FILED
No. 17-0174 – Reed, DMV Commissioner v. Boley April 26, 2018
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
Justice Ketchum dissenting: OF WEST VIRGINIA
Four years! It took over four years from the date of Mr. Boley’s arrest,
August 11, 2011, until the date he received a ruling from the OAH, November 10, 2015.
Unbelievably, it took the OAH two and a half years between the administrative hearing
and the date it issued its order revoking Mr. Boley’s driver’s license. Why the two and a
half year delay? I’ll let the circuit court’s order speak for itself: “The Respondent [DMV]
presented no evidence to the Court addressing the reason or cause for the delay of the
decision to revoke [Mr. Boley’s] driving privileges.” (Emphasis added).
Sadly, this case is not an anomaly. We had one just like it recently in
which there was a two-year delay between the defendant’s arrest for DUI and the DMV’s
entry of its initial revocation order. I dissented in that case as well:
“Justice shall be administered without . . . delay.”
W.Va. Const. art. III, § 17. That commendable constitutional
mandate was heinously ignored in this case. It took the DMV
almost two years after the defendant was arrested and charged
with DUI to enter its administrative revocation. Thereafter, it
took the OAH nearly one year to affirm the administrative
revocation. All of these delays have caused this defendant,
who was arrested in 2011, to live with the specter of a
pending driver’s license revocation for the better part of a
decade. This is completely unreasonable and at odds with our
constitutional mandate that justice be administered without
delay.
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Straub v. Reed, 239 W.Va. 844, ___, 806 S.E.2d 768, 775-76 (2017) (Ketchum, J.,
dissenting).1
Sound familiar? It should. The majority opinion in Straub and in the
present case have given the OAH carte blanche to take years, literally years, to enter an
order following a revocation proceeding. These enormous delays offend all notions of
due process and fundamental fairness. See Holland v. Miller, 230 W.Va. 35, 39, 736
S.E.2d 35, 39 (2012). (“[D]ue process concerns are raised when there are excessive and
unreasonable delays in license suspension cases.”). As Straub and the present case make
clear, the OAH may wait at least two and a half years before entering an order without
suffering any repercussions. How long must the OAH delay before this Court says
enough is enough? Five years? A decade?
By way of analogy, imagine if this Court encountered a two and a half year
delay in the context of a misdemeanor DUI criminal matter. A DUI misdemeanor
offense must be brought within one year under W.Va. Code § 61-11-9 [2002]. If it is not
1
In Reed v. Conniff, 236 W.Va. 300, 308, 779 S.E.2d 568,576 (2015), this
Court correctly observed
“[s]ome delays are presumptively prejudicial, and if
found to be presumptively prejudicial, then the government
has the burden to rebut the presumption.” Petry v. Stump, 219
W.Va. 197, 200, 632 S.E.2d 353, 356 (2006). We have little
difficulty in concluding that the overall four-year delay in this
matter and circumstances surrounding the various
continuances are of such a nature as to render the delay
presumptively prejudicial. See Petry, 219 W.Va. 197, 632
S.E.2d 353 (finding six-year delay presumptively prejudicial);
In re Petition of Donley, 217 W.Va. 449, 618 S.E.2d 458
(2005) (finding three-year delay unreasonable); Meadows v.
Reed, No. 14–0138, 2015 WL 1588462 (W.Va. March 16,
2015) (finding four-year delay resulted in prejudice to driver).
2
brought within one year, the case is dismissed. The defendant is not required to
demonstrate how he/she was prejudiced by the delay. We should adopt and apply that
rule in the instant case. That is, if the DMV takes two years after the arrest to enter its
initial revocation order, as we saw in Straub, or if the OAH takes two and a half years
between the administrative hearing and the date it enters its revocation order, as in the
present case, the case should be dismissed because of the unreasonable delay without
requiring the defendant to demonstrate prejudice.
Based on all of the foregoing, I dissent.
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