        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                September 2016 Term
                                  _______________                      FILED
                                    No. 15-1044                    October 26, 2016
                                                                     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


                                         v.

                              JOSHUA D. BECKETT,

                                  Respondent


      ____________________________________________________________

                Appeal from the Circuit Court of Monroe County

                    The Honorable Robert A. Irons, Judge

                             Civil Action 15-C-25


                      REVERSED AND REMANDED

      ____________________________________________________________

                             Submitted: October 12, 2016

                               Filed: October 26, 2016


Patrick Morrisey                              Jeffry A. Pritt, Esq.
Attorney General                              Pritt Law Firm, PLLC
Elaine L. Skorich                             Union, West Virginia
Assistant Attorney General                    Counsel for the Respondent
Charleston, West Virginia
Counsel for the Petitioner




CHIEF JUSTICE KETCHUM delivered the Opinion of the Court.

JUSTICE BENJAMIN dissents, and reserves the right to file a separate opinion.
                              SYLLABUS BY THE COURT

              1.      “Where the language of a statute is free from ambiguity, its plain

meaning is to be accepted and applied without resort to interpretation.” Syllabus Point 2,

Crockett v. Andrews, 153 W.Va. 714, 172 S.E.2d 384 (1970).

              2.      The Legislature’s definition of the phrase “in this State” in W.Va.

Code § 17C-5-2a(a) [1983] extends the reach of our driving-under-the-influence laws to

any individual driving a vehicle within the physical boundaries of West Virginia, even if

the vehicle is driven only upon private property not open to the general public.

              3.      State v. Ball, 164 W.Va. 588, 264 S.E.2d 844 (1980) is overruled to

the extent that it conflicts with this opinion.




                                                  i
Chief Justice Ketchum:


              In this appeal from the Circuit Court of Monroe County, we are asked to

consider whether a person may lose his/her driver’s license because, while under the

influence of alcohol, he/she operated a vehicle1 solely upon private land. West Virginia

Code § 17C-5-2a(a) [1983], at its core, prohibits intoxicated driving “anywhere within

the physical boundaries of this State.”      Through the adoption of this statute, the

Legislature extended West Virginia’s driving-under-the-influence statutes to proscribe

driving while intoxicated upon private property. Hence, we hold that an individual may

lose his/her driver’s license if they are found driving a vehicle anywhere within the

physical boundaries of West Virginia while under the influence of alcohol (and/or drugs),

even if the vehicle is driven only upon private property not open to the general public.


                                   I.

                  FACTUAL AND PROCEDURAL BACKGROUND


              The essential facts in this case are undisputed.      Around 1:00 a.m. on

February 4, 2012, respondent Joshua Beckett was driving an unlicensed all-terrain

vehicle (“ATV”) on family-owned farm land, in a field that was not open to the public, in

Monroe County, West Virginia. Mr. Beckett wrecked the ATV and was injured. A

              1
                “‘Vehicle’ means every device in, upon or by which any person or
property is or may be transported or drawn upon a highway, except devices moved by
human power or used exclusively upon stationary rails or tracks or wheelchairs.” W.Va.
Code § 17C-1-2 [2002]. Additionally, a person “who drives a motor vehicle in this
State” impliedly consents to the license revocation procedures outlined in W.Va. Code §§
17C-5A-1 to -4. W.Va. Code § 17C-5A-1(a) [2008].


                                             1

companion called 911 and then transported Mr. Beckett to a highway to be loaded into an

ambulance. An emergency medical technician in the ambulance noted the smell of

alcohol on Mr. Beckett, and later testified that Mr. Beckett said he had consumed alcohol

before he wrecked.

             At the hospital, tests allegedly showed Mr. Beckett’s blood alcohol content

was 0.17%.2 A sheriff’s deputy thereafter charged Mr. Beckett with the criminal offense

of driving while under the influence of alcohol (“DUI”) with a blood alcohol content

greater than 0.15% (also called aggravated DUI).3 That charge was ultimately dismissed

by a magistrate.

             While the criminal charge was pending, the sheriff’s deputy notified the

petitioner, the Commissioner of the West Virginia Division of Motor Vehicles

             2
               Mr. Beckett argues that these blood test results are inadmissible and
cannot be used against him. We leave resolution of that argument to the circuit court on
remand.
             3
                 The law then in effect, W.Va. Code § 17C-5-2(e) [2010], provided in full:

                     (e) Any person who drives a vehicle in this state while
             he or she has an alcohol concentration in his or her blood of
             fifteen hundredths of one percent or more, by weight, is guilty
             of a misdemeanor and, upon conviction thereof, shall be
             confined in jail for not less than two days nor more than six
             months, which jail term is to include actual confinement of
             not less than twenty-four hours, and shall be fined not less
             than two hundred dollars nor more than one thousand dollars.
             A person sentenced pursuant to this subdivision shall receive
             credit for any period of actual confinement he or she served
             upon arrest for the subject offense.

W.Va. Code § 17C-5-2 was modified in 2015 and 2016, and paragraph (e) was
substantially amended. However, none of those changes affect the current case.

                                             2

(“Commissioner”), that Mr. Beckett had been driving a motor vehicle in West Virginia

while under the influence of alcohol. Effective May 9, 2012, the Commissioner entered

an order revoking Mr. Beckett’s privilege to drive for 45 days. Mr. Beckett appealed and

the revocation was stayed.

              A hearing was conducted by the Office of Administrative Hearings. Mr.

Beckett argued to the administrative law judge that his license could not be revoked

because he was driving the unlicensed ATV only upon private, family-owned land, and

there was no evidence he was driving on a public street or highway. The administrative

law judge rejected his argument and upheld the Commissioner’s revocation order.

              Mr. Beckett then appealed to the circuit court and made the same argument.

In an order entered September 30, 2015, the circuit court reversed the decision from the

Office of Administrative Hearings.       The circuit court concluded that because Mr.

Beckett’s “actions did not occur on land open to public use,” the Commissioner had no

jurisdiction to revoke Mr. Beckett’s driving privileges.

              The Commissioner now appeals the circuit court’s September 30, 2015,

order.



                                       II.

                               STANDARD OF REVIEW


              “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


                                             3

accorded deference unless the reviewing court believes the findings to be clearly

wrong.”4



                                            III.

                                         ANALYSIS


              The Commissioner may administratively revoke a person’s license to drive

if the Commissioner determines that the person violated a criminal DUI statute.5 The

statute under which Mr. Beckett was charged, W.Va. Code § 17C-5-2(e) [2010],

criminalized being a “person who drives a vehicle in this state” while being under the

influence (emphasis added). The parties’ arguments center upon what it means to drive a

vehicle in this State.       The question presented by the parties is this: does the

Commissioner have the authority to revoke the license of a person who drives a vehicle

under the influence anywhere within the physical boundaries of this State? Or is the

Commissioner’s administrative jurisdiction limited to DUI offenses that occur only on

public streets, public highways, and those private thoroughfares open to public use?

              West Virginia Code § 17C-5-2a(a) [1983] provides the following definition

of the phrase “in this State,” when it is used in a DUI statute:

              For purposes of this article [pertaining to criminal DUI] and
              article five-A [pertaining to administrative license revocation
              for DUI] of this chapter, the phrase “in this State” shall mean
              anywhere within the physical boundaries of this State,

              4
                  Syl. pt. 1, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996).
              5
                  See W.Va. Code § 17C-5A-1(c) [2008].


                                              4

              including, but not limited to, publicly maintained streets and
              highways, and subdivision streets or other areas not publicly
              maintained but nonetheless open to the use of the public for
              purposes of vehicular travel.

(Emphasis added).

              Mr. Beckett argues that the circuit court correctly found that any

interpretation of “in this State” within W.Va. Code § 17C-5-2a(a) must be limited by this

Court’s 1980 holding in State v. Ball.6 In Ball, the Court found that a defendant could not

be charged for driving while intoxicated on a private parking lot, because the law then in

effect limited the application of the DUI statutes “exclusively to the operation of vehicles

upon streets and highways[.]”7 The circuit court was persuaded by our statement in Ball

that “if chapter 17C [containing our DUI law] is to apply elsewhere than upon streets and

highways a different place must be specifically set forth” by the Legislature.8 The circuit

court applied this language from Ball interpreting the DUI laws from the 1970s to

conclude the Commissioner has no jurisdiction to apply our DUI laws to an intoxicated

defendant driving on private farm land.

              The Commissioner points out that in 1981, subsequent to Ball, the

Legislature amended the DUI statutes, adopted W.Va. Code § 17C-5-2a(a) to give an

expanded meaning to the phrase “in this State,” and effectively overruled Ball. The

              6
                  State v. Ball, 164 W.Va. 588, 594, 264 S.E.2d 844, 847 (1980).
              7
              The pertinent statute, W.Va. Code § 17C-2-1, had been adopted in 1972.
The defendant was arrested in 1976. State v. Ball, 164 W.Va. at 593, 264 S.E.2d at 847.
              8
                  164 W.Va. at 594, 264 S.E.2d at 847.


                                              5

Commissioner contends that the plain meaning of this statute, which has not been

amended since 1983, is that a person cannot drive anywhere within the physical

boundaries of this State while under the influence. We agree with the Commissioner that

the statute is unambiguous.

              In deciding the meaning of a statutory provision, “[w]e look first to the

statute’s language. If the text, given its plain meaning, answers the interpretive question,

the language must prevail and further inquiry is foreclosed.”9 “Where the language of a

statute is free from ambiguity, its plain meaning is to be accepted and applied without

resort to interpretation.”10 “A statute is open to construction only where the language

used requires interpretation because of ambiguity which renders it susceptible of two or




              9
                  Appalachian Power Co. v. State Tax Dep’t, 195 W.Va. 573, 587, 466
S.E.2d 424, 438 (1995). See also Syl. pts. 1 and 2, State v. Elder, 152 W.Va. 571, 165
S.E.2d 108 (1968) (“1. Courts always endeavor to give effect to the legislative intent, but
a statute that is clear and unambiguous will be applied and not construed. 2. Where the
language of a statute is clear and without ambiguity the plain meaning is to be accepted
without resorting to the rules of interpretation.”); Syl. pt. 5, State v. Gen. Daniel Morgan
Post No. 548, Veterans of Foreign Wars, 144 W.Va. 137, 107 S.E.2d 353 (1959) (“When
a statute is clear and unambiguous and the legislative intent is plain, the statute should not
be interpreted by the courts, and in such case it is the duty of the courts not to construe
but to apply the statute.”); Syl. pt. 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488
(1951) (“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.”).
              10
                   Syl. pt. 2, Crockett v. Andrews, 153 W.Va. 714, 172 S.E.2d 384 (1970).


                                              6

more constructions or of such doubtful or obscure meaning that reasonable minds might

be uncertain or disagree as to its meaning.”11

              W.Va. Code § 17C-5-2a(a) is clear and unambiguous.               Through its

definition of the phrase “in this State,” the Legislature made the act of driving while

intoxicated a revocable offense “anywhere within the physical boundaries of this State.”

The Legislature chose to structure our DUI statutes to regulate the condition of the driver,

not the locale in which the driving is taking place. Thus, the Legislature expressed its

plain intent to prohibit an intoxicated person from driving a vehicle anywhere in West

Virginia, whether on public roads or across private land.

              Mr. Beckett cites a case from the State of Washington, involving DUI laws

similar to West Virginia’s, where the court concluded that it was an unreasonable

extension of the legislature’s police power to prohibit intoxicated persons from driving on

private land.12 He argues that the same reasoning applies here: while drunk drivers are

generally a menace to society whose conduct should be regulated, this Court should read

the statute to say that a driver on private land, who poses no danger to the general public,

is exempt from regulation.

              Our research, however, reveals court cases from nearly two dozen

jurisdictions that have reached the exact opposite conclusion: if state law criminalizes the


              11
                Sizemore v. State Farm Gen. Ins. Co., 202 W.Va. 591, 596, 505 S.E.2d
654, 659 (1998) (internal quotations and citation omitted).
              12
                   State v. Day, 638 P.2d 546, 548 (1981).


                                              7

operation of a motor vehicle while intoxicated, and the law contains no geographic

constraint, then the courts will not read into the statute a requirement that the vehicle be

operated exclusively on a public highway.13 These courts have generally concluded that


              13
                 See, e.g., Madden v. State, 555 S.E.2d 832, 834 (Ga. App. 2001) (Statute
making it unlawful to “drive or be in actual physical control of any moving vehicle”
while intoxicated “draws no distinction between driving on public roads versus private
thoroughfares.”); State v. Allen, 431 S.E.2d 563, 564 (S.C. 1993) (Statute making it
“unlawful for any person under the influence of intoxicating liquor ‘to drive any vehicle
within this State’ . . . by its terms is not limited to public highways but applies anywhere
within our State boundaries.”); Sanders v. State, 846 S.W.2d 651 (Ark. 1993) (statute
making it “unlawful . . . for any person who is intoxicated to operate or be in actual
physical control of a motor vehicle” applied when driving vehicle into a ditch on private,
company road); People v. Malvitz, 14 Cal. Rptr. 2d 698, 701 (Cal. App. 1992) (DUI
statute applicable “to vehicles upon the highways and elsewhere throughout the State”
prohibits “persons from driving anywhere in California” while intoxicated, including
gated storage area); State v. Watson, 787 P.2d 691, 692 (Haw. 1990) (Nothing in DUI
statute “requires that the operation of a vehicle while under the influence of intoxicating
liquor be done on a public highway.”); Chilcutt v. State, 544 N.E.2d 856, 858–59 (Ind.
Ct. App. 1989) (“the statute prohibiting operating a vehicle while intoxicated applied to
not only operation of a vehicle while intoxicated upon a public highway, but also
prohibits operation of a vehicle while intoxicated on private property.” Defendant was
found near overturned pickup truck on private property in rural area.); Allen v. Girard,
745 P.2d 192, 194 (Ariz. Ct. App. 1987) (statute making it “unlawful . . . for any person
who is under the influence of intoxicating liquor to drive or be in actual physical control
of any vehicle within this state” applied when driving vehicle in a private subdivision);
State v. MacDonald, 527 A.2d 758, 759 (Me. 1987) (Statute regulating person who
“operates or attempts to operate a motor vehicle” while intoxicated “is plainly applicable
to private as well as public ways.”); Zink v. State, 448 So. 2d 1196, 1197 (Fla. Dist. Ct.
App. 1984) (“The phrase ‘within this state’ is not ambiguous and very lucidly indicates
the legislature’s intent to encompass all lands in the state.” Intoxicated defendant was
“spinning donuts” on a private construction site.); Dayhoff v. State, Motor Vehicle Div.,
595 P.2d 1051, 1053 (Colo.App. 1979) (statute criminalizing DUI “upon streets and
highways and elsewhere throughout the state” interpreted to mean “the substantive
offenses of driving under the influence and driving while impaired apply regardless of
where the ‘driving’ occurs,” including a private parking lot and a one-vehicle accident on
private property); People v. Guynn, 33 Ill. App. 3d 736, 739, 338 N.E.2d 239, 241 (1975)
(in DUI statute, “the words ‘elsewhere throughout the State’ encompass all areas of the
State, public or private.”); State v. Layssard, 310 So. 2d 107, 110 (La. 1975) (“The statute
                                                                              (continued . . .)
                                              8

the phrase “within this state” is not ambiguous and indicates the legislature’s intent to

prohibit operation of a vehicle while intoxicated anywhere within the boundaries of the

state, whether upon public or private land. Courts in all of our neighboring states have

reached the same conclusion.14



(R.S. 14:98) does not limit the prohibition of drunk driving to highways, and evidence of
driving while intoxicated, even in the neighbor’s yard, would constitute some evidence of
the offense.”); State v. Bruce, 231 A.2d 107, 109 (Vt. 1967) (DUI statute “does not
provide that the offense here involved must have been committed on an established, laid
out, or public highway.”); Farley v. State, 170 So. 2d 625, 627 (Miss. 1965) (“[N]o
vehicle, which also included a motor vehicle, can be lawfully driven within this state in
any place, be it public or private, if the driver is under the influence of intoxicating
liquor, or the other drugs, etc., condemned by the statute. These prohibitions are directed
toward the condition of the operator.”); State v. Piette, 16 Conn. Supp. 357, 357 (Super.
Ct. 1949) (statute providing “No person shall operate a motor vehicle while under the
influence of intoxicating liquor or of any drug” applies to operation of vehicle on private
property); State v. Weston, 202 S.W.2d 50, 53 (Mo. 1947) (DUI statute “does not require
that the motor vehicle must have been operated upon a public highway.”); State v.
Dowling, 216 N.W. 271 (Iowa 1927) (Statute applied to “Whoever while in an
intoxicated condition operates a motor vehicle.” “Nowhere in said legislation is there any
indication that the offense contains the prerequisite of commission upon a public road or
street[.]”). See also, Damian Edward Okasinski, “Applicability, to operation of motor
vehicle on private property, of legislation making drunken driving a criminal offense,” 52
A.L.R.5th 655 (1997).
              14
                  See, e.g., Gray v. Com., 477 S.E.2d 301, 302 (Va. App. 1996) (statute
making it “unlawful for any person to drive or operate any motor vehicle” under the
influence applied to driving vehicle in private parking lot); Lynch v. Com., 902 S.W.2d
813, 814 (Ky. 1995) (“The legislature, by effectuating a change in the language from
upon a highway to anywhere in this state, explicitly intended to extend the prohibition
against driving while intoxicated beyond the public highways so as to include the entire
state.”); Locklear v. State, 614 A.2d 1338, 1341 (Md.App. 1992) (the provisions of DUI
statute “apply whether one is driving on or off a highway”); State v. Frank, 442 N.E.2d
469, 470 (Ohio App. 1981) (Statute saying no intoxicated person “shall operate any
vehicle . . . within this state” applies to the operation of a vehicle on private property as
well as public streets and highways); Commonwealth v. Campbell, 28 Pa. D. & C. 260,
266 (1936) (“Public safety is not restricted to public highways. There is no place in this
Commonwealth, and there should be none, where any of the people may be denied the
                                                                              (continued . . .)
                                              9

              We conclude that the Legislature’s definition of the phrase “in this State” in

W.Va. Code § 17C-5-2a(a) [1983] extends the reach of our DUI laws to any individual

driving a vehicle within the physical boundaries of West Virginia, even if the vehicle is

driven only upon private property not open to the general public. Furthermore, State v.

Ball15 is overruled to the extent that it conflicts with this opinion.



                                           IV.

                                       CONCLUSION


              The circuit court in this case determined that, because of this Court’s ruling

in Ball, Mr. Beckett’s operation of an ATV on private family-owned land could not be

regulated by the Commissioner under W.Va. Code § 17C-5-2a(a). This conclusion was

plainly a wrong interpretation of our DUI statutes and must be reversed.

              The circuit court’s order of September 30, 2015, is reversed, and the case is

remanded for further proceedings.

                                                                         Reversed and remanded.




protection of its laws regarding safety to life and limb. Public safety obliterates all
private boundaries and transcends all private interests.”).
              15
                   State v. Ball, 164 W.Va. 588, 264 S.E.2d 844 (1980).


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