Gary E. CARROLL, Petitioner Below, Appellee, v. F. Douglas STUMP, Commissioner of the West Virginia Division of Motor Vehicles, Respondent Below, Appellant
No. 32501
Supreme Court of Appeals of West Virginia
Submitted May 24, 2005. Decided July 7, 2005.
619 S.E.2d 261
BENJAMIN, Justice.
Dissenting Opinion by Chief Justice Albright July 8, 2005. Concurring Opinion by Justice Davis July 22, 2005.
months and thereafter until all obligations for reinstatement are fulfilled is reinstated.3
Reversed.
Justice STARCHER dissents and files a dissenting opinion.
STARCHER, J., dissenting:
(Filed July 14, 2005)
I dissent for the reasons set forth in my dissent in State ex rel. F. Douglas Stump, West Virginia Division of Motor Vehicles v. Honorable Gary L. Johnson, Judge of the Circuit Court of Nicholas County, and Basil H. Bishop, 217 W.Va. 733, 619 S.E.2d 246 (No. 32651, July 7, 2005).
I am further authorized to state that Chief Justice ALBRIGHT joins in this separate opinion.
R. Lee Booten, II, Huntington, for Appellee.
BENJAMIN, Justice:
This case is before the Court upon the appeal of F. Douglas Stump, Commissioner of the Division of Motor Vehicles,1 (“Commissioner“) from the January 14, 2004, Opinion Order of the Circuit Court of Wayne County, West Virginia. The order set aside the Commissioner‘s administrative revocation of the driver‘s license of Appellee Gary E. Carroll [Carroll] for a period of six months for driving under the influence of alcohol (“DUI“) in violation of
I.
FACTS AND PROCEDURAL BACKGROUND
On November 5, 2001, Officer David S. Hudson of the Huntington Police Department was dispatched to the scene of a two-vehicle accident. While interviewing Carroll, the driver of one of the vehicles involved, Officer Hudson detected the odor of alcohol on his breath and that he had impaired balance, slurred speech, and blood shot eyes. Carroll admitted that he had consumed about three beers prior to the accident. Carroll failed several field sobriety tests administered by Officer Hudson, including the horizontal gaze nystagmus,3 the walk and turn test,4 recitation of the ABC‘s and a preliminary breath test. Thereupon, Officer Hudson placed Carroll under arrest for driving under the influence of alcohol and transported him to the headquarters of the Huntington Police Department. At police headquarters, Officer Hudson read the standard Implied Consent Statement5 to Carroll, obtained his consent, and administered to him the Intoxilyzer 5000 test. Carroll registered a 0.148 on the Intoxilyzer 5000, which measures the blood alcohol content of the breath.
Upon completion of the Intoxilyzer 5000 and paperwork, Officer Hudson transported Carroll to the Wayne County Magistrate Court.6 It appears from the record that Officer Hudson, as the arresting officer, failed to sign a criminal complaint against Carroll charging him with a violation of
Although Officer Hudson failed to sign a criminal complaint against Carroll before the magistrate, he did prepare and file with the Commissioner a written statement relating to Carroll‘s arrest, referred to as a Statement of Arresting Officer, as required by
Appellee appealed the revocation order to the Circuit Court of Wayne County. On January 14, 2004, the circuit court entered the order at issue herein. The circuit court‘s order indicates its apparent view that due process requires the arresting officer to swear or affirm, in a criminal complaint before a magistrate, the essential elements of
Having considered the Appellant‘s petition for appeal, the record submitted to this Court, the briefs of the Appellant and Appellee, and the oral argument of counsel, we reverse the circuit court‘s January 14, 2004 order for the reasons stated below.
II.
STANDARD OF REVIEW
In the instant matter, the circuit court reversed the Commissioner‘s revocation order, finding the Commissioner did not have jurisdiction to enter the same. “In cases where the circuit court has amended 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). A question of jurisdiction, such as that presented in the instant matter, is a question of law which we review de novo. See, State ex rel. Orlofske v. City of Wheeling, 212 W.Va. 538, 542, 575 S.E.2d 148, 152 (2002), quoting, Snider v. Snider, 209 W.Va. 771, 777, 551 S.E.2d 693, 699 (2001). Similarly, “where 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). Since there is only a legal question presented, and not a factual one, the sole standard of review to be followed by this Court is de novo.
III.
DISCUSSION
The issue on appeal is whether the initiation before a magistrate of a criminal prosecution for DUI is a jurisdictional prerequisite to the Commissioner‘s commencement and completion of the administrative process for the suspension or revocation of a driver‘s license for DUI pursuant to his au-thority
At the outset, we reject the circuit court‘s due process analysis. In Syllabus Point 3 of Jordan v. Roberts, 161 W.Va. 750, 246 S.E.2d 259 (1978), we held that “[t]he administrative proceedings for suspension of a driver‘s license under W. Va.Code, 17C-5A-1, et seq., do not violate this State‘s Due Process Clause.” Therefore, if a jurisdictional prerequisite exists, as found by the circuit court, the same must be statutory.
Pursuant to
shall report to the commissioner of the division of motor vehicles by written statement within forty-eight hours the name and address of the person so arrested. The report shall include the specific offense with which the person is charged, and, if applicable, a copy of the results of any secondary tests of blood, breathe or urine. The signing of the statement required to be signed by this subsection shall constitute an oath or affirmation by the person signing the statement that the statements contained therein are true and that any copy filed is a true copy. The statement shall contain upon its face a warning to the officer signing that to willfully sign a statement containing false information concerning any matter or thing, material or not material, is false swearing and is a misdemeanor.
See also, In re Burks, 206 W.Va. 429, 431, 525 S.E.2d 310, 312 (1999).12 If the Commissioner determines:
upon examination of the written statement of the officer and [the results of any secondary tests of blood, breath or urine] that a person was arrested for [DUI], and that the results of any secondary test or tests indicate that at the time the test or tests were administered the person had, in his or her blood, an alcohol concentration of ten hundredths of one percent or more, by weight, or at the time the person was arrested he or she was under the influence of alcohol, controlled substances or drugs, the commissioner shall make and enter an order revoking the person‘s license to operate a motor vehicle in this state.
Pursuant to
The principal question at the hearing shall be whether the person did drive a motor vehicle while under the influence of alcohol, controlled substances or drugs or did drive a motor vehicle while having an alcohol concentration in the person‘s blood of ten hundredths of one percent or more, by weight . . . . 15
At the hearing, the Commissioner is required to:
make specific findings as to: (1) Whether the arresting law-enforcement officer had reasonable grounds to believe the person to have been driving while under the influence of alcohol . . .; (2) whether the person was lawfully placed under arrest for an offense involving driving under the influence of alcohol . . .; and (3) whether the tests, if any, were administered in accordance with the provision of this article and article five of this chapter.
[t]he commissioner may not stay enforcement of the order. The court may grant a stay or supercedeas of the order only upon motion and hearing, and a finding by the court upon the evidence presented that there is a substantial probability that the appellant shall prevail upon the merits, and the appellant will suffer irreparable harm if the order is not stayed: Provided, That in no event shall the stay or supercedeas of the order exceed one hundred fifty days.
As noted above, the report or Statement of Arresting Officer to the Commissioner is required to “include the specific offense with which the person is charged.”
Carroll cites this Court‘s decision in State ex rel. Burdette v. Scott, 163 W.Va. 705, 259 S.E.2d 626 (1979), as support for the meaning which he ascribes to the word “charged.” The question in Burdette was whether:
a defendant charged in a magistrate court by warrant with an offense of which that court has jurisdiction has the right to be tried in that court, or whether the prosecutor may elect to dismiss the warrant, present the case to the grand jury, and proceed to trial in the circuit court. The parties [and the Court] agree[d] that the answer to this question lies in the proper interpretation of
W. Va.Code, 50-5-7 (1976) .
Burdette, 163 W.Va. at 706, 259 S.E.2d at 628. Focusing on that language of
The only word that might be considered ambiguous in W. Va.Code, 50-5-7 (1976) , is “charged.” Yet,W. Va.Code, 62-1-1 and-2 (1965) , make it clear that a person is “charged” with a crime once a written complaint has been filed against him and a judicial officer, having found that the complaint contains sufficient facts to establish probable cause that a crime has been committed by the defendant, issues a warrant. When these sections are read together withW. Va.Code, 50-5-7 (1976) , as required underW. Va.Code, 50-4-2 (1976) , the word “charged” has no ambiguity.
Id. at 709, 259 S.E.2d at 629.17 In Syllabus Point 2 of Burdette, we held “that
We conclude that the Legislature did not intend the word “charged” in
[w]henever any person is arrested for any violation of this chapter punishable as a misdemeanor, the arrested person shall be immediately taken before a magistrate or court within the county in which the offense charged is alleged to have been committed and who has jurisdiction of the offense and is nearest or most accessible with reference to the place where the arrest is made, in any of the following cases: . . . (3) When the person is arrested upon a charge of driving under the influence of alcohol . . . . (Emphasis added)
Here, the Legislature has made it perfectly clear that “charged” and “charge” have reference to the offense for which the law-enforcement officer made the arrest. “Charged” plainly could not mean the prior initiation before a magistrate of a criminal prosecution for DUI because when the term is used, the arrested person has not yet appeared before a magistrate.
[w]henever a person is arrested for any violation of this chapter punishable as a misdemeanor, and such person is not immediately taken before a justice [magistrate] or court as hereinbefore required [
W. Va.Code § 17C-19-3 ], the arresting officer shall prepare written notice to appear in court containing the name and address of such person, the license number of his vehicle, if any, the offense charged, and the time and place when and where such person shall appear in court. (Emphasis added)
Again, the Legislature has used the term “offense charged” before the person arrested has made any appearance before a judicial officer.
If the Legislature had intended for the term “offense . . . charged” in
This Court has repeatedly recognized that legislative procedures for the administrative revocation of a driver‘s license are meant to protect the public from persons who drive under the influence of alcohol.18 Had the Legislature intended initiation before a magistrate of a criminal prosecution for DUI to be a jurisdictional condition precedent to the administrative revocation of a driver‘s license for DUI by the Commissioner, it would have said so. Accordingly, we now hold that a person is “charged” with an offense, for the purposes of
This Court has previously recognized that administrative license revocation proceedings and criminal DUI proceedings are two separate and distinct proceedings. In the recent case of Mullen v. Division of Motor Vehicles, 216 W.Va. 731, 734, 613 S.E.2d 98, 101 (2005), this Court, through Justice Starcher, observed that we have:
clearly recognized that the two ‘tracks’ of criminal and civil drivers’ license-related proceedings that arise out of an incident where a person is accused of DUI are separate. But they are also interrelated to the point that due process requires that the results of related criminal proceedings must be given consideration by the DMV in the DMV‘s administrative process.
Likewise, we noted:
If the Legislature had wanted to so intertwine the criminal and civil aspects of DUI law as to automatically void related administrative driver‘s license suspensions when DUI criminal charges are dropped or unproven, the Legislature could have clearly done so—but it did not.
Id. Although, the Commissioner is to give consideration to the results of related criminal proceedings, the criminal proceedings are not dispositive of the administrative license revocation proceedings and are not a jurisdictional prerequisite to the administrative proceedings. In Choma v. West Virginia Division of Motor Vehicles, 210 W.Va. 256, 260, 557 S.E.2d 310, 314 (2001), we recognized that we had previously
upheld the statutory two-track approach . . . [and] that the separate procedures [administrative and criminal] are connected and intertwined in important ways. For example, criminal arrests for DUI trigger license suspensions,
W. Va. Code, 17C-5A-1(b) [1994] ; and a criminal conviction for DUI is in itself grounds for license suspension.W. Va.Code, 17C-5A-1a (1994) .
Similarly, in Wagoner v. Sidropolis, 184 W.Va. 40, 43, 399 S.E.2d 183, 186 (1990) (per curiam), we stated:
the administrative enhancement provisions of
W. Va.Code § 17C-5A-2 (1981) are triggered by the statement of an arresting officer rather than the guilty plea of an offender. The guilty plea is only relevant to criminal sanctions which may result. Administrative actions and criminal sanctions are independent lines of inquiry which must not be confused or integrated. As we explained in Shingleton v. City of Romney, 181 W.Va. 227, 229, 382 S.E.2d 64, 66 (1989), “[t]he administrative sanctions are separate and distinct from the criminal penalties . . . .” (emphasis added)
Further, we noted that “[t]he initiation of criminal proceedings is not a necessary predicate to the initiation of administrative sanctions” under the provisions of
If the initiation before a magistrate of a criminal prosecution for DUI is made a jurisdictional prerequisite to an administrative revocation of a driver‘s license for DUI, the administrative proceedings and the criminal process will not be kept “separate and distinct.” Perhaps, more importantly, if this Court were to allow the intrusion of criminal procedures into the administrative proceedings that intrusion would in many instances thwart the legislative objective of the administrative proceedings, namely, protecting the innocent public by promptly removing persons who drive under the influence of alcohol from West Virginia‘s roads and highways. The administrative proceedings could be delayed or prevented by the failure of the arresting officer to fully and adequately comply with applicable criminal rules of procedure.
A law-enforcement officer arresting a person for DUI has two distinct and separate duties to perform. The first is to file a report or Statement of Arresting Officer with the Commissioner as required by
In light of the above, we hold that administrative license revocation proceedings for driving a motor vehicle under the influence of alcohol, controlled substances or drugs which are initiated pursuant to Chapter 17C of the West Virginia Code are proceedings separate and distinct from criminal proceedings arising from driving a motor vehicle under the
We also quickly dispose of Appellant‘s remaining constitutional arguments. This Court has “consistently held, [that] license revocation is an administrative sanction rather than a criminal penalty.” State ex rel. Department of Motor Vehicles v. Sanders, 184 W.Va. 55, 58, 399 S.E.2d 455, 458 (1990) (per curium), citing, Shingleton v. City of Romney, 181 W.Va. 227, 229, 382 S.E.2d 64, 66 (1989); Shell v. Bechtold, 175 W.Va. 792, 795, 338 S.E.2d 393, 396; Stalnaker v. Roberts, 168 W.Va. 593, 597, 287 S.E.2d 166, 168 (1981). Thus, the constitutional provisions applicable to criminal proceedings cited by the Appellee have no relevance to this administrative license revocation proceeding. Even if relevant to the administrative license revocation proceeding, the circuit court specifically found that the arresting officer had probable cause to arrest Carroll for operation of a motor vehicle while under the influence and that the November 5, 2001 arrest was lawful. Having not challenged these basic findings, Carroll‘s constitutional arguments fail.
IV.
CONCLUSION
For the reasons stated above, the January 14, 2004 Order of the Circuit Court of Wayne County, West Virginia, is hereby reversed, and this matter is remanded to that court for the immediate entry of an order reinstating the Commissioner‘s August 25, 2003 order revoking the Appellee‘s driver‘s license.
Reversed and remanded with directions.
ALBRIGHT, Chief Justice, dissenting.
(Filed July 8, 2005)
In its aggressive reach to permit the administrative revocation of an operator‘s license to operate independently of criminal proceedings for driving under the influence of alcohol, the majority has ignored both statutory prerequisites necessary for the invocation of the administrative revocation proceedings and basic precepts inherent in criminal proceedings in this state. Refusing to recognize the interrelated nature of administrative and criminal sanctions for driving under the influence, the majority wrongly concludes that shoddy police procedures should be overlooked and license revocation permitted even when the statutory conditions for imposing such administrative sanction have not been fully met.
Under
In this case, the arresting officer took the Appellee to jail, completed a criminal complaint which he failed to sign, and left the document for the magistrate‘s review in the morning. Upon the magistrate‘s perusal of the criminal complaint, the absence of the arresting officer‘s signature was immediately recognized as a fatal procedural impediment. Consequently, the complaint was not lodged and a warrant was not issued due to the absence of a sworn complaint and, consequently, the failure to demonstrate probable cause. In short, the Appellee was never formally charged by the Wayne County Magistrate with driving under the influence in
In its review of the administrative appeal, the circuit court identified various procedural flaws with regard to the revocation of Appellee‘s operator‘s license, including the impact of the fact that probable cause had never been found to charge Appellee with driving under the influence. Rather than appreciating the significance of those fundamental procedural flaws, the majority—intent on upholding a revocation at all costs—either downplayed their importance or improperly analyzed the procedures involved.
While citing the seminal case from this Court that properly identifies the meaning of the term “charged” in criminal law parlance, the majority completely overlooked its significance. In State ex rel. Burdette v. Scott, 163 W.Va. 705, 259 S.E.2d 626 (1979), this Court elucidated:
W.Va.Code, 62-1-1 [defining criminal complaint] and-2 [issuance of warrant] (1965), make it clear that a person is “charged” with a crime once a written complaint has been filed against him and a judicial officer, having found that the complaint contains sufficient facts to establish probable cause that a crime has been committed by the defendant, issues a warrant.
163 W.Va. at 709, 259 S.E.2d at 629. Rather than appreciating the importance of the second part of the “charging” process—the approval by the judicial officer of the sufficiency of the grounds to establish probable cause—the majority completely disavows the critical nature of this aspect of the “charging” process and concludes that the term “charged” is synonymous with arrest.
The circuit court fully understand the dangers of permitting a law enforcement officer to institute revocation proceedings without the critical component of independent review by a judicial officer:
[D]ue process requires that the arresting officer complete the criminal charging process before he can proceed to the administrative revocation hearing. To rule otherwise would permit law enforcement officers to make arbitrary, and possibly unlawful arrests and never seek a judicial charge for the underlying criminal offense. I do not believe that due process would be satisfied by permitting a law enforcement officer to act unilaterally in triggering the administrative revocation procedure without any judicial involvement in the arrest and charge. A law enforcement officer‘s reasonable belief that a person is driving while intoxicated is no substitute for the independent judicial determination of probable cause for an arrest.
The majority goes seriously astray in its analysis by insisting that the administrative and criminal sanctions for driving under the influence are “separate and distinct.” This is an inaccurate statement of the law. Simple perusal of the statute authorizing administrative sanctions for driving under the influence demonstrates the interrelated nature of these two forms of punishment for committing this offense. Only upon an arrest for violation of
In its haste to disconnect the administrative sanctions from the criminal penalties for driving under the influence, the majority fails to understand that the criminal charging process, and all the attendant procedural protections that necessarily accompany that process, are the springboard from which the administrative sanctions are authorized by the Legislature. Without a valid charging process—one that includes review by a judicial officer of the sufficiency of probable cause for the charge—there is no predicate basis for initiating the administrative sanctions authorized by
Rather than attempting to salvage one revocation proceeding that was improperly initiated, the majority should have recognized that our legal system would be better served with a forward looking resolution of this matter. Instead of doggedly upholding Appellee‘s license revocation, the majority should have recognized that the better result for purposes of the long term operation of the license revocation system would have been to hold that an unsigned complaint that results in the lack of a formal charge for an offense falling under
Based on the foregoing, I respectfully dissent. I am authorized to state that Justice STARCHER joins me in this dissent.
DAVIS, Justice, concurring.
(Filed July 22, 2005)
I concur completely in the decision reached by the majority opinion in this case. I write separately to elaborate on the majority‘s interpretation of
While I fully agree with the majority‘s conclusion that, under
As plainly demonstrated by the majority and dissenting opinions in this case, the term “charged” in
With respect to whether the Legislature intended the word “charged” as used in
[i]f, upon examination of the written statement of the officer and the tests [sic] results described in subsection (b) of this section, the commissioner shall determine that a person was arrested for an offense described in section two [§ 17C-5-2], article five of this chapter . . . and that the results of any secondary test or tests indicate that at the time the test or tests were administered the person had, in his or her blood, an alcohol concentration of eight hundredths of one percent or more, by weight, or at the time the person was arrested he or she was under the influence of alcohol, controlled substances or drugs, the commissioner shall make and enter an order revoking the person‘s license to operate a motor vehicle in this state.
(Emphasis added). Thus, in describing when the commissioner shall order revocation of a driver‘s license based upon the written statement of the arresting officer, the Legislature has mandated that the commissioner examine the document to determine that “a person was arrested.”
“[I]t is not for [courts] arbitrarily to read into [a statute] that which it does not say. Just as courts are not to eliminate through judicial interpretation words that were purposely included, we are obliged not to add to statutes something the Legislature purposely omitted.” . . . Moreover, “[a] statute, or an administrative rule, may not, under the guise of ‘interpretation,’ be modified, revised, amended or rewritten.”
Perito v. County of Brooke, 215 W.Va. 178, 184, 597 S.E.2d 311, 317 (2004) (additional internal quotations, and citations, omitted). Viewed in this light, it is plain that the Legislature‘s use of the term “charged” in
Moreover, while the majority‘s opinion deftly distinguishes between the nature of the penalties at issue in the case sub judice, i.e., administrative sanctions, versus those which are not at issue in this proceeding as a result of their dismissal below, i.e., criminal sanctions, my dissenting colleagues have failed to make such a distinction, choosing, instead, to blur this critical line. When an
In its deliberation and determination of this case, the majority recognizes such a distinction. The dissenters, however, do not. Instead, my dissenting brethren obfuscate the difference between the procedures and penalties provided for the imposition of administrative versus criminal sanctions for driving under the influence by suggesting that both types of sanctions require the exact same evidentiary standards and procedural requirements. This interpretation of the law is not only incorrect, but is violative of the basic constitutional concept prohibiting the imposition of double jeopardy for the same offense: “No person shall . . . be twice put in jeopardy of life or liberty for the same offense.”
For the foregoing reasons, I respectfully concur with the Opinion of the Court.
Notes
[D]ue process requires that the arresting officer complete the criminal charging process before he can proceed to the administrative revocation hearing. To rule otherwise would permit law enforcement officers to make arbitrary, and possibly unlawful arrests and never seek a judicial charge for the underlying criminal offense. I do not believe due process would be satisfied by permitting a law enforcement officer to act unilaterally in triggering the administrative revocation procedure without any judicial involvement in the arrest and charge. A law enforcement officer‘s reasonable belief that a person is driving while intoxicated is no substitute for the independent judicial determination of probable cause for an arrest.
I find that the administrative revocation procedure is triggered by a lawful arrest, but cannot proceed to resolution without a lawful charge for the underlying specific offense. The police officer in this case could have resubmitted a signed criminal complaint anytime within one year of the initial arrest to satisfy the due process requirements owed to the Petitioner before this administrative hearing placed his operators license in jeopardy. See
The Magistrate could find no probable cause upon the merits or could have adjudicated the defendant not guilty on the merits without having any affect on the Commissioner‘s findings so long as the officer completed his law enforcement charging function. However, the officer‘s inadvertent failure to charge the Petitioner with the underlying criminal offense within the one-year statute of limitations constitutes a fatal due process error. Id.
It is therefore, ordered that the Commissioner had no jurisdiction to conduct an administrative hearing regarding Petitioner‘s violation of