No. 14-0342 – Patricia S. Reed, Commissioner of the West Virginia Division of Motor
Vehicles v. Dustin Hall
                                                                           FILED
                                                                          May 22, 2015

                                                                      RORY L. PERRY II, CLERK

                                                                    SUPREME COURT OF APPEALS

LOUGHRY, Justice, concurring:                                           OF WEST VIRGINIA




              I completely agree with the Court’s conclusion that Mr. Hall’s driver’s license

must be revoked, and he must be disqualified from operating commercial vehicles, based

upon his refusal to submit to the designated secondary chemical breath test in violation of

West Virginia Code § 17C-5-7 (2010)1 (also referred to as an “implied consent” violation).

I write separately, however, to note that because of Mr. Hall’s clear violation of the implied

consent law, it was unnecessary for this Court to also address the DMV Commissioner’s

separate grounds for revocation and disqualification–the act of driving under the influence.

As such, it was also unnecessary for the Court to address the blood test issue.



              Mr. Hall was arrested for a single episode of DUI occurring on February 3,

2011. This arrest was the reason why the police required him to submit to a secondary

chemical breath test. In the administrative orders, the DMV Commissioner specified two

separate legal grounds for revoking his driver’s license: his act of driving under the

influence and his act of refusing to submit to the secondary chemical test. Either reason, by



       1
        In this concurrence, I refer to the 2010 version of the DMV statutes that were in
effect when Mr. Hall was arrested and refused the secondary breath test.

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itself, provided a sufficient basis for the Commissioner to act. However, while there were

two separate grounds, the Commissioner could only revoke the license once for the events

of February 3, 2011. The Legislature has mandated that a period of revocation for driving

under the influence shall run concurrently with a period of revocation for an implied consent

violation:

              A revocation under this section shall run concurrently with the
              period of any suspension or revocation imposed in accordance
              with other provisions of this code and growing out of the same
              incident which gave rise to the arrest for driving a motor vehicle
              while under the influence of alcohol, controlled substances or
              drugs and the subsequent refusal to undergo the test finally
              designated in accordance with the provisions of section four of
              this article.

West Virginia Code § 17C-5-7(a), in part. Notably, the period of revocation for Mr. Hall’s

refusal to submit to the breath test was longer than his period of revocation would have been

for DUI.



              Moreover, for purposes of determining second or subsequent occurrences, an

implied consent revocation counts the same as a DUI revocation. The statute that specifies

what length of administrative revocation or suspension to impose for various offenses

provides, in pertinent part, the following:

                     For purposes of this section, where reference is made to
              previous suspensions or revocations under this section, the
              following types of criminal convictions or administrative
              suspensions or revocations shall also be regarded as suspensions
              or revocations under this section or section one of this article:

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                     ....
                     (3) Any revocation under the provisions of section
                     seven, article five of this chapter [the implied
                     consent statute] for conduct which occurred
                     within the ten years immediately preceding the
                     date of arrest.

W.Va. Code § 17C-5A-2(p) (2010). Thus, should Mr. Hall commit DUI in the future, the

instant revocation for his implied consent violation will be considered when assessing

additional administrative penalties based upon multiple DUI offenses.



              Accordingly, this Court’s ruling on the implied consent issue is fully

determinative of this case, and the remainder of the Court’s discussion is mere surplusage.

As Justice Frankfurter once observed, “[w]hen there is no duty to speak on such issues there

is a duty not to speak.” Poulos v. State of New Hampshire, 345 U.S. 395, 414 (1953)

(Frankfurter, J., concurring). Nonetheless, because the Court has correctly addressed the

implied consent issue, I respectfully concur.




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