                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Patricia S. Reed, Commissioner, West                                                FILED
Virginia Department of Motor Vehicles,                                           May 15, 2015
Respondent Below, Petitioner                                                   RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
vs) No. 14-0346 (Kanawha County 13-AA-61)

Ronald W. Craig,

Petitioner Below, Respondent



                               MEMORANDUM DECISION
        Petitioner Patricia S. Reed1, Commissioner, West Virginia Department of Motor
Vehicles, (“DMV”), by counsel, Janet E. James, appeals the order of the Circuit Court of
Kanawha County, entered on March 14, 2014, affirming the April 16, 2013, final order of the
Office of Administrative Hearings (“OAH”). The OAH reversed the revocation of petitioner’s
license to drive upon finding that petitioner failed to establish that respondent drove a motor
vehicle while under the influence of controlled substances, or that respondent refused to submit
to a secondary chemical test of the breath. Respondent, Ronald W. Craig, by counsel David R.
Pence and Carter Zerbe, filed a response in support of the circuit court’s order. Petitioner filed a
reply.

        This Court has considered the parties’ briefs and the record on appeal. Upon
consideration of the standards of review, this Court finds no substantial question of law, and
finds that the circuit court was clearly wrong in its decision. The record establishes that petitioner
did not receive an administrative hearing on his appeal of the revocation of his driver’s license.
For this reason, a memorandum decision reversing the circuit court’s order is appropriate under
Rule 21 of the Rules of Appellate Procedure.

        On September 3, 2010, respondent was stopped by Kanawha County Sheriff Deputy J.A.
Ferrell after Deputy Ferrell observed respondent swerving, speeding, and crossing the double
yellow line on his motorcycle. Deputy Ferrell reported, in a DUI Information Sheet, that
respondent had bloodshot eyes, slurred speech, an odor of alcohol on his breath, was unsteady
when standing, and staggered while dismounting his motorcycle.2 Deputy Ferrell administered

       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
        In the DUI Information Sheet, Deputy Ferrell noted that respondent admitted to
“drinking 6 or 7 beers.”
                                                  1

field sobriety tests to respondent, including the horizontal gaze nystagmus, walk-and-turn, and
one-leg stand tests. Respondent reportedly failed each of the field sobriety tests. Based on these
findings, Deputy Ferrell, placed respondent under arrest for driving under the influence of
alcohol, and transported him to the local police department. At the police department, respondent
was read the Implied Consent Statement and submitted to an Intoximeter test. The test result
showed an initial reference standard blood alcohol content of .086. Respondent refused to submit
to the follow-up Intoximeter tests. By order entered September 17, 2010, respondent’s driver’s
license was revoked for driving under the influence and/or respondent’s refusal to submit to the
designated secondary chemical test.

       Respondent (then appearing pro se) timely appealed petitioner’s revocation order and an
administrative hearing was scheduled to be conducted before the OAH. In completing the
Hearing Request Form to formally request an administrative hearing, respondent checked the
box on the form titled, “I request the investigating officer’s attendance. By law, the DMV will
subpoena the officer.” On November 2, 2011, respondent (then represented by counsel) filed an
additional request for hearing before the OAH. Together with the additional request, respondent
submitted a letter specifically expressing respondent’s intent to challenge the contents of the DUI
Information Sheet, the field sobriety tests, and the implied consent procedures. Consequently,
respondent contends it was necessary for the investigating officer to be subpoenaed at all
scheduled hearings.

        The administrative hearing was initially scheduled for January 28, 2011, but was
continued at respondent’s request. The hearing was reset for November 1, 2011, and a subpoena
was issued to Deputy Ferrell requiring his appearance the rescheduled hearing. Deputy Ferrell
failed to appear for the November 1, 2011, hearing, which was ultimately continued due to
respondent’s family “medical emergency.”

        The hearing was rescheduled for April 4, 2012, and Deputy Ferrell was again served with
a subpoena. Without explanation, Deputy Ferrell failed to appear at the April 4, 2012, hearing.
The April 4, 2012, hearing was convened, but the hearing examiner granted petitioner’s request
for a continuance of the hearing because the hearing examiner “could not determine if the
[i]nvestigating [o]fficer was put on notice of the hearing . . . .”3 At the hearing, the hearing
examiner noted that “[a]ll documents contained in the Office of Administrative Hearings’ file
have been marked as Exhibit Nos. 1 through 16 for purposes of identification only.”

       The hearing was rescheduled again for August 9, 2012, and ultimately rescheduled to
January 23, 2013. Deputy Ferrell was subpoenaed for the January 23, 2013, hearing, but again




       3
        At a later hearing, petitioner’s counsel represented that Deputy Ferrell did not attend the
April 4, 2012, hearing because he had relocated to another county to work as a deputy sheriff,
and had not received notice of the hearing.


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failed to appear.4 The hearing convened despite Deputy Ferrell’s absence and petitioner moved
to continue and reschedule the hearing. Respondent moved for a dismissal of the administrative
action based upon the officer’s failure to appear. Neither party requested that the hearing proceed
without Deputy Ferrell and no testimony or other evidence was offered. At the conclusion of the
January 23, 2013, hearing and in consideration of petitioner’s motion to continue, the hearing
examiner directed petitioner’s counsel to submit “something in writing,” within five days to
advise of the reason for Deputy Ferrell’s absence. The hearing examiner then further advised the
parties that

       “. . . this is an old case and the next time it is scheduled it will go forward unless
       something happens where it can’t be avoided. Someone is in the hospital or, you
       know, something serious like that, but the next hearing that is scheduled, we’re
       going to go forward if the officer is here or not or the petitioner is here or not,
       we’re going to go forward.”

        The hearing examiner then advised the parties that “this hearing will be in recess.” On
April 16, 2013, the OAH entered its Decision of Hearing Examiner and Final Order of Chief
Hearing Examiner reversing the revocation of respondent’s license to drive, and finding that
petitioner did not prove, by a preponderance of evidence, that respondent drove a motor vehicle
in West Virginia while under the influence of alcohol, or that respondent refused to submit to the
designated secondary chemical test. In that order, the hearing examiner ruled that petitioner’s
counsel had been given five days to file a motion for an emergency continuance following the
January 23, 2013, hearing but did not do so, and further that petitioner’s counsel did not ask to
proceed with the presentation of evidence at the January 23, 2013, hearing, despite Deputy
Ferrell’s absence. The hearing examiner noted that while the “DUI Information Sheet” was
“submitted to the file” prior to the January 23, 2013, hearing, there was no proper foundation for
its admission and, accordingly, it was not considered by the hearing examiner.

        Petitioner filed a motion for reconsideration of the OAH’s April 16, 2013, order
challenging the OAH’s refusal to consider the evidence “already in the [OAH] file” at the time of
the January 23, 2013, hearing. The OAH denied petitioner’s motion for reconsideration. By final
order entered on March 14, 2014, the circuit court affirmed the decision of the hearing examiner.
Petitioner now appeals the circuit court’s March 14, 2014, final order.

        The standard of review in appeals dealing with driver’s license revocation proceedings is
set forth in Syllabus Point 1 Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996):

               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.

       4
        At the hearing, petitioner’s counsel acknowledged that “Deputy Ferrell was noticed of
today’s hearing and subpoenaed to be present to testify. I do not have an explanation for his
absence this morning . . . .”
                                                 3

       In Syllabus Point 2 of Shepherdstown Volunteer Fire Dep’t v. State ex rel. State of W.Va.
Human Rights Comm’n, 172 W.Va. 627, 309 S.E.2d 342 (1983), this Court outlined statutory
standards contained in West Virginia Code § 29A-5-4:

               Upon 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.

        On appeal, petitioner asserts two assignments of error. First, petitioner argues that the
circuit court erred in affirming the OAH’s reversal of the revocation of respondent’s license to
drive because the OAH failed to consider the documents contained within its file at the time of
the January 23, 2013, hearing. Second, petitioner asserts that the circuit court erred in placing
weight on the investigating officer’s failure to appear at administrative hearings.

       We begin our review of this case by examining the procedural framework for
administrative hearings before the OAH. West Virginia Code § 17C-5A-2 provides, in part, that

               [w]ritten objections to an order of revocation or suspension [of a license to
       drive] . . . . shall be filed with the Office of Administrative Hearings. Upon the
       receipt of an objection, the Office of Administrative Hearings shall notify the
       Commissioner of the Division of Motor Vehicles, who shall stay the imposition of
       the period of revocation or suspension and afford the person an opportunity to be
       heard by the Office of Administrative Hearings. The written objection must be
       filed with Office of Administrative Hearings in person, by registered or certified
       mail, return receipt requested, or by facsimile transmission or electronic mail
       within thirty calendar days after receipt of a copy of the order of revocation or
       suspension or no hearing will be granted . . . . The hearing shall be before a
       hearing examiner employed by the Office of Administrative Hearings who shall
       rule on evidentiary issues. Upon consideration of the designated record, the
       hearing examiner shall, based on the determination of the facts of the case and
       applicable law, render a decision affirming, reversing or modifying the action
       protested. The decision shall contain findings of fact and conclusions of law and
       shall be provided to all parties. . . .

      In Crouch v. W.Va. Div. of Motor Vehicles, 219 W.Va. 70, 631 S.E.2d 628 (2006) and
Dale v. Odum, 233 W.Va. 601, 609, 760 S.E.2d 415, 423 (2014), this Court ruled that
documents (such as statements of arresting officers) that are not typically admissible during

                                                 4

normal court proceedings are admissible in administrative hearings, and that there is no
foundational requirement for the admission of these documents. We concluded in Crouch that

       [w]ithout a doubt, the Legislature enacted W.Va. Code § 29A-5-2(b) with the
       intent that it would operate to place into evidence in an administrative hearing
       “[a]ll evidence, including papers, records, agency staff memoranda and
       documents in the possession of the agency, of which it desires to avail itself . . . .”
       W.Va. Code § 29A-5-2(b). Indeed admission of the type of materials identified in
       the statute is mandatory, as evidenced by the use of the language “shall be offered
       and made a part of the record in the case . . . .”

219 W.Va. at 76, 631 S.E.2d at 634.

        In the case-at-bar, petitioner argues that the OAH failed to acknowledge or apparently
consider any of the documents contained within its file at the time of the January 20, 2013,
hearing. Under the limited circumstances of this case, we agree. The record in this matter
indicates that documents (including the DUI Information Sheet) had been admitted during the
proceeding held in this matter before the OAH on April 4, 2012.5 Accordingly, we reverse the
circuit court’s March 14, 2014, order setting aside the Commissioner’s revocation order, and
remand this matter to the OAH with the direction to conduct an administrative hearing pursuant
to West Virginia Code § 17C-5A-2.6




       5
        The “index of documents” signed by the chief hearing examiner when the record of this
matter was transferred to the circuit court reflects that the file includes “Exhibits 1-23 which
were admitted during the April 4, 2012, proceedings before the [OAH].”
       6
        We note the importance of the OAH’s role as the fact finder. As this Court explained in
Modi v. W.Va. Bd. of Med., 195 W.Va. 230, 239, 465 S.E.2d 230, 239 (1995),

       findings of fact made by an administrative agency will not be disturbed on appeal
       unless such findings are contrary to the evidence or based on a mistake of law. In
       other words, the findings must be clearly wrong to warrant judicial interference.
       Accordingly, absent a mistake of law, findings of fact by an administrative agency
       supported by substantial evidence should not be disturbed on appeal.

(Citations omitted). We further note, as we recognized in Crouch, that even though a document
is deemed admissible at an administrative hearing, under West Virginia Code § 29A-5-2(b), its
contents may still be challenged during the hearing. 219 W.Va. at 76 n.12, 631 S.E.2d at 634
n.12. In conducting the administrative hearing, as required pursuant to West Virginia Code §
17C-5A-2, and providing respondent with an opportunity to present rebuttal evidence, the OAH
will fulfill its important role as fact finder and determine the credibility of all of the evidence
relevant to the revocation of respondent’s license to drive, both documentary and testimonial.



                                                 5

                                         Reversed and remanded with directions.

ISSUED: May 15, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II




                                    6

