773 S.E.2d 666
W. Va.2015Background
- On Feb. 3, 2011 Dustin Hall was stopped, exhibited signs of intoxication, and was arrested for DUI.
- At the station Hall twice refused the designated secondary breath test after being read the implied consent form; he asked for a blood test instead.
- Officers transported Hall to a hospital; blood was drawn and returned to the police evidence locker but was never submitted to the state lab for analysis.
- DMV revoked Hall’s regular license (one year for refusal to submit to the secondary test; six months for DUI) and disqualified his commercial license.
- OAH rescinded both revocations (finding delegation and that Hall was denied an independent blood test); the circuit court affirmed.
- The West Virginia Supreme Court affirmed in part and reversed in part: it upheld the revocation for refusal to take the designated breath test, and it vacated the DUI-based revocation because Hall was denied the statutory/due-process right to have his requested blood sample tested.
Issues
| Issue | Hall's Argument | DMV's Argument | Held |
|---|---|---|---|
| Whether the implied-consent test must be administered "at the direction of" the arresting officer, i.e., whether delegation to another officer invalidates refusal-based revocation | The arresting officer personally must direct/administer the secondary test; delegation invalidates the implied-consent process | The statute allows the arresting officer to direct/authorize another qualified officer to explain and administer the test | Delegation is permissible; revocation for refusal stands |
| Whether Hall was misled or given a choice between breath and blood such that his refusal to take the designated breath test was not a final refusal | Hall was led to believe he had a choice and thus did not validly refuse the designated breath test | Hall twice refused the breath test after being warned; any later remarks are immaterial because the refusal was already final | The refusal was final before later conversation; revocation for refusal valid |
| Whether retaining the drawn blood and failing to have it tested denied Hall his statutory and due-process right to an independent blood test under WV Code § 17C-5-9 | Police retained and failed to submit the sample for testing, thereby denying Hall the right to an independent test and evidence for his defense | DMV argued the burden to obtain test results rests with Hall (citing limits recognized in prior cases) | Holding: because police retained control of the untested sample and did not cause it to be tested, Hall was denied his statutory/due-process right; DUI-based revocation vacated |
| Whether the absence of a blood-test result undermines the administrative revocation for DUI when the driver refused the designated breath test | Hall urged both revocations be rescinded due to process violations and lack of testing | DMV maintained refusal-based revocation is independent of blood-test availability; blood results would not negate statutory consequence for refusal | Court: refusal-based revocation is independent and valid; however, DUI revocation (separate statutory basis) is erroneous where statutory right to an independent blood test was denied |
Key Cases Cited
- Muscatell v. Cline, 196 W. Va. 588, 474 S.E.2d 518 (W. Va. 1996) (standard of review for administrative appeals)
- Moczek v. Bechtold, 178 W. Va. 553, 363 S.E.2d 238 (W. Va. 1987) (license may be revoked for refusal of designated breath test; alternative blood test does not negate suspension for refusal)
- Burks (In re Burks), 206 W. Va. 429, 525 S.E.2d 310 (W. Va. 1999) (arrestee entitled to blood test with assistance of arresting entity; officer not required to obtain and furnish results if test was performed)
- York (State v. York), 175 W. Va. 740, 338 S.E.2d 219 (W. Va. 1985) (denial of requested blood test can implicate due process because it deprives defendant of evidence necessary to defense)
- Lee v. Department of Motor Vehicles, 142 Cal. App. 3d 275, 191 Cal. Rptr. 23 (Cal. Ct. App. 1983) (statutory phrase "at the direction of" an arresting officer does not require the arresting officer to personally administer the test; delegation to another officer who administers the test is permissible)