          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                    January 2015 Term
                                                                     FILED
                                                                   May 22, 2015
                                                                   released at 3:00 p.m.
                                      No. 14-0342                  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.

                                  DUSTIN HALL,
                            Respondent Below, Respondent



                  Appeal from the Circuit Court of Kanawha County

                      The Honorable James C. Stucky, Judge

                            Civil Action No. 13-AA-105


         AFFIRMED, IN PART, REVERSED, IN PART, AND REMANDED



                               Submitted: April 7, 2015
                                Filed: May 22, 2015


Janet E. James, Esq.                                    William C. Forbes, Esq.
Senior Assistant Attorney General                       W. Jesse Forbes, Esq.
Charleston, West Virginia                               Forbes Law Offices, PLLC
Counsel for Petitioner                                  Charleston, West Virginia
                                                        Counsel for Respondent


CHIEF JUSTICE WORKMAN delivered the Opinion of the Court.

JUSTICE LOUGHRY concurs and reserves the right to file a concurring opinion.

                               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 [reversed] 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. “A person’s driver’s license may be suspended under W. Va. Code, 17C-5­

7(a) [1983] for refusal to take a designated breathalyzer test.” Syl. Pt. 2, Moczek v. Bechtold,

178 W. Va. 553, 363 S.E.2d 238 (1987).



              4. The language of West Virginia Code § 17C-5-4(c) (2010), requiring a

secondary blood or breath test to be administered “at the direction of the arresting law-


                                               i
enforcement officer,” does not preclude the arresting officer from directing or authorizing

another qualified law enforcement officer to explain implied consent and administer a

chemical test for intoxication.



              5. “A person who is arrested for driving under the influence who requests and

is entitled to a blood test, pursuant to W. Va. Code, 17C-5-9 [1983], must be given the

opportunity, with the assistance and if necessary the direction of the arresting law

enforcement entity, to have a blood test that insofar as possible meets the evidentiary

standards of 17C-5-6 [1981].” Syl. Pt. 2, In re Burks, 206 W.Va. 429, 525 S.E.2d 310

(1999).



              6. “The requirement that a driver arrested for DUI must be given a blood test

on request does not include a requirement that the arresting officer obtain and furnish the

results of that requested blood test.” Syl. Pt. 3, In re Burks, 206 W.Va. 429, 525 S.E.2d 310

(1999).




                                             ii
Workman, Chief Justice:



               The West Virginia Division of Motor Vehicles (hereinafter “the DMV”)1

appeals an order of the Circuit Court of Kanawha County affirming an order of the Office

of Administrative Hearings (hereinafter “OAH” or “hearing examiner”) that reversed a

license revocation order entered by the DMV Commissioner based upon the arrest of Dustin

Hall for driving under the influence of alcohol (hereinafter “DUI”). Upon thorough review

of the record, arguments of counsel, and applicable precedent, this Court reverses the order

of the circuit court, in part, and affirms it, in part.



                               I. Factual and Procedural History

               On February 3, 2011, Officer N. W. Harden of the South Charleston Police

Department was assisting two other officers of the department with a traffic stop along

Montrose Drive in South Charleston, West Virginia. Officer Harden overheard a radio call

from the Kanawha County 911 Center regarding a vehicle being driven the wrong way on

MacCorkle Avenue approaching Montrose Drive. Officer Harden observed the vehicle

traveling south in the northbound lanes of Montrose Drive, and he stopped the vehicle near



       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

the eastbound ramp to Interstate 64.



                 According to the testimony of Officer Harden, the driver of the vehicle, Mr.

Hall,2 had difficulty locating his driver’s license and appeared disoriented and confused.

When asked to walk to the rear of the vehicle, Mr. Hall was unsteady walking to the roadside

and while standing. Mr. Hall informed Officer A. J. Davis, also present at the scene, that he

had consumed alcoholic beverages with his boss.



                 Officer Harden explained and administered the horizontal gaze nystagmus test

to Mr. Hall. During the administration of that test, Mr. Hall’s eyes displayed lack of smooth

pursuit and distinct and sustained nystagmus at maximum deviation. He had onset of

nystagmus prior to forty-five degrees in both eyes. Officer Harden also explained and

demonstrated the walk-and-turn and one leg stand tests, but Mr. Hall refused to perform

those tests.



                 Officer Harden placed Mr. Hall under arrest for DUI at 3:17 a.m. Officer

Harden thereafter transferred custody of Mr. Hall to Officer J. D. Keeney, also with the South

Charleston Police Department, and Officer Keeney transported Mr. Hall to the police

department’s headquarters. At the South Charleston police station, Officer J. A. Bailes read


       2
           Mr. Hall was also licensed to drive commercial motor vehicles.

                                               2

the West Virginia implied consent form to Mr. Hall, advising him that the penalty for refusal

of submit to the secondary breath test was license revocation. Mr. Hall signed the implied

consent form but refused to take the secondary breath test, stating that he wished to have a

blood test. Officer Bailes testified that Mr. Hall told him “[a]t least twice” that he refused

to take the test. Officer Bailes stated, “I specifically asked him twice, once he had a 15­

minute period to change his mind.”



              Subsequently, Officer Harden was informed that Mr. Hall had refused the

secondary breath test and had requested a blood test. Specifically, Officer Harden testified,

                     By the time the wrecker came and had taken [Mr. Hall’s]
              vehicle and I had gotten back to our headquarters, I was
              informed that Mr. Hall didn’t want to take the breathalyzer, but
              wished to have blood drawn. So right before we left, I asked
              him again for the 15 minutes if he wanted to take it or have
              blood drawn. He would have rather had blood drawn.

Officer Harden explained that “the officers then processed, fingerprinted and photographed

Mr. Hall, and then we took him and put him in the back of the police cruiser for

transportation to Thomas Memorial Hospital [located in South Charleston, West Virginia]

to have blood drawn.” Ms. Andrea Gray withdrew blood from Mr. Hall at 4:26 a.m., and she

gave the blood specimen to Officer Harden. Officer Keeney then transported Mr. Hall back

to the South Charleston Police Department for arraignment and thereafter took him to the

South Central Regional Jail.



                                              3

               Officer Harden testified that he “placed the blood sample into Evidence Locker

No. 5 around 0541 hours in the morning for submission to the West Virginia State Police

Laboratory.” When Officer Harden later spoke with a technician at the South Charleston

Police Department about the blood sample, he was informed that the West Virginia State

Police Laboratory had not been accepting blood specimens, so the sample had not been

submitted for analysis. Officer Harden testified that the blood sample remained at the police

department.



               Mr. Hall’s driver’s license was revoked by the DMV for both DUI and the

refusal to submit to the designated chemical test, effective March 16, 2011. Mr. Hall’s

commercial driver’s license was disqualified on the same grounds as of that date. The DMV

regular driver’s license revocation order provided that Mr. Hall’s license was revoked for one

year for “refusing the secondary chemical test” and six months for “driving under the

influence.”3



               Mr. Hall requested an administrative hearing before the OAH, and such hearing

was conducted on June 27, 2012, and October 17, 2012. Mr. Hall appeared but did not

testify. On July 29, 2013, the OAH entered a “Decision of the Hearing Examiner and Final


       3
        The commercial license revocation order was worded slightly differently, combining
the penalty for the two separate infractions and revoking the license for a period of one year
for “refusing the secondary chemical test and/or driving under the influence.”

                                              4

Order of the Chief Hearing Examiner” rescinding Mr. Hall’s license revocation and

disqualification. With regard to the implied consent form provided to Mr. Hall, the hearing

examiner found that the investigating officer was not the officer who directed Mr. Hall to

submit to the secondary breath test; “rather, this was done by another officer who did not

arrest [Mr. Hall].” The hearing examiner also noted that the testimony “suggests that [Mr.

Hall] may have been given a choice, or at least led to believe he had a choice, as to whether

he wanted to take a breath test or whether he wanted to take a blood test.” Based upon that

issue, the hearing examiner stated: “Therefore, the portions of the Orders heretofore entered

which disqualified [Mr. Hall] from driving a commercial vehicle and revoked his privilege

to drive any motor vehicle for refusing to submit to a designated secondary chemical test

should likewise be rescinded.”



              Further, the hearing examiner found that Mr. Hall was effectively denied an

independent blood test “when the Investigating Officer failed to cause [Mr. Hall’s] blood

specimens to be submitted to a qualified laboratory for the specimens could be [sic] analyzed

for their blood alcohol concentration.” The hearing examiner found that the absence of the

blood test “denied him the right to obtain evidence for his defense” and constituted a denial

of “his due process rights.” On the basis of the denial of the right to obtain a blood test, the

hearing examiner stated:

                     Based upon the foregoing analysis, the only appropriate
              sanction that can be imposed due to the denial of [Mr. Hall’s]

                                               5

              right to the independent blood test is to rescind the portions of
              the Orders heretofore entered which disqualified [Mr. Hall]
              from driving a commercial motor vehicle and revoking his
              privilege to drive any motor vehicle for driving a motor vehicle
              in this state while under the influence of alcohol.


              The circuit court entered a final order on March 6, 2014, upholding the OAH’s

order. The DMV now appeals to this Court and argues that the circuit court erred in

upholding the OAH’s rescission of the driver’s license revocations.



                                   II. Standard of Review

              This Court has previously 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
              findings to be clearly wrong.

Syl. Pt. 1, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996). Syllabus point two of

Muscatell provides: “In cases where the circuit court has [reversed] 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.” With these standards as guidance, we consider the

parties’ arguments.


                                              6

                                      III. Discussion

              This case is approached most effectively by addressing the independent

components which inform this Court’s ultimate determination. Specifically, the chronology

of Mr. Hall’s interactions with law enforcement personnel must be examined with emphasis

upon compliance with statutory provisions relating to implied consent and the right to

demand a blood test.



                                    A. Implied Consent

              West Virginia’s implied consent law, codified in West Virginia Code § 17C-5­

4 (2010)4 provided, in relevant part, as follows:

              (a) Any 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.
              ....

              (c) A secondary test of blood, breath or urine is incidental to a
              lawful arrest and is to be administered at the direction of the
              arresting law-enforcement officer having reasonable grounds to
              believe the person has committed an offense prohibited by
              section two of this article or by an ordinance of a municipality
              of this state which has the same elements as an offense


       4
       West Virginia Code § 17C-5-4 (2010) applies in this case. The statute was amended
in 2013, but those amendments do not affect the substantive issues evaluated in this opinion.
West Virginia Code § 17E-1-15 (2005) provides a similar statutory scheme applicable to
implied consent for commercial motor vehicle drivers.

                                              7

              described in section two of this article.

              (d) The law-enforcement agency that employs the
              law-enforcement officer shall designate which type of secondary
              test is to be administered: Provided, That if the test designated
              is a blood test and the person arrested refuses to submit to the
              blood test, then the law-enforcement officer making the arrest
              shall designate either a breath or urine test to be administered.
              Notwithstanding the provisions of section seven of this article,
              the refusal to submit to a blood test only may not result in the
              revocation of the arrested person's license to operate a motor
              vehicle in this state.

Id. (emphasis supplied). The secondary test to be administered, pursuant to subsection (d)

above was the secondary breath test. Furthermore, West Virginia Code § 17C-5-7(a) (2010)

provided, in relevant part, as follows:

                      If any person under arrest as specified in section four [§
              17C-5-4] 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
              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.



              This Court has held that “[a] person’s driver’s license may be suspended under

W.Va.Code, 17C-5-7(a) [1983] for refusal to take a designated breathalyzer test.” Syl. Pt.

2, Moczek v. Bechtold, 178 W. Va. 553, 553, 363 S.E.2d 238, 238 (1987). This is consistent


                                              8

with the underlying principles of implied consent laws, which historically have been

“‘viewed as an effort on the part of the state to decrease the damage to persons and property

arising from drivers operating motor vehicles while under the influence of intoxicating

liquor.’ Jordan v. Roberts, 161 W.Va. 750, 754, 246 S.E.2d 259, 262 (1978).” State v.

Stone, 229 W. Va. 271, 283-84, 728 S.E.2d 155, 167-68 (2012); see also People v. Jordan,

142 Cal. Rptr. 401, 408 (Cal. Ct. App. 1977) (stating that “while the immediate purpose of

the implied consent law is to obtain the best evidence of blood-alcohol content, the long

range purpose is to inhibit intoxicated persons from driving upon the highways and thus

reduce the carnage and slaughter on the highways.”).



              In the present case, Mr. Hall contends that the investigating officers failed to

comply with statutory provisions relating to the implied consent form and that the automatic

revocation of Mr. Hall’s driver’s license for refusal to submit to the secondary breath test was

therefore not warranted. The hearing examiner and the circuit court agreed with Mr. Hall’s

contentions that the investigatory personnel failed to comply with statutory provisions by (1)

failing to demonstrate that the “arresting officer” provided the implied consent form to Mr.

Hall, and (2) presenting Mr. Hall with an alleged “choice” between a breath test and a blood

test. We examine these two issues regarding implied consent separately below.



     1. Information Provided by Officer Bailes Regarding Implied Consent Penalties


                                               9

              The hearing examiner found as follows:

              [A]lthough West Virginia Code § 17C-5-4 requires that a
              secondary chemical test be administered at the direction of the
              arresting law-enforcement officer, the testimony in the present
              case reveals that it was Officer J.A. Bailes, rather than the
              Investigating Officer, who directed the Petitioner [Mr. Hall] to
              submit to a secondary chemical test of his breath.

This Court has never held, however, that the statute’s use of the phrase “at the direction of”

precludes any delegation of authority from the arresting officer to another law enforcement

officer. In this case, Officer Harden testified that he waited for the wrecker at the scene of

the arrest while Mr. Hall was transported to the police station. Officer Bailes testified that

he read the implied consent form to Mr. Hall and provided Mr. Hall with a copy of the form.

Officer Bailes further testified that Mr. Hall told him at least twice that he did not want to

take the secondary breath test.



              The California Court of Appeal, in Lee v. Department of Motor Vehicles, 142

Cal.App.3d 275 (Cal. Ct. App. 1983), addressed and rejected a similar assertion that

delegation of authority was improper.5 Id. at 280-81. In that case, a driver accused of DUI

contended that “because the test was not going to be administered by the arresting officer

who had reasonable cause, appellant did not violate [the implied consent statute] even if he

did refuse to submit to a chemical test for intoxication.” Id. at 280-81 (emphasis supplied).


       5
       The implied consent statute applicable in Lee was nearly identical to the West
Virginia implied consent statute. See 142 Cal.App.3d at 281.

                                             10

The court disagreed with the driver’s statutory interpretation and explained “that the

language in the statute requiring the test to be administered ‘at the direction’ of an arresting

officer with reasonable cause means that the arresting officer need only order that the test be

given.” Id. at 281. “The statute does not say that the arresting officer must personally

administer the test or even that the test must be administered in the presence of the arresting

officer.” Id. (footnote omitted).



              Although Mr. Hall did not present policy arguments opposing the concept of

delegation, it is enlightening to recognize the multiple policy arguments presented and

rejected in Lee. The accused driver, for instance, argued that the implied consent “statute is

designed to protect the arrestee’s due process rights which may be violated if the

administration of the tests is not limited to the arresting officer.” Id. The court in Lee found

no factual or legal justification for such contention and specified that the implied consent

statute was “enacted to fulfill the need for a fair, efficient and accurate system of detection

and prevention of drunken driving.” Id. at 282 (citations omitted). The discussion in Lee

appropriately focused upon the underlying purposes of the implied consent law, noting that

while the “immediate purpose” is to produce the most reliable evidence of intoxication, the

“long range purpose is to deter intoxicated persons from driving on the highways.” Id. The

court in Lee concluded that nothing in the foundational principles of implied consent law

militates against the delegation at issue in that case. The court also noted that “[r]emedial


                                              11

statutes . . . must be liberally construed to effect their objects and suppress the mischief at

which they are directed.” Id. (quoting Bush v. Bright, 264 Cal.App.2d 788, 792 (Cal. Ct.

App. 1968)).



               The delegation at issue in the case at bar was completely consonant with the

statutory purposes of West Virginia’s implied consent law. This Court has consistently

recognized the need for multiple officers to work in concert in investigating incidents of

allegedly criminal behavior. See Comm’r of W. Va. Div. of Motor Vehicles v. Brewer, No.

13-0501, 2014 WL 1272540, at *1 (W. Va. Mar. 28, 2014) (memorandum decision) (holding

that investigating officer’s completion of DUI Information Sheet based mostly on

information learned from another officer at scene did not invalidate ultimate finding of DUI);

Dale v. McCormick, 231 W.Va. 628, 634, 749 S.E.2d 227, 233 (2013) (allowing multiple

officers to observe driver during twenty-minute observation period). We find Mr. Hall’s

arguments to the contrary unconvincing, and we hold that the language of West Virginia

Code § 17C-5-4(c) (2010), requiring a secondary blood or breath test to be administered “at

the direction of the arresting law-enforcement officer,” does not preclude the arresting officer

from directing or authorizing another qualified law enforcement officer to explain implied

consent and administer a chemical test for intoxication.6


       6
        In the statutory framework under inquiry in this case, the only relevant mention of the
presence of the arresting officer is contained in West Virginia Code § 17C-5-4(g), where the
arresting officer is required to be present during the administration of a secondary chemical

                                              12

                      2. Alleged “Choice” Provided by Officer Harden

               West Virginia Code § 17C-5-7(a) provides requirements regarding refusal to

submit to chemical testing and specifies that “after fifteen minutes following the warnings

the refusal is considered final.” Furthermore, “[t]he arresting officer after that period of time

expires has no further duty to provide the person with an opportunity to take the secondary

test.” Id.



               In this case, Officer Bailes testified that he read and provided a copy of the

implied consent form to Mr. Hall. In response to that information, Mr. Hall informed Officer

Bailes that he did not want to take the secondary breath test. Mr. Hall refused “[a]t least

twice,” according to Officer Bailes’ testimony. The officer explained: “I specifically asked

him twice, once he had a 15-minute period to change his mind.” The implied consent form

read and provided to Mr. Hall explained as follows:

               Pursuant to state law (Chapter17C, 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



test if the arresting officer lacks proper training and requests another officer to administer the
test. Those circumstances were nonexistent in the present case.

                                               13

              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.

Officer Bailes and Mr. Hall signed that document on February 3, 2011, at 3:52 a.m.



              It was only after the conclusion of that pivotal conversation that Officer Harden

returned to the police station, learned of Mr. Hall’s decision, and decided to approach Mr.

Hall one more time concerning his refusal to take the secondary breath test. While this Court

takes cognizance of Officer Harden’s laudable desire for thoroughness, his act of

approaching Mr. Hall yet again on the issue was unnecessary. As previously referenced,

Officer Harden testified as follows regarding his actions at that juncture:

                     By the time the wrecker came and had taken [Mr. Hall’s]
              vehicle and I had gotten back to our headquarters, I was
              informed that Mr. Hall didn’t want to take the breathalyzer, but
              wished to have blood drawn. So right before we left, I asked
              him again for the 15 minutes if he wanted to take it or have
              blood drawn. He would have rather had blood drawn.

Based upon these statements by Officer Harden, obviously made subsequent to Mr. Hall’s

refusal to submit to the secondary breath test, the hearing examiner and circuit court

concluded that Mr. Hall was in some manner given a choice of which test to take. However,

the evidence does not support the conclusion that Mr. Hall had been provided a “choice”

between the breath test and the blood test. The evidence clearly indicates that Officer Bailes

read and provided the implied consent form to Mr Hall; Mr. Hall signed that document; and

Mr. Hall twice refused the breath test and asked for a blood test. At that point, Mr. Hall’s

                                             14

refusal of the breath test was complete, and he had been made aware that the penalty for

refusing the breath test was license revocation. Thus, by the refusal, Mr. Hall had subjected

himself to the license revocation later imposed by the DMV. The events or conversations

occurring when Officer Harden returned to the station are immaterial; Mr. Hall’s refusal was

already complete.



               There is no conflict in the testimony regarding these events. As this Court

noted in Lilly v. Stump, 217 W.Va. 313, 617 S.E.2d 860 (2005), “[i]n fact, the only evidence

of record on this issue was Deputy Lilly’s testimony which clearly demonstrated that the

officer gave the Implied Consent form to the appellee. As there was no testimony in conflict

with the officer, we see no reason to contradict his testimony.” Id. at 319, 617 S.E.2d at 866.

The findings of the lower tribunals that such chronological scenario can be interpreted to

mean Mr. Hall was given a “choice,” was misled in some manner, or had any rational basis

for perceiving a “choice” between the breath test and the blood test are unfounded. Mr.

Hall’s refusal to submit to the secondary breath test is determinative of his revocation. This

Court consequently reverses the portion of the lower court’s finding regarding the revocation

for this refusal.



                           B. Absence of Results of Blood Test




                                              15

              West Virginia Code § 17C-5-9 (1983)7 provided as follows:

                      Any person lawfully arrested for driving a motor vehicle
              in this State while under the influence of alcohol, controlled
              substances or drugs shall have the right to demand that a sample
              or specimen of his blood, breath or urine be taken within two
              hours from and after the time of arrest, and that a chemical test
              thereof be made. The analysis disclosed by such chemical test
              shall be made available to such arrested person forthwith upon
              demand.

This Court addressed that statute in Moczek and unequivocally held that a driver’s license

will be revoked on the basis of the driver’s refusal to submit to a breath test, whether a blood

test is taken or not. 178 W. Va. at 554, 363 S.E.2d at 239. Specifically, this Court observed:

              It is clear that even though Mr. Moczek had a right to a blood
              test in addition to the secondary chemical test designated by the
              state police under W. Va. Code, 17C-5-4 [1983], in this case the
              breathalyzer, the fact that he refused to take the designated
              breathalyzer automatically subjected him to administrative
              suspension of his driver’s license.

Id.; see also Chapman v. W. Va. Dep’t of Motor Vehicles, 188 W. Va. 216, 423 S.E.2d 619

(1992) (holding license could be suspended for refusal to submit to breath test following

arrest for DUI, despite driver’s willingness to undergo blood test). This Court in Moczek

further explained:

              W. Va. Code, 17C-5-9 [1983] does not require that an
              alternative test be offered; it merely accords an additional right
              to individuals to have another test to supplement the designated
              secondary test if that designated secondary test is either a breath


       7
       West Virginia Code § 17C-5-9 (1983) applies in this case. The statute was amended
in 2013, but those amendments do not affect the substantive issues evaluated in this opinion.

                                              16

              or urine test. It is clear now that a person who refuses to take
              the designated breathalyzer or urine test will have his license
              revoked, even if he takes an alternative blood test that
              conclusively proves that he was not intoxicated.

Id. at 555, 363 S.E.2d at 240 (emphasis supplied).8



              Applying that logic to the present case, it is clear that Mr. Hall’s administrative

license revocation is properly premised upon his refusal of the breathalyzer test. As this

Court observed in Moczek, “the results of the blood test would have been irrelevant to the



       8
         As the Supreme Court of Utah aptly explained in Conrad v. Schwendiman, 680 P.2d
736 (Utah 1984), a statute permitting a driver to request a blood test “does not supersede or
negate” an implied consent statute. Id. at 739. “If the driver refuses to take the test requested
by the officer, his driver's license must be revoked.” Id. A blood test simply “provides the
defendant with additional means . . . to muster a defense to a charge of driving under the
influence.” Id.
        Moreover, we note that a court addressing only the administrative license revocation
based upon refusal to submit to the breathalyzer under the implied consent statute would not
be obligated to address the driver’s concerns about the absence of a requested blood test. As
the California Court of Appeal concisely noted in Webb v. Miller, 187 Cal.App.3d 619 (Cal.
Ct. App. 1986), those two issues are entirely separate. Id. at 629. While deprivation of a
blood test prevents the accused from obtaining evidence for his defense of the DUI claim,
it does not affect the issue of refusal to submit to the testing required by the police through
the implied consent law. Any contention regarding the absence of a blood test “is a red
herring” in a case dealing exclusively with the implied consent issue. Id. “The issue here is
not whether Webb was driving while under the influence of alcohol, but rather, his refusal
to submit to chemical testing. Consequently, even a test result favorable to Webb would
have no bearing on whether he violated [the implied consent law].” Id.
        In the instant case, this Court addresses both the implied consent and the blood test
components of this case only because the DMV revocation order dealt with the two
infractions separately and imposed individual penalties for each, revoking Mr. Hall’s regular
driver’s license for one year for the refusal and six months for the DUI, to run concurrently.
His commercial driver’s license was revoked for a combined one year.

                                               17

outcome of the narrow issue of whether Mr. Moczek’s license should be suspended because

appellant’s refusal to take the designated breathalyzer test immediately after his arrest made

the present case one of administrative revocation.” Id.



              The Court in Moczek was careful to emphasize, however, that Mr. Moczek’s

license was “suspended because he refused to take the breathalyzer test, and not because he

was driving while under the influence of alcohol.” Id. In that manner, Moczek differs from

the present case; here, the DMV identified two separate bases for revocation and specified

that Mr. Hall’s licenses were being revoked for one year for “refusing the secondary

chemical test” and six months for “driving under the influence.” By statute, those revocation

periods were ordered to run concurrently.



              Consequently, having already concluded that the revocation for “refusing the

secondary chemical test” was appropriate, this Court must also analyze the second basis for

the DMV’s order and determine whether the six-month revocation for “driving under the

influence” was appropriate in this situation. Although a blood sample was taken, a “chemical

test thereof,” as required by West Virginia Code § 17C-5-9, was never performed.

Moreover, the sample was retained under the control of the police department and was placed

in an evidence locker when Officer Harden returned to the police station on February 3,

2011. Officer Harden’s intention at that time was to have the blood sample tested by the


                                             18

West Virginia State Police Laboratory.9 When he testified during a June 2012 hearing,

however, Officer Harden explained:

              A few months ago I had talked to our evidence technician in
              [sic] whether or not we had gotten anything back from the state
              police lab in reference to the blood sample, and he said that
              during that time the West Virginia State Police was not
              accepting blood, so it was not submitted. We still have it in our
              department. No additional explanation for the failure to test the
              blood sample was provided.



              On appeal to this Court, the DMV contends that the circuit court and OAH

erred in finding that it was the investigating officer’s obligation to have the blood sample

tested. The DMV argues that Mr. Hall could have made an attempt to secure the blood

sample for testing. The DMV directs this Court’s attention to In re Burks, 206 W.Va. 429,

525 S.E.2d 310 (1999). In Burks, however, the essential requirements of the statute were

satisfied; the question was whether the failure of the officer to supply the results of the test

was a substantial denial of due process. Id. at 432, 525 S.E.2d at 313. The Court held as

follows in syllabus point two:

                     A person who is arrested for driving under the influence
              who requests and is entitled to a blood test, pursuant to W.Va.
              Code, 17C-5-9 [1983], must be given the opportunity, with the
              assistance and if necessary the direction of the arresting law
              enforcement entity, to have a blood test that insofar as possible


       9
        Officer Harden indicated on the West Virginia DUI Information Sheet that an
analysis of [Mr. Hall’s] blood would be performed by the West Virginia State Police
Laboratory.

                                              19

              meets the evidentiary standards of 17C-5-6 [1981].

That test having been performed in Burks, however, the officer did not have the obligation

to obtain and furnish the results. The Court explained at syllabus point three: “The

requirement that a driver arrested for DUI must be given a blood test on request does not

include a requirement that the arresting officer obtain and furnish the results of that requested

blood test.” The Court in Burks further explained that “[p]lacing such a requirement on the

arresting officer can only be fairly read into the statutory scheme, if the blood test is the

officer’s ‘designated’ test - and not a test that is requested by the driver.” Id. at 433, 525

S.E.2d at 314. “Of course, the arresting officer cannot pose an impediment to the driver’s

obtaining the results of and information about the test.” Id.10



              In State v. York, 175 W. Va. 740, 338 S.E.2d 219 (1985), this Court discussed

the evidentiary implications of a denial of a blood test and reasoned as follows:

              To deny this right would be to deny due process of law because
              such a denial would bar the accused from obtaining evidence
              necessary to his defense. . . . The defendant’s right to request
              and receive a blood test is an important procedural right that
              goes directly to a court’s truth-finding function.

Id. at 741, 338 S.E.2d at 221 (citations omitted and emphasis supplied); see also Koontz v.

State, 617 S.E.2d 207, 207-10 (Ga. 2005) (holding, in criminal context, that police officer

       10
        While the precise statutory standards vary by state, other jurisdictions have also
adhered to the central theme that an officer may not unreasonably impede the right to the
blood test requested by the driver. See, e.g., State v. Smerker, 136 P.3d 543 (Mont. 2006).


                                               20

failed to reasonably accommodate driver’s request for independent blood subsequent to

required breath test where blood drawn but not tested, with no further inquiry by police

officer); Cole v. State, 587 S.E.2d 314 (Ga. App. 2003) (holding that officer took no steps

to help overcome obstacle created by hospital’s inability to test blood sample); State v.

Button, 426 S.E.2d 194 (Ga. Ct. App. 1992) (finding officer’s innocent mistake in failure to

test blood sample not relevant); O'Dell v. State, 409 S.E.2d 54 (Ga. Ct. App. 1991) (holding

officer unjustifiably refused driver’s repeated requests to call other hospitals to have blood

sample tested).



              In the case sub judice, the investigative personnel complied with only one

portion of West Virginia Code § 17C-5-9. They transported Mr. Hall to Thomas Memorial

Hospital, and a blood sample was taken. The subsequent statutory requirement, however,

was not satisfied because a blood test on that blood sample was never conducted. The DMV

contends that the burden of proceeding from blood sample to blood test is upon Mr. Hall

because he requested the blood test. On the contrary, Mr. Hall argues that the statute creates

a due process right to both demand and receive a blood test and that the act of retaining the

blood sample in an evidence locker rather than ascertaining that a blood test be performed

on the blood sample constitutes denial of due process.



              Although the circumstances in Burks were similar to the present case, the


                                             21

statutory right of the driver in Burks to demand and receive a blood test was satisfied. This

Court’s holding in Burks was simply that the police officer did not have the obligation to

“obtain the results” of the blood test. 206 W.Va. at 433, 525 S.E.2d at 314. In other words,

those results of the completed blood test were available to the driver, and the failure of the

driver to obtain those results was not attributable to police inaction. The present case,

however, involves somewhat more culpable conduct by investigative personnel. The police

actually retained dominion and control over the blood sample, in evidence locker number five

of the South Charleston Police Department. Although they may have intended to cause that

sample to be tested by the West Virginia State Police Laboratory, no such test was ever

conducted. This Court consequently affirms the conclusion of the hearing examiner and

circuit court that Mr. Hall was denied the statutory and due process rights, under West

Virginia Code § 17C-5-9, to have his blood tested independently. We therefore affirm the

portion of the circuit court order that rescinds the DMV’s six-month license revocation for

DUI.


                                      IV. Conclusion

              Based upon the foregoing, this Court finds that Mr. Hall’s license revocations

for refusal to submit to the secondary breath test were proper, but his license revocations for

DUI were erroneous. Thus, this Court reverses the portion of the circuit court’s order

rescinding the one-year license revocation for refusal to submit to the secondary breath test

and affirms the portion of such order rescinding the six-month license revocation for DUI.

                                              22

We remand to the circuit court for entry of an order reinstating the portions of the license

revocation order and commercial driver’s license disqualification order pertaining to the

implied consent violation.



                                          Affirmed in part, reversed in part, and remanded.




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