Michael BUTCHER, Petitioner Below, Appellant, v. Joe E. MILLER, Commissioner, West Virginia Division of Motor Vehicles, Respondent Below, Appellee.
No. 30251.
Supreme Court of Appeals of West Virginia.
Decided June 7, 2002.
569 S.E.2d 89
Submitted May 21, 2002. Concurring Opinion of Justice Albright June 11, 2002.
This Court ... simply by the entry of a court order, cannot compel the giving of love and affection any more than it can change the weather. The Court‘s poor powers in this area are limited to ensuring continued financial support. Such financial support is, of course, beneficial to the child, but falls far short of what constitutes the child‘s best interests.
In conclusion, the majority opinion has the effect of permitting a woman in West Virginia to conceive a child as the result of an adulterous relationship, misrepresent the child‘s paternity by lying to her estranged husband in order to receive child support payments, and, as a result of this deliberate fraud, induce the victim to pay a substantial sum of money every month for a period of many years. Further, the victim is powerless to relieve himself of this obligation even if he can prove the fraud in a court of law. This is not simply injustice, it is justice turned bottom side up. Accordingly, I dissent.
Darrell V. McGraw, Jr., Attorney General, Janet E. James, Assistant Attorney General, Charleston, West Virginia, for respondent.
PER CURIAM.
This appeal was filed by Michael Butcher, appellant/petitioner below (hereinafter referred to as “Mr. Butcher“), from a ruling by the Circuit Court of Wetzel County affirming an administrative decision to suspend Mr. Butcher‘s driver‘s license. Mr. Butcher‘s driver‘s license was suspended by Joe E. Miller, Commissioner of the West Virginia Division of Motor Vehicles, appellee/respondent below (hereinafter “the Commissioner“), as a result of Mr. Butcher‘s refusal to take a designated chemical breath test to determine whether he was driving while impaired. Mr. Butcher contends that he was not properly informed that his driving license would be suspended should he refuse to take the designated chemical breath test. After reviewing the briefs and record in this case and listening to oral arguments, we reverse the circuit court‘s order.
I.
FACTUAL AND PROCEDURAL HISTORY
During the late evening hours of December 14, 1996, officer S.G. Kastigar, a deputy sheriff of Wetzel County, stopped a vehicle driven by Mr. Butcher. Deputy Kastigar stopped the car because Mr. Butcher was driving, at night, without headlights. During the stop, deputy Kastigar noticed signs that indicated Mr. Butcher had been drinking. Deputy Kastigar administered three field sobriety tests to Mr. Butcher. He failed all three tests. When deputy Kastigar asked Mr. Butcher to take a chemical breath test, he refused. Deputy Kastigar then read to Mr. Butcher a standard implied consent statement, thereby informing him that should he refuse to take the chemical breath test his driver‘s license “may” be suspended for a period of at least a year and up to life. Nevertheless, Mr. Butcher again refused to take the chemical breath test. Deputy Kastigar subsequently arrested Mr. Butcher for second offense driving under the influence.
After the arrest, deputy Kastigar forwarded to the Commissioner a report indicating Mr. Butcher had been arrested for driving under the influence. The report also stated that he refused to take a chemical breath test. On December 27, 1996, the Commissioner issued an order notifying Mr. Butcher that his driver‘s license was revoked because of his refusal to take the chemical breath test. The order informed Mr. Butcher that he was entitled to have an administrative hearing to contest the revocation. Mr. Butcher contested the revocation. A hearing was held on April 8, 1997. Following the
On December 30, 1997, Mr. Butcher appealed the Commissioner‘s final order to the circuit court. On June 30, 2000, the circuit court filed an order affirming the Commissioner‘s final order. Mr. Butcher filed a motion for reconsideration on July 6, 2000.1 The circuit court filed an order on June 6, 2001, denying the motion for reconsideration. Thereafter, this appeal was filed.
II.
STANDARD OF REVIEW
The issue presented in this case requires an analysis of our DUI statutes. We have held that “[w]here the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.” Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). Moreover, “[e]videntiary findings made at an administrative hearing should not be reversed unless they are clearly wrong.” Syl. pt. 1, Francis O. Day Co., Inc. v. Director, Div. of Envtl. Prot., 191 W.Va. 134, 443 S.E.2d 602 (1994).
III.
DISCUSSION
Mr. Butcher contends that deputy Kastigar informed him that his driver‘s license “may” be suspended for refusing to take the chemical breath test. Mr. Butcher asserts that this warning was erroneous because under
The pertinent language in
Conversely, the Commissioner argues that deputy Kastigar‘s warning “substantial
In another case cited by the Commissioner, In re Olien, 378 N.W.2d 262 (S.D.1985), a driver had his license revoked after refusing a blood test. The driver contended on appeal that the officer misled him by stating that refusal to take the blood test “can” result in revocation of his license. The applicable statute required warning that a license revocation “shall” be imposed. The Supreme Court of South Dakota acknowledged that the statute was not literally complied with by the arresting officer. However, the court affirmed the revocation after finding “the officer‘s advice substantially complied with [the statute.]” Olien, 378 N.W.2d at 264.
We are not persuaded by the “substantial” compliance authorities cited by the Commissioner. The pertinent language of
Here, Mr. Butcher was never informed that his license “will” be suspended for refusing to take the chemical breath test. Instead, Mr. Butcher was erroneously told that his license “may” be suspended. Our cases have held that “[t]he word ‘may’ generally ... connotes discretion.” State v. Hedrick, 204 W.Va. 547, 552, 514 S.E.2d 397, 402 (1999) (citations omitted). No discretion existed. Mr. Butcher‘s license was automatically suspended when the Commissioner received the report from deputy Kastigar. We are unable to determine from the record what course Mr. Butcher would have taken had he been properly advised of the consequences of his refusal to take the chemical breath test. As Mr. Butcher was unable to make an intelligent decision because of the erroneous warning given to him, we reverse the circuit court‘s order.
IV.
CONCLUSION
Mr. Butcher‘s driver‘s license was suspended as a result of his being given an inaccurate and misleading warning regarding the consequences of his refusal to take a chemical breath test. Therefore, we reverse the circuit court‘s affirmance of the suspension. We further order that Mr. Butcher‘s driver‘s license be restored.
Reversed.
DAVIS, Chief Judge, dissenting.
The Commissioner of the West Virginia Division of Motor Vehicles (hereinafter referred to as the “Commissioner“) suspended the driver‘s license of Michael Butcher, after conducting a hearing in which it was determined that Mr. Butcher unjustifiably refused to take a chemical breath test. The circuit court affirmed the suspension. This Court was asked to determine whether Mr. Butcher was prejudiced by deputy S.G. Kastigar‘s use
Pursuant to
I believe the majority opinion has “[i]gnor[ed] the concept of ‘substantial compliance[,]’ which we have applied so often in the past, [and that] the majority blindly followed the technical letter of the law and failed to uphold the spirit of the law, thereby allowing an injustice.” Brady v. Hechler, 176 W.Va. 570, 574, 346 S.E.2d 546, 551 (1986) (Brotherton, J., dissenting). See also State ex rel. Catron v. Raleigh County Bd. of Educ., 201 W.Va. 302, 496 S.E.2d 444 (1997) (per curiam) (finding substantial compliance in filing grievance); Powderidge Unit Owners Assoc. v. Highland Props., Ltd., 196 W.Va. 692, 474 S.E.2d 872 (1996) (recognizing that substantial compliance with
Moreover, two recent decisions by this Court dictated the analysis that should have been used, as well as the outcome of the instant case. First, in State v. Valentine, 208 W.Va. 513, 541 S.E.2d 603 (2000), we refused to disturb a criminal conviction even though there was technical noncompliance by the trial court with all the requirements of Rule 11 of the West Virginia Rules of Criminal Procedure. The defendant in Valentine entered a guilty plea to voluntary manslaughter. Subsequent to sentencing, the defendant sought to have the guilty plea set aside because the trial court failed to advise him that he could not withdraw his plea should the court impose a sentence in excess of the term proposed in his plea agreement. We acknowledged in Valentine that, under Rule 11(e)(2), it is required that “the court shall advise the defendant that if the court does not accept the recommendation or request, the defendant nevertheless has no right to withdraw the plea.” (Emphasis added). In spite of the “mandatory” requirement of Rule 11(e)(2), this Court “refuse[d] to exalt form over substance in Rule 11 hearings.” Valentine, 208 W.Va. at 517, 541 S.E.2d at 607. In Valentine, we concluded that no evidence existed to prove that the defendant was under any false belief that he could withdraw his plea were he to be sentenced to more than the term recommended in the plea agreement. Consequently, we found the technical violation of Rule 11(e)(2) to be with
Second, the decision in In re Burks, 206 W.Va. 429, 525 S.E.2d 310 (1999), was also dispositive of the analysis and outcome of the instant case. In Burks, the Commissioner entered a final order revoking the appellee‘s driver‘s license after he was arrested for driving under the influence. However, the circuit court reversed the Commissioner‘s order because the arresting officer did not mail the “Statement of Arresting Officer” to the Commissioner within forty eight hours of the appellee‘s arrest as required by statute. The Commissioner appealed the reversal of its order. This Court made two critical observations in order to resolve the case in favor of the Commissioner. First, we recognized “that the 48-hour reporting duty in
A law enforcement officer‘s failure to strictly comply with the DUI arrest reporting time requirements of
W.Va.Code § 17C-5A-1(b) [1994] is not a bar or impediment to the commissioner of the Division of Motor Vehicles taking administrative action based on the arrest report, unless there is actual prejudice to the driver as a result of such failure.
In both Valentine and Burks, we refused to allow noncompliance with technical legal requirements to overturn the rulings. In each case we determined there was no prejudice to the complaining party by the failure of officials to strictly comply with the law. As a result of finding no prejudice, we refused to allow the technical violations to reverse the lower rulings. Here, the majority opinion completely disregarded this Court‘s prior analysis and its prior decisions.
I agree with Mr. Butcher that deputy Kastigar should have used the word “will” during the reading of the license revocation warning. However, for two specific reasons, I do not believe that omission of the word “will” was prejudicial. First, the record failed to disclose that Mr. Butcher would have agreed to take the chemical breath test regardless of the nature of the warning given. It appears that Mr. Butcher, who had a previous DUI arrest, had no intention of taking the chemical breath test. Deputy Kastigar testified that Mr. Butcher stated that he would not take the test because he was previously advised that he should refuse to take the test. Therefore, it is absolutely clear from the record that even had deputy Kastigar used the word “will,” Mr. Butcher would, nevertheless, have refused to take the test.
The second reason I find no prejudice involves the practical impact of the statutory warning. My examination of
Because an initial suspension may be challenged, I believe the Legislature chose to use the word “will” in
For the reasons set forth, I dissent. I am authorized to state that Justice MAYNARD joins me in this dissenting opinion and reserves the right to file a separate dissenting opinion.
ALBRIGHT, Justice, concurring.
(Filed June 11, 2002)
I concur with the result articulated by the majority opinion. I write separately to address a disturbing trend in the manner in which this Court periodically chooses to present new points of law. While the majority opinion correctly decides the substantive legal matter, its pronouncements are framed within the context of a per curiam opinion and no new syllabus points were presented to formalize the ruling. As Justice Workman astutely observed in her dissent to State v. Lopez, 197 W.Va. 556, 476 S.E.2d 227 (1996), this case portrays the increasing use of per curiam opinions to alter the law as it currently exists in West Virginia while declining to enunciate the change in a new syllabus point. It illustrates an evolving problem that this Court should correct. Although this is not the first example of this phenomenon, it is the one least justified. In the past some good reason has existed. It has occurred where there has been a “compromise” decision. It has occurred when the membership of the Court has been in a state of flux, with all the accompanying philosophical shifting, and a “temporary” court had the good judgment to recognize that it was not the time to make major policy changes in the law. None of those phenomenon are present here. Id. at 569, 476 S.E.2d at 240 (Workman, dissenting).
In syllabus point two of Walker v. Doe, 210 W.Va. 490, 558 S.E.2d 290 (2001), this Court explained that “[t]his Court will use signed opinions when new points of law are announced and those points will be articulated through syllabus points as required by our state constitution.”1 Where such new points of law are not articulated through syllabus points for whatever reason, the statements of syllabus point three of Walker are applicable and support my assertion that per curiam opinions are authoritative statement of the law. Syllabus point three of Walker explains:
Per curiam opinions have precedential value as an application of settled principles
of law to facts necessarily differing from those at issue in signed opinions. The value of a per curiam opinion arises in part from the guidance such decisions can provide to the lower courts regarding the proper application of the syllabus points of law relied upon to reach decisions in those cases.
Syllabus point four continues in that vein: “A per curiam opinion may be cited as support for a legal argument.”
Justice McGraw incisively explained as follows in his concurrence to Walker: “Nor does a per curiam opinion‘s failure to formally include a newly-forged legal principle in its syllabus relegate such rule to the status of mere dictum.” 210 W.Va. at 498, 558 S.E.2d at 298 (McGraw, concurring). “[A] new point of law cannot be ignored based simply upon the fact that it was articulated in a per curiam opinion.” Id.
Consequently, while I agree with the conclusions of the competent majority opinion, I would clarify the import of the opinion by emphasizing that a new legal statement has the full force and effect of law, notwithstanding the fact that it is presented in the format of a per curiam opinion and is not formally articulated in a syllabus point. In conformity with the longstanding principle of this Court that we will apply the plain meaning of a statute, I believe that the majority opinion clearly stands for the proposition that where a statute requires that an accused be given written notice that refusal to submit to a chemical breath test “will” result in revocation of his license, this Court will strictly enforce the plain meaning of that statute.2 The majority opinion conclusively establishes that the legislature‘s use, in
The dissent raises another issue worthy of some response by introducing the concept that form should not be elevated over substance. In support of this proposition, the dissent quotes Holstein v. Norandex, Inc., 194 W.Va. 727, 729 n. 2, 461 S.E.2d 473, 475 n. 2 (1995).3 Indeed, I agree with the concept enunciated in the cited footnote of Holstein, a case in which there was an allegation that the appellant failed to comply with technical procedural rules for the designation of a record within a certain time period. Key to the Court‘s Holstein ruling, however, was that the appellant‘s alleged failure to comply with the procedural rule was determined to be harmless, with no showing of actual prejudice. Similarly, in Talkington v. Barnhart, 164 W.Va. 488, 264 S.E.2d 450 (1980), cited in Holstein, the issue was the plaintiffs’ failure to comply with the procedural rule requiring them to notify the defendant that the trial transcript had been filed and made part of the record, and no actual prejudice was found. In Talkington, we explained that “[w]e will not sacrifice an appellant‘s substantial rights for rules that do not result in prejudice.” Id. at 493, 264 S.E.2d at 453.
In its discussion of
Indeed, as this Court observed in Rosier v. Garron, 156 W.Va. 861, 875, 199 S.E.2d 50, 58 (1973), “the distinction between procedural rules and substantive rights is frequently illusory.” This Court should not surrender to the confusion that such a distinction can generate. Purely technical procedural rules which do not affect the substantial rights of the parties are a completely
As this Court candidly remarked in Board of Church Extension v. Eads, 159 W.Va. 943, 953, 230 S.E.2d 911, 917 (1976), “the legal reasoning process of courts is inherently result oriented.” Notwithstanding protestations on the part of countless thousands of appellate judges during the course of numerous centuries, legal reasoning in complex cases inevitably works backward from the result to the rule rather than from the rule to the result. For example, “substantial compliance,” “intention of the drafters,” “clear and unambiguous,” “unconscionability,” and “constructive fraud” are all legal phrases which can be used selectively to arrive at any given result which suits the fancy of the court. Id., 230 S.E.2d at 917-18. The legal approach commonly labeled “substantial compliance” is thus just another of a myriad of legal instruments designed to justify a desired result. It is a component of the legal elasticity which must exist in order to fashion law and protect equities; yet its utilization must not be unbridled. It must not be the justification for outright derogation of a statute. As the majority should have stated explicitly in a syllabus point, a statute which requires a written statement advising an individual that refusal to submit to a test will result in revocation of his driving privileges must be strictly applied in accord with its plain meaning. Elusive concepts of law must not be invoked to justify a jurist‘s determination that violations of explicit and substantial statutory requirements should be condoned.
I am compelled to express one final point of disagreement with the dissent. My final point is that the existence of the ultimate right to challenge an initial suspension of driving privileges for failure to submit to the secondary breath test does not correct or diminish the effect of giving improper notice not complying with the statute. In the interim between the entry of an order preliminarily suspending one‘s license for failure to submit to the test—which may be entered in as little as 48 hours after the arrest—and the rendering of a decision upon the administrative hearing—which may be several weeks or even months after the arrest—the accused‘s license is suspended without regard to whatever challenge the accused may offer at the hearing. The “right” to present exculpatory evidence at that later hearing does not and cannot erase the effect of that suspension, no matter how convincing later exculpatory evidence may be. The suggestion in the dissent that failure to comply with the plainly worded statutory requirement ought to be excused by reason of the later right to such a hearing defies common sense.
Based upon the foregoing, I respectfully submit this concurring opinion.