hearings in light of its

failure to properly subpoena Officer Ward to the first hearing.5 Nevertheless, by final

order entered July 22, 2014, the DMV revoked Conniff’s driving privileges effective

August 2, 2014. The order did not reference or address any of the legal/procedural issues

raised by Conniff.




      5
         The hearing examiner stated on the record that he believed the procedural/legal
arguments regarding the continuances were beyond his purview and that he would not
rule on them, but allowed the parties to place arguments on the record and enter exhibits
regarding those issues.

                                           4

              On July 25, 2014, Conniff filed a petition for review with the circuit court

and moved for stay of the revocation; a hearing was noticed for August 8, 2014, on

Conniff’s motion for stay. The circuit court heard testimony from Conniff that his

inability to drive affected his ability to get to and from his restaurant business and that he

was relying on his wife, who was in poor health, to get him to his business. In view of

his wife’s poor health, the circuit court found that Conniff had demonstrated irreparable

harm and orally granted the stay.



              The circuit court then proceeded to address the merits of the petition for

review. Notably, despite the hearing being noticed only for the motion for stay, DMV

neither objected to the court addressing the merits, nor requested a continuance to allow it

to prepare and/or more fully brief the issues.        Conniff argued that the revocation

proceedings were required to be dismissed at the initial hearing upon the failure of DMV

to properly serve the officer with a subpoena as required by law. The DMV argued that,

given its statutory duty to produce the officer on request, it had no choice but to continue

the hearing since Conniff refused to waive his right to the officer’s attendance. The

DMV argued further that the continuances were all reasonable and that there was no harm

caused by the delay.



              In response, the circuit court initially noted that the DMV’s order in no way

addressed the legal issues which were argued below and formed the basis of the appeal;

accordingly, the court stated that it intended to remand to the DMV for further findings

                                              5

on those issues. The DMV then indicated that upon remand, the circuit court’s stay

would be ineffective given that jurisdiction would return to the DMV.6 The circuit court

then abruptly “reevaluated its ruling” (per the language in the order) and determined that

Conniff was entitled to a dismissal of his license revocation.



              By order dated September 11, 2014,7 the court issued findings of fact and

conclusions of law finding that the DMV had a statutory duty to subpoena Officer Ward

to the initial hearing and that “[t]he Commissioner’s violation of his statutory duty

certainly cannot constitute ‘good cause’ for a continuance.” The court further found that

the continuance for purported “equipment failure” resulting from the DMV’s failure to

renew the recording software license, likewise failed to constitute good cause. The

circuit court concluded that as a result, “[t]he DMV had no right or authority to grant any

continuances over Petitioner’s objections” and that so doing “violated the Petitioner’s due

process rights[.]” Thereafter, the DMV filed the instant appeal.



                             II.    STANDARD OF REVIEW

              This Court has held that
       6
         The DMV asserts that what its counsel was trying to convey was that the
automatic stay would once again become effective upon remand to the DMV pending its
ruling on the legal issues, making the circuit court’s stay order moot, but that the circuit
court did not allow its counsel to fully articulate her point and thought the DMV was
challenging its continued jurisdiction.
       7
         The DMV transmitted the administrative record and a CD of the initial and final
hearings on September 4, 2014; these items were filed by the circuit clerk on September
8, 2014.

                                             6

                      [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). 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.” Syl. Pt. 2, Id. With these standards in mind, we proceed to the parties

arguments.



                                    III.   DISCUSSION

   A. DMV’s Failure to Properly Subpoena the Investigating Officer

              This case primarily presents a narrow issue of first impression: whether the

DMV’s failure to properly subpoena the investigating officer to a revocation hearing

constitutes “good cause” for continuance of the hearing.8 This Court has previously held


       8
         While the DMV asserts seven separate assignments of error, we find that only
the issue of whether its failure to properly issue a subpoena to the investigating officer
constitutes good cause for a continuance to be meritorious; several of the remaining six
assignments of error are borderline frivolous. First, the DMV’s assertion that the circuit
court erred in granting a stay of the revocation was obviously mooted by virtue of the
circuit court’s dismissal of the proceedings. Second, the DMV’s assertion that the circuit
court erred by reversing the revocation because the DMV’s final order did not address
legal arguments raised by Conniff is baseless. While the order briefly references the
DMV’s failure to address the procedural defenses raised by Conniff, the order is in no
way grounded on this passing aside.
(continued . . .)
                                             7

that the officer’s failure to appear where a validly issued subpoena exists constitutes good

cause:

                    Pursuant to West Virginia Code § 17C-5A-2(c) (2008),
              the Commissioner of the DMV has authority to continue an
              administrative license revocation hearing on his or her own
              motion when an investigative officer, despite a validly issued
              subpoena, fails to appear at the hearing and fails to seek an


       Third, the DMV’s contention that the circuit court erred in issuing an order
reversing the revocation where it did not have the administrative record is lacking in both
legal and factual basis. The issue presented on appeal to the circuit court was a pure
question of law. See Wood Cnty. Bd. Of Educ. v. Smith, 202 W. Va. 117, 502 S.E.2d 214
(1998) (finding record unnecessary where issue presented is question of law). Even
assuming, arguendo, that the record was necessary to determine the purely legal issues on
appeal to the circuit court, the DMV provided the record and a CD of the hearings one
week before the order was entered--nearly a month after the hearing.

       Fourth, the DMV argues that the circuit court erred by ruling on the merits of
Conniff’s appeal during the course of what was noticed only as a hearing on the motion
for stay. However, as noted above, at no time during the hearing did the DMV object to
the court addressing the merits of the appeal which were set forth in full in Conniff’s
assignments of error to the circuit court. See W. Va. Code § 29A-5-4(e) (1998) (2015
Repl. Vol.) (“Appeals taken on questions of law, fact or both, shall be heard upon
assignments of error filed in the cause or set out in the briefs of the appellant.”).
Subsequent to the hearing and in the intervening one month between the hearing and the
entry of the order, the DMV neither filed a brief nor asked for rehearing. Notably, the
DMV made the exact same arguments before this Court as before the circuit court on the
lone meritorious legal/procedural issue presented. As such, any purported error in this
regard was harmless.

       Finally, the DMV’s two remaining assignments of error argue that since Conniff
was found to be DUI, his procedural defenses are ostensibly immaterial. The issue of
whether DUI was proven was not on appeal before the circuit court, nor here. In fact, it
was not even challenged by Conniff at the revocation hearing. The sole legal issue
presented below and before this Court is whether the DMV violated Conniff’s due
process rights with repeated continuances, the first of which Conniff argues was
improperly granted due to the DMV’s failure to adhere to its statutory obligation to
produce the officer.


                                             8

               emergency continuance. Good cause for the continuance
               exists by virtue of the statutory duty imposed on the
               Commissioner to secure the officer’s attendance at the
               hearing under West Virginia Code § 17C-5A-2(d) (2008)
               once the licensee has specifically requested the officer’s
               attendance at the revocation proceeding.

Syl. Pt. 2, Miller v. Hare, 227 W. Va. 337, 708 S.E.2d 531 (2011) (emphasis added). The

Court reached this holding by first observing that the DMV clearly has authority to grant

continuances for good cause by virtue of both statute and regulation. Id. at 340-41, 708

S.E.2d at 534-35. In particular, West Virginia Code § 17C-5A-2(c) (2008)9 provides that

“[t]he commissioner may postpone or continue any hearing on the commissioner’s own

motion or upon application for each person for good cause shown.” In accordance with

that statute’s directive that the commissioner promulgate procedural rules to govern such

continuances, which “shall be enforced and applied to all parties equally,” id., the DMV

promulgated West Virginia Code of State Regulations § 91-1-3.8.3 (2005) 10 which

provides:

                      The Commissioner may postpone or continue a
               hearing on his or her own motion. The motion shall be for
               good cause including, but not limited to, docket management,
               availability of hearing examiners or other essential personnel,
               Division error in scheduling or notice, or mechanical failure
               of essential equipment, i.e. recording equipment, file storage
               equipment, etc.

      9
        Given the date of Conniff’s offense, the 2008 version of West Virginia Code §
17C-5A-2(c) is applicable. The current version of this portion of subparagraph (c) is, in
substance, the same. See W. Va. Code § 17C-5A-2(c)(2) (2015) (2013 Repl. Vol.).
Similarly, the current regulations governing OAH continuances are found at West
Virginia Code of State Regulations § 105-1-9 (2015).
      10
           See n.9, supra.

                                             9

The Hare Court further noted that the DMV is charged with “the exclusive

responsibility” of securing the attendance of the investigating officer at the administrative

hearing per West Virginia Code § 17C-5A-2(d).            Id. at 341, 708 S.E.2d at 535.

Accordingly, the Court found that in light of the statutory duty imposed on the DMV to

secure the officer’s attendance, good cause existed to continue the hearing where the

officer failed to appear despite a valid subpoena. Id.



              Both parties herein argue that Hare supports their position. The DMV

argues simply that since it has a statutory duty to secure the officer’s attendance upon

request of the driver, a continuance must be granted per Hare regardless of why the

officer fails to appear.    Conniff argues that Hare implies that good cause for a

continuance exists only where the DMV issues a valid subpoena and the officer does not

appear.   We find that Hare stands for neither of these propositions since the issue

presented herein was simply not present in that case.



              Our holding in Hare reflects a recognition that a driver should not be

permitted to take advantage of an officer’s failure to appear where both the driver and the

DMV have acted in good faith to follow the statutory and procedural rules. In Hare, the

DMV is blameless. In the instant case, however, it is the failure of the DMV to effectuate

service of process which occasioned the officer’s absence at the hearing. The question

then, is whether this failure is of such significance that it should require dismissal of the



                                             10

revocation outright. No part of our ruling in Hare necessarily dictates the outcome of this

question.



              Rather, this issue requires the Court to examine the statutory and regulatory

authority for the granting of continuances by the DMV. As noted above, West Virginia

Code § 17C-5A-2(c) expressly permits the DMV to grant a continuance for good cause.

West Virginia Code of State Regulations § 91-1-3.8.3 puts a finer point on what

constitutes “good cause” and provides that good cause includes but is “not limited to[]

docket management, availability of hearing examiners or other essential personnel,

Division error in scheduling or notice, or mechanical failure of essential equipment, i.e.

recording equipment, file storage equipment, etc.” (emphasis added). Without question,

the wording of § 91-1-3.8.3 places considerable discretion with the DMV as to what

constitutes “good cause.”     However, this Court has recognized that the power and

authority granted by the Legislature to create rules of procedure is nevertheless subject to

restriction and review. See Reed v. Thompson, 235 W.Va. 211, ___, 772 S.E.2d 617, 621

(2015) (observing that if agency has authority under administrative rule, “the scope of the

agency’s authority is strictly limited to what is contained in the rule”).



              While the DMV would appear to have broad latitude in determining “good

cause” for purposes of continuances, we need not wander aimlessly within the bounds of

theoretical “good cause” to determine if the DMV’s administrative failure to effectuate

service of process of the investigating officer’s subpoena is the type of “good cause”

                                              11

prescribed under the statute or regulation. Rather, we need look no further than the

explicit good cause exception for “Division error in scheduling or notice” contained in

the regulation. Inclusion of “Division error” in the list of matters which definitionally

constitute “good cause,” plainly suggests that mere oversight or other administrative error

which prevents a hearing from going forward in full on the merits may constitute good

cause. Both “scheduling” and “notice” speak directly to the impediments encountered

here—a failure to assemble all critical participants at the same time and place.11



              Importantly, the DMV did not simply refuse to honor Conniff’s request for

the investigating officer’s attendance in this case. Rather, it issued a subpoena and

attempted service via one of the prescribed means. See W. Va. C.S.R. § 91-1-3.2.1

(providing for service of administrative subpoena via registered or certified mail). It was

only when the subpoena was returned “unclaimed” by the officer that the subpoena

ostensibly “fell through the cracks” of the DMV. The DMV’s statutory duty to procure

the officer’s attendance at a hearing is not immune to human error. Nor is the well-

recognized purpose of these proceedings—“to protect innocent persons by removing

intoxicated drivers from the public roadways as quickly as possible”—furthered by

demanding flawless execution of the DMV’s subpoena obligations. Syl. Pt. 3, In re

Petition of McKinney, 218 W.Va. 557, 625 S.E.2d 319 (2005). We therefore hold that

       11
          See also Hare, 227 W. Va. at 341, 708 S.E.2d at 535 (finding investigating
officer is “individual essential to the resolution of the revocation proceeding,” absence of
whom constitutes “good cause”).


                                            12

where “Division error” results in an investigating officer’s failure to appear at a

revocation hearing as requested by the driver, such failure may constitute good cause for

a continuance pursuant to West Virginia Code § 17C-5A-2(c) and West Virginia Code of

State Regulations § 91-1-3.8.3. We therefore conclude that the circuit court erred in

ruling that the continuance of the original hearing of October 28, 2010, was lacking in

good cause and therefore violated Conniff’s due process rights.



              This holding notwithstanding, this Court is compelled to more expressly

disabuse the DMV of its brazen contention that the DMV may hold a driver interminably

hostage to its own administrative negligence throughout the revocation process.12 For

example, the DMV argues, with regard to its failure to properly subpoena the

investigating officer, that where a driver requests the presence of the investigating officer

and then has the temerity to refuse to waive this right when the DMV’s error results in

the officer’s non-appearance, a continuance is actually an accommodation to the driver

and therefore permissible under any scenario. The DMV’s argument in this regard

suggests a belief that DMV error may be used to force a driver to choose between

forfeiting rights afforded to him or prolonging, for an indeterminate period of time, the

       12
          The “rule of deference” afforded to an agency’s regulatory interpretation of a
statute traditionally applies when an agency’s interpretation is a “product of delegated
authority for rulemaking[.]” Stinson v. United States, 508 U.S. 36, 44 (1993). However,
as this Court has observed, “courts customarily withhold [such] deference from agencies
litigating positions.” W. Va. Health Care Cost Review Auth. v. Boone Mem’l Hosp., 196
W. Va. 326, 334, 472 S.E.2d 411, 419 (1996) (citing In re Snuffer, 193 W.Va. 412, 417,
456 S.E.2d 493, 498 (1995) (Cleckley, J., concurring)).


                                             13

resolution of the revocation proceeding. More broadly, the DMV seems to take the

position that drivers may be held captive by cumulative continuances into perpetuity

insofar as such continuances are grounded in ostensible “good cause.” This argument is

not only unseemly on its face, but ignores our caselaw regarding the prejudicial effect of

excessive delays in DMV revocation proceedings and must be addressed, particularly in

light of the litany of continuances which occurred subsequent to the October 28, 2010,

hearing in this case.



   B. Subsequent Continuances and Overall Delay

              We begin by noting that the DMV is statutorily charged with conducting

hearings within six months of the request for hearing: “[A]ny 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.” W.

Va. Code § 17C-5A-2(c). Irrespective of the “postponement or continuance” caveat to

this time frame, our caselaw makes clear that the DMV may not perpetually continue

revocation proceedings ad infinitum, thereby obliterating the statutory time limitations

and jeopardizing drivers’ due process rights.



              Without question, this Court has recognized that “due process concerns are

raised when there are excessive and unreasonable delays in license suspension cases.”

Holland v. Miller, 230 W. Va. 35, 39, 736 S.E.2d 35, 39 (2012) (citing Dolin v. Roberts,

173 W. Va. 443, 317 S.E.2d 802 (1984)). In that regard, this Court has held that the

                                            14

“good cause” analysis of any given continuance or series of continuances must be viewed

in light of the circumstances of the delay and any potential prejudice to the driver:

                     In the context of a license revocation proceeding
              conducted pursuant to West Virginia Code § 17C-5A-2,
              ascertaining whether the facts support a good cause basis for
              granting any continuance requires a careful examination of
              whether the delay was unreasonable or excessive under the
              circumstances, and any prejudice to the licensee shall be a
              factor considered in making the determination of whether the
              delay was unreasonable or excessive.

Syl. Pt. 4, Holland, 230 W. Va. 35, 736 S.E.2d 35.



              As noted above, it was nearly four years from Conniff’s request for a

hearing on July 6, 2010, until he received a hearing on the merits on June 4, 2014.

During that time four hearings were scheduled and continued: the first for failure of the

officer to appear, the second due to a misplaced file with the OAH, the third for illness of

the hearing examiner, and the fourth due to the DMV’s failure to renew the hearing

examiner’s recording software license. With regard to each individual continuance,

Conniff claims each was defective except for the hearing examiner illness and irrefutably

blames administrative bungling at the DMV, i.e. failure to serve the officer,

misplacement of the file with OAH, and failure to renew the hearing examiner’s

recording software. Recognizing perhaps that its continual mishandling of this case and

extraordinary delay yields it little favor, the DMV counters simply that there has been no

real prejudice established by Conniff. However, Conniff claims that due to the lapse of

time, he was unable to locate the tipster who allegedly witnessed the hit and run that gave


                                             15

rise to his arrest13 and that he incurred attorney fees and costs for each continued hearing,

for which the DMV refused to reimburse him.



                This Court has observed that “[s]ome delays are presumptively prejudicial,

and if found to be presumptively prejudicial, then the government has the burden to rebut

the presumption.” Petry v. Stump, 219 W.Va. 197, 200, 632 S.E.2d 353, 356 (2006). We

have little difficulty in concluding that the overall four-year delay in this matter and

circumstances surrounding the various continuances are of such a nature as to render the

delay presumptively prejudicial. See Petry, 219 W.Va. 197, 632 S.E.2d 353 (finding six-

year delay presumptively prejudicial); In re Petition of Donley, 217 W. Va. 449, 618

S.E.2d 458 (2005) (finding three-year delay unreasonable); Meadows v. Reed, No. 14­

0138, 2015 WL 1588462 (W. Va. March 16, 2015) (finding four-year delay resulted in

prejudice to driver). The DMV’s inexcusable administrative mishandling of the file,

which resulted in its complete failure to appear for the February 25, 2011, hearing, gave

rise to a subsequent one year and three month delay until the next scheduled hearing on

May 18, 2012, which was then cancelled due to the hearing examiner’s illness. This

mounting delay was then compounded by an additional seven month delay until the

January 22, 2013, hearing which was continued because the DMV inexplicably failed to

provide its hearing examiner with appropriate recording software; this continuance itself




       13
            Officer Ward confirmed that he had likewise been unable to locate her.

                                              16

resulted in another one year and almost five month delay until the final hearing on the

merits.



              However, unlike the cases cited above wherein the Court found such delays

of similar length prejudicial and dismissed the proceedings, we find that in this case there

is no appreciable prejudice to Conniff that cannot be remedied with lesser measures than

outright dismissal. For example, in Petry, a revocation hearing was conducted, during

which the driver introduced photographs and expert testimony; the DMV thereafter

attempted to have another hearing prior to which it was revealed that all of the evidence

adduced during the original hearing was lost. 219 W. Va. at 200, 632 S.E.2d at 356.

Moreover, in Meadows, the four-year delay encompassed the death of the investigating

officer, whose conclusions in the DUI information sheet were hotly contested by the

driver. 2015 WL 1588462 at *6.



              In this case, Conniff presented no evidence at the June 4, 2014, hearing in

defense of the DMV’s assertion that he was driving under the influence. Moreover, his

cross-examination of the investigating officer was largely limited to the issue of whether

the officer had been properly subpoenaed to the original hearing. Conniff’s inability to

locate the tipster witness who called in Conniff’s hit-and-run was rendered immaterial by

Conniff’s concession to the investigating officer that he had, in fact, struck another

vehicle. Finally, Conniff has failed to demonstrate how the DMV’s refusal to reimburse

him attorney fees and costs for the continued hearings impeded his defense, to whatever

                                            17

extent he intended to present one. Accordingly, while we find the DMV’s delay in this

matter egregious and presumptively prejudicial, the DMV has rebutted this presumption

by demonstrating that no actual prejudice to Conniff’s defense resulted. See Donley

(refusing to dismiss license suspension after unreasonable delay because claimant

suffered no prejudice); State ex rel. Cline v. Maxwell, 189 W. Va. 362, 432 S.E.2d 32

(1993) (holding dismissal too strong a remedy absent prejudice resulting from delay);

David v. Comm’r of W. Va. Div. of Motor Vehicles, 219 W. Va. 493, 637 S.E.2d 591

(2006) (declining to dismiss license revocation proceeding after improper continuance

and awarding fees instead).



              Nevertheless, we do find that the delay and seemingly perpetual DMV

mismanagement of this matter certainly warrant some measure of relief to Conniff. In

Syllabus Point 2, in part, of David, this Court held that

              [w]here the [DMV] has improperly delayed a driver’s license
              revocation proceeding . . . and thereby denied due process of
              law to a licensee, a party who has incurred substantial
              expenses as a result of the improper delay and denial may
              recover the party’s expenses so incurred from the [DMV] . . .
              .

219 W. Va. 493, 637 S.E.2d 591. In David, we likewise found that excessive delay

occurred, but recognized that dismissal of the proceedings would run counter to the

principle that license revocation proceedings should be, where possible and equitable,

resolved on their merits and conducted in a manner “devoid of those sporting

characteristics . . . of a game of forfeits[.]” 219 W. Va. at 498, 637 S.E.2d 596 (quoting


                                             18

Rosier v. Garron, Inc., 156 W. Va. 861, 875, 199 S.E.2d 50, 58 (1973)). We find that

three of the four continuances (excluding the hearing examiner’s illness) were occasioned

exclusively by the DMV’s negligence in matters which in fairness ought to be routine for

that agency. As a result of the cumulative effect of those continuances, Conniff is

entitled to an award of reasonable attorney fees and costs pursuant to Syllabus Point 2 of

David.



                                  IV. CONCLUSION

             Accordingly, we reverse the order of the Circuit Court of Ohio County,

and, in light of the DMV’s uncontested conclusion that Conniff was DUI, remand for an

order reinstating Conniff’s license revocation, as well as an award of reasonable attorney

fees and costs incurred by Conniff as a result of the October 28, 2010, February 25, 2011,

and January 22, 2013, continuances.



                                                 Reversed and remanded with instructions.




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