        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                               September 2015 Term
                                                              FILED
                                                        September 24, 2015
                                                               released at 3:00 p.m.
                                   No. 13-1180                 RORY L. PERRY II, CLERK
                                                             SUPREME COURT OF APPEALS
                                                                 OF WEST VIRGINIA




              PATRICIA S. REED, COMMISSIONER OF THE

             WEST VIRGINIA DIVISION OF MOTOR VEHICLES,

                       Petitioner Below, Petitioner



                                        V.


                              ROBIN J. RINER,
                         Respondent Below, Respondent



               Appeal from the Circuit Court of Kanawha County

                       Honorable Tod J. Kaufman, Judge

                          Civil Action No. 13-AA-69


                        REVERSED AND REMANDED



                             Submitted: September 16, 2015
                             Filed: September 24, 2015

Patrick Morrisey                                 Harley O. Wagner
Attorney General                                 The Wagner Law Firm
Elaine L. Skorich                                Martinsburg, West Virginia
Assistant Attorney General                       Attorney for Respondent
Charleston, West Virginia
Attorneys for Petitioner


JUSTICE DAVIS 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.’

Syllabus Point 1, Muscatell v. Cline, 196 W. Va. 588, 474 S.E.2d 518 (1996).” Syllabus

point 1, Miller v. Epling, 229 W. Va. 574, 729 S.E.2d 896 (2012).



              2.     “‘A statutory provision which is clear and unambiguous and plainly

expresses the legislative intent will not be interpreted by the courts but will be given full

force and effect.’ Syl. Pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951).”

Syllabus point 1, State v. Jarvis, 199 W. Va. 635, 487 S.E.2d 293 (1997).




                                              i
Davis, Justice:

              This is an appeal brought by Petitioner Patricia S. Reed, Commissioner of the

West Virginia Department of Motor Vehicles (“the DMV”)1, from an adverse judgment in

the Circuit Court of Kanawha County. In its October 23, 2013, order, the circuit court

affirmed an order issued by the Office of Administrative Hearings (“the OAH”) reversing

a one-year revocation of Respondent Robin J. Riner’s (“Ms. Riner”) drivers license for her

failure to submit to a secondary chemical test.2 The OAH reversed upon finding that the

arresting officer failed to comply with the implied consent statute, West Virginia Code §

17C-5-7 (2010) (Supp. 2010).3 The DMV herein contends that the circuit court erred by

affirming the OAH’s reversal of Ms. Riner’s drivers license revocation on this basis. Upon

our review of the parties’ briefs and oral arguments, the appendix records designated for our

consideration, and the pertinent authorities, we reverse and remand for the reinstatement of

the revocation of Ms. Riner’s drivers license.


              1
               While this case was pending before the Court, Patricia S. Reed replaced
Steven O. Dale as Commissioner of the West Virginia Division of Motor Vehicles. Pursuant
to Rule 41(c) of the West Virginia Rules of Appellate Procedure, the name of the current
public officer has been substituted accordingly in this action.
              2
               Ms. Riner’s drivers license was also revoked for a period of six months for
driving under the influence of alcohol, controlled substances, or drugs. This six-month
revocation was upheld by the OAH. This portion of the OAH order has not been appealed
and, therefore, is not addressed in this opinion.
              3
                West Virginia Code § 17C-5-7 was amended in 2013, though the relevant
portion of the statute was unchanged. See W.Va. Code § 17C-5-7 (2013) (Repl. Vol. 2013).
Because the traffic stop at issue occurred in 2011, the 2010 version of the statute is
applicable to the instant matter.

                                             1

                                             I.


                     FACTUAL AND PROCEDURAL HISTORY


              On June 23, 2011, Corporal J. Jones (“Corporal Jones”) of the Berkeley County

Sheriff’s Department observed a vehicle driven by Ms. Riner cross the center line two times.

Corporal Jones executed a traffic stop during which he smelled alcohol. At that time, Ms.

Riner admitted that she had consumed one beer. Corporal Jones called for another officer

to assist him, and Deputy A.T. Burns (“Deputy Burns”), also of the Berkeley County

Sheriff’s Department, came to the scene. Deputy Burns, the investigating officer, detected

alcohol on Ms. Riner’s breath and found that her eyes were bloodshot and that she was

speaking quickly. He administered field sobriety tests and determined that she had failed the

same. After administering a preliminary breath test (“PBT”),4 he placed Ms. Riner under

arrest for driving under the influence of alcohol, controlled substances, or drugs (“DUI”) in

violation of West Virginia Code § 17C-5-2 (2010) (Supp. 2010).5



              Deputy Burns transported Ms. Riner to the Berkeley County Sheriff’s

Department where he read to her an implied consent statement. He also gave her a written

copy of that statement, which provides as follows:

              4
             Deputy Burns failed to present proof of his certification to operate the model
of PBT administered, so the result of that test was not considered in subsequent proceedings.
              5
               The relevant text of West Virginia Code § 17C-5-2(d) (2010) (Supp. 2010)
provides that “[a]ny person who: (1) Drives a vehicle in this state while he or she: (A) Is
under the influence of alcohol; . . . (2) Is guilty of a misdemeanor . . . .”

                                             2

               Pursuant to state law (Chapter 17C, Article 5, Section 7) I am
               now directing you to take an approved secondary chemical test
               of your breath for the purpose of determining the alcoholic
               content of your blood. If you refuse to submit to this test, your
               privilege to operate a motor vehicle in this state will be revoked
               for a period of at least 45 days and up to life. If you refuse you
               will have fifteen minutes in which to change your mind after
               which time your refusal will be deemed final and the arresting
               officer will have no further duty to offer you this approved
               secondary chemical test.

Deputy Burns indicated on the written statement that Ms. Riner refused to sign her name.

He then signed the implied consent statement where required.



               On July 14, 2011, the DMV’s Director of Driver Services sent an order of

revocation to Ms. Riner. The order imposed a six-month revocation of her license to operate

a motor vehicle in West Virginia for DUI and a one-year revocation resulting from her

refusal to submit to the secondary chemical test. Ms. Riner appealed that order to the OAH,

which conducted an administrative hearing on March 1, 2012. While providing sworn

testimony before the OAH, Ms. Riner stated that, during the conversation in which Deputy

Burns read the implied consent statement to her, he also told her three times that she did not

have to take the test. She further testified that she “almost felt like he was telling [her] not

to do it . . . .” In response, Deputy Burns testified that it was his practice to read and explain

the implied consent statement, in addition to answering questions about that statement. He

stated that he told people the secondary chemical test was their choice and they did not have

to take it if they did not want to do so. He explained that he would not “grab their head and

                                                3

force them [to submit to the test].” Following the hearing, the OAH entered its order

affirming the revocation for DUI but reversing the revocation for refusing to submit to the

secondary chemical test. As part of its findings, the OAH concluded that Deputy Burns

failed to give Ms. Riner “an adequate oral warning of the consequences for refusing to

submit to the secondary test . . . .”



               The DMV appealed to the Circuit Court of Kanawha County only that portion

of the OAH order reversing the one-year revocation of Ms. Riner’s license based on her

refusal to submit to the secondary chemical test. By order entered on October 23, 2013, the

circuit court affirmed the OAH’s final order. Following that ruling, the DMV filed the

instant appeal from the circuit court’s order.6



                                              II.


                                  STANDARD OF REVIEW


               This Court previously has established the standards for our review of a circuit

court’s order deciding an administrative appeal as follows:

                       “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


               6
                   See supra note 2.

                                              4

              findings to be clearly wrong.” Syllabus Point 1, Muscatell v.
              Cline, 196 W. Va. 588, 474 S.E. 2d 518 (1996).

Syl. pt. 1, Miller v. Epling, 229 W. Va. 574, 729 S.E.2d 896 (2012). We also note that,

                      [u]pon 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.[’]

Syl. pt. 2, Shepherdstown Volunteer Fire Dept. v. State ex rel. State of W. Va. Human Rights

Comm’n, 172 W. Va. 627, 309 S.E.2d 342 (1983). Accord Syl. pt. 2, Dale v. Ciccone, 233

W. Va. 652, 760 S.E.2d 466 (2014) (per curiam). With these standards in mind, we will

address the issues herein raised.



                                             III.

                                       DISCUSSION

              On appeal, the DMV asserts a single assignment of error: the circuit court and

the OAH erred in creating a nonexistent requirement for compliance with West Virginia

Code § 17C-5-7(a), the implied consent statute, as there is no requirement therein for an

                                              5

“adequate oral warning.” The DMV argues that the OAH, and the circuit court through its

affirmation of the OAH’s order, erred by turning the statements of Deputy Burns and Ms.

Riner into a credibility issue in determining whether the oral warning given by Deputy Burns

was adequate. In response, Ms. Riner contends that the officer went outside of the plain

reading of the form by engaging in additional conversation with her; therefore, her refusal

to submit to the secondary test was neither knowledgeable nor voluntary.



                West Virginia Code § 17C-5-7(a) provides as follows:

                        If any person under arrest as specified in section four
                [§ 17C-5-4][7] of this article refuses to submit to any secondary
                chemical test, the tests shall not be given: Provided, That prior
                to the refusal, the person is given an oral warning and a written
                statement advising him or her that his or her refusal to submit to
                the secondary test finally designated will result in the revocation
                of his or her license to operate a motor vehicle in this state for


                7
                    The relevant language of West Virginia Code § 17C-5-4 (2010) (Supp. 2011)
provides that

                [a]ny person who drives a motor vehicle in this state is
                considered to have given his or her consent by the operation of
                the motor vehicle to a preliminary breath analysis and a
                secondary chemical test of either his or her blood, breath or
                urine for the purposes of determining the alcoholic content of
                his or her blood. . . . Any person to whom a preliminary breath
                test is administered who is then arrested shall be given a written
                statement advising him or her that his or her refusal to submit to
                the secondary chemical test pursuant to subsection (d) of this
                section, will result in the revocation of his or her license to
                operate a motor vehicle in this state for a period of at least one
                year and up to life.

                                                6

              a period of at least forty-five days and up to life; and that after
              fifteen minutes following the warnings the refusal is considered
              final. The arresting officer after that period of time expires has
              no further duty to provide the person with an opportunity to take
              the secondary test. The officer shall, within forty-eight hours of
              the refusal, sign and submit to the Commissioner of Motor
              Vehicles a written statement of the officer that: (1) He or she
              had reasonable grounds to believe the person had been driving
              a motor vehicle in this state while under the influence of
              alcohol, controlled substances or drugs; (2) the person was
              lawfully placed under arrest for an offense relating to driving a
              motor vehicle in this state while under the influence of alcohol,
              controlled substances or drugs; (3) the person refused to submit
              to the secondary chemical test finally designated in the manner
              provided in section four of this article; and (4) the person was
              given a written statement advising him or her that his or her
              license to operate a motor vehicle in this state would be revoked
              for a period of at least forty-five days and up to life if he or she
              refused to submit to the secondary test finally designated in the
              manner provided in section four of this article. The signing of
              the statement required to be signed by this section constitutes an
              oath or affirmation by the person signing the statement that the
              statements contained in the statement are true and that any copy
              filed is a true copy. The statement shall contain upon its face a
              warning to the officer signing that to willfully sign a statement
              containing false information concerning any matter or thing,
              material or not material, is false swearing and is a misdemeanor.
              Upon receiving the statement the commissioner shall make and
              enter an order revoking the person’s license to operate a motor
              vehicle in this state for the period prescribed by this section.[8]


(Footnotes added). Before we examine this statute, we note that “[t]he primary object in

construing a statute is to ascertain and give effect to the intent of the Legislature.” Syllabus

point 1, Smith v. State Workmen’s Compensation Commissioner, 159 W. Va. 108, 219 S.E.2d

              8
              Ms. Riner does not argue that Deputy Burns failed to comply with the
requirement to submit this statement.

                                               7

361 (1975). See also the Coordinating Council for Indep. Living, Inc. v. Palmer, 209 W. Va.

274, 281, 546 S.E.2d 454, 461 (2001) (“When interpreting a legislatively created law, we

typically afford the statute a construction that is consistent with the Legislature’s intent.”).

Further, “[a] statutory provision which is clear and unambiguous and plainly expresses the

legislative intent will not be interpreted by the courts but will be given full force and effect.”

Syl. pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951). Accord Syl. pt. 2, Butcher

v. Miller, 212 W. Va. 13, 569 S.E.2d 89 (2002) (per curiam). However, “[a] statute that is

ambiguous must be construed before it can be applied.” Syl. pt. 1, Farley v. Buckalew, 186

W. Va. 693, 414 S.E.2d 454 (1992). Accord Syl. pt. 3, Mace v. Mylan Pharm., Inc., 227

W. Va. 666, 714 S.E.2d 223 (2011).



              In Butcher, this Court previously addressed the language of West Virginia Code

§ 17C-5-7(a) requiring the officer to inform the driver “that his refusal to submit to the

secondary test finally designated will result in the revocation of his license to operate a motor

vehicle in this state for a period of at least one year and up to life.” Butcher, 212 W. Va. at

15, 569 S.E.2d at 91 (emphasis in original).9 In that case, the Court found that the pertinent

               9
               It should be noted that the author of this opinion dissented from the majority’s
decision in Butcher v. Miller, 212 W. Va. 13, 569 S.E.2d 89 (2002) (per curiam). However,
Butcher involved an issue different from the one presently before the Court in the case sub
judice. In Butcher, the Court invalidated an implied consent statement because the language
the officer used to orally communicate the implied consent statement differed from the
implied consent language required by West Virginia Code § 17C-5-7. Butcher at 17, 569
S.E.2d at 93. By contrast, in the instant case Ms. Riner does not contend that Deputy Burns
                                                                                 (continued...)

                                               8

language of West Virginia Code § 17C-5-7(a) was clear and unambiguous. Butcher, 212

W Va. 17, 569 S.E.2d at 93. While that statute was amended between the time of the traffic

stop at issue in Butcher and 2011, when Ms. Riner was involved in the traffic stop at issue

herein, the language requiring that an officer inform the driver that his refusal to submit to the

secondary test will result in the revocation of his license is identical. That statutory language

remains clear and unambiguous.



              As set forth in Butcher, under the statute, an officer making a DUI arrest must

inform the arrestee that a refusal to submit to a chemical breath test will result in a license

suspension. 212 W. Va. at 17, 569 S.E.2d at 93. The statute continues by requiring that the

officer set forth the potential penalties for such refusal, both orally and by providing a written

copy of that statement to the arrestee. See W. Va. Code §17C-5-7(a). Ms. Riner does not

dispute that the officer complied with these duties. It is undisputed that Ms. Riner refused to

submit to the secondary test. However, she contends that Deputy Burns’s alleged statement

that she did not have to take the test “almost” felt like he was telling her not to take the test.



              In reversing Ms. Riner’s revocation, the OAH observed a dispute of fact as to

the extraneous statements made by Deputy Burns related to Ms. Riner’s refusal of the



              9
              (...continued)
deviated from the language set forth in the statute when he read the implied consent
statement to her.

                                                9

secondary chemical test. This was error insofar as no credibility determination was necessary

in this instance.10 West Virginia Code § 17C-5-7 does not require such a credibility

determination, nor does it require that the arrestee’s refusal be knowingly and intelligently

made. See In Re Matherly, 177 W. Va. 507, 509, 354 S.E.2d 603, 605 (1987) (“W. Va. Code

17C-5-7 [1983] . . . does [not] require that the refusal be intelligently, knowingly and willingly

made. . . . We will not engraft onto the statute a specific intent requirement where it is

apparent that none was intended by the legislature.”). The statute simply required that Deputy

Burns read the implied consent statement to Ms. Riner and provide her with a copy of the

same. As evidenced by both his testimony and his signature on the implied consent statement,

Deputy Burns complied with those statutory duties. Further, Ms. Riner does not dispute that

he read the required statement or that he provided a copy of that statement to her.




              Ms. Riner’s understanding of statements made by Deputy Burns is not within

the officer’s control, provided that the information given by Deputy Burns to Ms. Riner, as

the arrestee, constitutes correct statements of law or are not contrary to law. The controlling

facts in this case are that Deputy Burns both read and provided a written copy of the implied



               10
               Assuming arguendo that Deputy Burns made the statement alleged by Ms.
Riner, we find that the same is not inconsistent with West Virginia Code § 17C-5-7(a).
Rather than simply evaluating whether Deputy Burns complied with the plain language of
West Virginia Code § 17C-5-7 by informing Ms. Riner of her rights thereunder, the OAH
erroneously considered Ms. Riner’s interpretation of extraneous comments made by Deputy
Burns to determine that his reading of the implied consent statement was inadequate.

                                               10

consent statement required by law and that the alleged statement made by Deputy Burns was

not contrary to West Virginia law. Consequently, we find that Deputy Burns fulfilled his

statutory obligation to read and provide a written copy of the implied consent statement to Ms.

Riner and that she refused to take the secondary chemical test. Therefore, the circuit court

erred in upholding the OAH’s decision reversing the revocation based upon that refusal.




                                              IV.


                                       CONCLUSION


              For the reasons set forth in the body of this opinion, the October 23, 2013, order

of the Circuit Court of Kanawha County is reversed to the extent that it affirmed the OAH’s

decision to reinstate Ms. Riner’s drivers license despite her refusal to submit to the secondary

chemical test. Finally, we remand for reinstatement of the revocation of Ms. Riner’s drivers

license.

                                                                     Reversed and Remanded.




                                              11

