IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2020 Term
_______________ FILED
November 6, 2020
released at 3:00 p.m.
No. 19-0350 EDYTHE NASH GAISER, CLERK
_______________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
EVERETT FRAZIER,
Commissioner of the West Virginia Division of Motor Vehicles,
Petitioner
v.
JOHN H. FOUCH, III,
Respondent
____________________________________________________________
Appeal from the Circuit Court of Kanawha County
The Honorable Jennifer F. Bailey, Judge
Civil Action No. 18-AA-223
REVERSED AND REMANDED WITH DIRECTIONS
____________________________________________________________
Submitted: October 6, 2020
Filed: November 6, 2020
Patrick Morrisey, Esq. David Pence, Esq.
Attorney General Zerbe & Pence, PLLC
Elaine L. Skorich, Esq. Charleston, West Virginia
Assistant Attorney General Nigel E. Jeffries, Esq.
Steven E. Dragisich, Esq. Charleston, West Virginia
Assistant Attorney General Counsel for Respondent
Charleston, West Virginia
Counsel for Petitioner
CHIEF JUSTICE ARMSTEAD delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “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.”
Syl. Pt. 1, Muscatell v. Cline, 196 W. Va. 588, 474 S.E.2d 518 (1996).
2. “In cases where the circuit court has [reversed] 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).
3. “In an administrative hearing conducted by the Division of Motor
Vehicles, a statement of an arresting officer, as described in W. Va. Code § 17C-5A-1(b)
(2004) (Repl. Vol. 2004), that is in the possession of the Division and is offered into
evidence on behalf of the Division, is admissible pursuant to W. Va. Code § 29A-5-2(b)
(1964) (Repl. Vol. 2002).” Syl. Pt. 3, Crouch v. W. Va. Div. of Motor Vehicles, 219 W. Va.
70, 631 S.E.2d 628 (2006).
ARMSTEAD, Chief Justice:
The Office of Administrative Hearings (“OAH”) entered an order affirming
the revocation of Respondent John H. Fouch’s (“Mr. Fouch”) driver’s license for driving
under the influence of alcohol (“DUI”). 1 The arresting officer did not attend the OAH
hearing but the OAH relied on the officer’s DUI information sheet in its ruling affirming
the revocation. The circuit court reversed the OAH’s order, concluding that “the decision
of the hearing examiner to admit [the arresting officer’s] reports and to consider the notes
made therein without proper authentication[,] which impermissibly shifted the burden of
proof from the DMV to [Mr. Fouch,] was arbitrary, capricious, and an abuse of discretion.”
On appeal, Petitioner Everett Frazier, Commissioner of the West Virginia
Division of Motor Vehicles (“DMV”), asserts the circuit court erred by: 1) ruling that the
DMV’s records, including the DUI information sheet, should not have been admitted into
evidence and considered by the OAH; and 2) ruling that the DMV has the burden of
securing the arresting officer’s attendance at the OAH hearing.
After review, we agree with both of the DMV’s arguments. We therefore
reverse the circuit court’s March 6, 2019, order, and remand this matter to the circuit court
for further proceedings consistent with our ruling herein.
1
When the revocation order was entered, Patricia S. Reed was the Commissioner
of the West Virginia Division of Motor Vehicles. Pursuant to Rule 41(c) of the Rules of
Appellate Procedure, the current commissioner, Everett Frazier, has been automatically
substituted as the named petitioner herein.
1
I. FACTUAL AND PROCEDURAL BACKGROUND
Mr. Fouch was arrested and charged with DUI on April 15, 2013. According
to the DUI information sheet completed by the arresting officer, Officer Charles
Thompson, four eyewitnesses saw Mr. Fouch “almost hit . . . [a] gas station” while driving
in Wayne County, West Virginia. Further, the DUI information sheet provides that Mr.
Fouch had the odor of an alcoholic beverage on his breath; staggered while walking;
staggered while standing; had slurred speech; exhibited a lethargic attitude, and bloodshot
eyes; admitted to drinking and taking sleeping medication prior to driving; and failed
several field sobriety tests. 2 Officer Thompson arrested Mr. Fouch for DUI, transported
him to the police station, and administered a secondary chemical test which revealed that
Mr. Fouch’s blood alcohol content was .120%.
The DMV entered an order revoking Mr. Fouch’s driver’s license on April
25, 2013. Because Mr. Fouch was employed as a commercial driver, the DMV also entered
an order of disqualification of his commercial driver’s license. Mr. Fouch timely requested
a hearing before the OAH to contest the revocation and disqualification orders.
The OAH hearing was scheduled for August 13, 2013. At the request of both
the DMV and Mr. Fouch, the OAH issued a subpoena for Officer Thompson to appear at
2
The DUI information sheet provides that during the walk-and-turn test, Mr. Fouch
could not keep his balance, stopped while walking, missed heel-to-toe, stepped off the line,
and took an “incorrect number of steps.” Regarding the one leg stand test, the DUI
information sheet provides that Mr. Fouch “could not perform test[,] could barely stand.”
2
this hearing. This hearing was continued sua sponte by the OAH hearing examiner due to
a family emergency.
The hearing was rescheduled for March 5, 2014. At the request of the DMV,
the OAH issued a subpoena to Officer Thompson to appear at this hearing. Both parties
moved for a continuance because Officer Thompson failed to appear and because counsel
for Mr. Fouch was ill.
The hearing was rescheduled for October 9, 2014. At the request of Mr.
Fouch, the OAH issued Officer Thompson a subpoena to appear at this hearing. He did
not appear. The DMV moved to continue the hearing because counsel “states that she was
just made aware of possible video evidence and would like time to obtain it.” Mr. Fouch
did not object to the continuance.
The hearing was rescheduled for July 28, 2015. Once again, the OAH issued
Officer Thompson a subpoena to appear at the hearing. 3 He failed to appear. The DMV
moved to continue the hearing due to Officer Thompson’s failure to appear. Mr. Fouch
objected “because the [DMV] has continued this matter twice previously.” The OAH
hearing examiner granted the continuance.
The hearing was rescheduled for February 17, 2016. The OAH issued
Officer Thompson a subpoena to appear at this hearing. Officer Thompson failed to
3
It is unclear which party requested the subpoena for this hearing.
3
appear. 4 The DMV moved to continue the hearing due to Officer Thompson’s failure to
appear. The OAH’s order granting the continuance provides that there was no objection to
the DMV’s motion to continue.
The hearing was rescheduled for June 15, 2016. Officer Thompson was
issued a subpoena but failed to appear at the hearing. Counsel for the DMV stated:
I have mailed the subpoena and emailed the subpoena
to his [Officer Thompson’s] personal email. So I do not know
why he’s not making [an] appearance here today. With that,
and that being the fourth time [he’s failed] to appear, I would
ask that you just accept the DMV submission . . . under [W.
Va. Code §] 29A-5-2(b) as the record of what the
Commissioner’s file entails.
Mr. Fouch objected to the DMV’s records being admitted and moved to
dismiss the revocation. The following exchange took place at the hearing:
Counsel for Mr. Fouch: I want to object to that being
received into the record. As both of you all know, I conduct
extensive cross examinations of these officers with regard to
their ability to conduct the tests and recognize certain clues that
are contained in the report, spend quite a bit of time doing that,
and I’d object to that being admitted. And I’d further move
that due to the fact that we’ve been here – this is the fourth time
without the officer present – that it be dismissed. My client
(unintelligible) has paid me quite a bit of money to come down
here and pays me every time that I’m down here, because I
have to prepare, and, he certainly shouldn’t be penalized for
the officer’s inaction. I move to dismiss.
Hearing Examiner: I can’t – I don’t have the authority
to dismiss it. With regard to admitting the DUI Information
Sheet, we do take these into evidence under [W. Va. Code §]
4
It is unclear which party requested the subpoena for this hearing.
4
29A-5-2(b) but that doesn’t mean I’m going to give it, you
know, full weight or any weight for that matter. If you do want
the officer here, we can continue it and, you know, try to get
him –
Counsel: No, I certainly don’t want my client to have
to incur further expenses.
The hearing examiner admitted the DMV’s records over Mr. Fouch’s
objection. The DMV’s records consisted of 1) Officer Thompson’s DUI information sheet,
2) the “Intox EC/IR-II Subject Test” sheet which showed the results of Mr. Fouch’s
secondary chemical breath test, and 3) the West Virginia Implied Consent Statement.
The hearing proceeded, and Mr. Fouch was the only witness who testified.
He stated that he did not consume alcohol on the night he was arrested. He testified that
he rinsed his mouth with Listerine and had used an Albuterol breathing treatment prior to
driving his intoxicated nephew to the gas station. Mr. Fouch stated that his nephew was
acting erratically while in the car, stating that he grabbed the steering wheel, and “was
sticking his head out [of] the sunroof and was yelling at people[.]” According to Mr.
Fouch, his nephew continued to cause a scene when they arrived at the gas station. Officer
Thompson arrived at the gas station, and began questioning Mr. Fouch. In sum, Mr.
Fouch’s testimony was that he did not consume alcohol prior to driving, and that his use of
Listerine and an Albuterol treatment skewed the results of the secondary chemical test.
Following Mr. Fouch’s testimony, his counsel vouched the record that he
would have cross-examined Officer Thompson on a number of issues. Counsel for the
5
DMV did not make any closing argument, she simply stated, “I’ll just let the record stand
where it’s at.”
The OAH entered its final order upholding the DMV’s orders of revocation
and disqualification on June 26, 2017. The OAH explained its ruling as follows:
The Petitioner stated that he did not drink alcohol and
believes the Listerine or Albuterol caused the high blood
alcohol content reading. However, when residual mouth
alcohol is present, the Intox EC/IR-II shows such a result. In
this case, the Intox EC/IR-II printout does not show a “residual
mouth alcohol” reading. Additionally, the secondary chemical
test was administered to the Petitioner more than one hour after
the time of initial contact, which means the Listerine or
Albuterol would have to have lingered for more than one hour
in the Petitioner’s mouth, which is highly unlikely. The
Petitioner’s testimony simply does not add up. Therefore, the
Order of Revocation should be affirmed.
Mr. Fouch filed an appeal of the OAH’s ruling in the Circuit Court of
Kanawha County. He alleged that he was denied his right to confront his accuser, and that
he suffered actual prejudice because the DMV did not secure the presence of Officer
Thompson at the administrative hearing.
The circuit court entered its final order on March 6, 2019. It determined that
“the decision of the hearing examiner to admit the investigating officer’s reports and to
consider the notes made therein without proper authentication[,] which impermissibly
shifted the burden of proof from the DMV to [Mr. Fouch,] was arbitrary, capricious, and
an abuse of discretion.” Further, the circuit court found that “W. Va. Code § 29A-5-2(b)
describes the designation of the record for purposes of appeal and is not a rule concerning
the admission of evidence in administrative proceedings as it would directly conflict with
6
the application of the West Virginia Rules of Evidence.” The circuit court concluded that
“Officer Thompson’s reports were not properly admitted pursuant to the West Virginia
Rules of Evidence, and, therefore, should not have been considered by the hearing
examiner.” The circuit court’s order also provided that the DMV was responsible for
securing the attendance of Officer Thompson at the OAH hearing. Based on the foregoing,
the circuit court reversed the OAH’s order.
Following entry of the circuit court’s order, the DMV filed the instant appeal.
II. STANDARD OF REVIEW
This Court has previously established the standards for our review of a circuit
court’s order deciding an administrative appeal:
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.
Syl. Pt. 1, Muscatell v. Cline, 196 W. Va. 588, 474 S.E.2d 518 (1996).
Further, “[i]n cases where the circuit court has [reversed] 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. With these standards
as guidance, we consider the parties’ arguments.
7
III. ANALYSIS
The DMV asserts the circuit court erred by ruling that: 1) the DMV’s records
should not have been admitted into evidence and considered by the OAH; and 2) the burden
is on the DMV to secure the arresting officer’s attendance at the OAH hearing. We address
both of these arguments in turn.
A. DMV’s Records
The first issue is whether the OAH erred by admitting the DMV’s records,
including Officer Thompson’s DUI information sheet, into evidence and considering them
in its order upholding the revocation of Mr. Fouch’s driver’s license. This issue requires
us to examine W. Va. Code § 29A-5-2(b) (1964). 5 It provides that
[a]ll evidence, including papers, records, agency staff
memoranda and documents in the possession of the agency, of
which it desires to avail itself, shall be offered and made a part
of the record in the case, and no other factual information or
evidence shall be considered in the determination of the case.
Documentary evidence may be received in the form of copies
or excerpts or by incorporation by reference.
5
When examining this statute, we are mindful of our rules of statutory
interpretation. This Court has held that in deciding the meaning of a statutory provision,
“[w]e look first to the statute’s language. If the text, given its plain meaning, answers the
interpretive question, the language must prevail and further inquiry is foreclosed.”
Appalachian Power Co. v. State Tax Dep’t of W. Va., 195 W. Va. 573, 587, 466 S.E.2d
424, 438 (1995); see also Syl. Pt. 2, Crockett v. Andrews, 153 W. Va. 714, 172 S.E.2d 384
(1970) (“Where the language of a statute is free from ambiguity, its plain meaning is to be
accepted and applied without resort to interpretation.”); and Syl. Pt. 2, State v. Epperly,
135 W. Va. 877, 65 S.E.2d 488 (1951) (“A statutory provision which is clear and
unambiguous and plainly expresses the legislative intent will not be interpreted by the
courts but will be given full force and effect.”).
8
This Court addressed W. Va. Code § 29A-5-2(b) in 2006, holding that
[i]n an administrative hearing conducted by the Division of
Motor Vehicles, a statement of an arresting officer, as
described in W. Va. Code § 17C-5A-1(b) (2004) (Repl. Vol.
2004), that is in the possession of the Division and is offered
into evidence on behalf of the Division, is admissible pursuant
to W. Va. Code § 29A-5-2(b) (1964) (Repl. Vol. 2002).
Syl. Pt. 3, Crouch v. W. Va. Div. of Motor Vehicles, 219 W. Va. 70, 631 S.E.2d 628 (2006).
The circuit court determined that this syllabus point was inapplicable in the
present case “as this case concerns a modern administrative review hearing before the
OAH, and not the DMV.” In essence, the circuit court ruled that the creation of the OAH
in 2010, which divested the DMV of its responsibility to conduct administrative hearings,
rendered syllabus point three of Crouch inapplicable.
During oral argument in this matter, counsel for the DMV argued that this
Court has addressed this issue in two recent decisions and rejected the circuit court’s
analysis. According to the DMV, this Court has concluded that the OAH remains
statutorily obligated to receive the DMV’s records into evidence. We agree.
This Court noted in a recent decision that “[i]t is well-settled that the DMV
file is to be accepted into evidence at a hearing before the OAH.” Frazier v. Condia, No.
19-0465, 2020 WL 4355713, at *2 (W. Va. July 30, 2020)(memorandum decision). The
Court in Condia recognized the mandatory direction contained in W. Va. Code § 29A-5-
2(b) that “[a]ll evidence, including papers, records, agency staff memoranda and
documents in the possession of the agency, of which it desires to avail itself, shall be
offered and made a part of the record in the case[.]” (Emphasis added). Further, the Court
9
explained that the creation of the OAH in 2010 did not change the mandatory direction that
the DMV’s file shall be offered and made part of the record:
We have repeatedly reminded litigants that this premise
continues to hold true, though the agency in possession of the
administrative file is no longer responsible for conducting the
administrative hearing. See W. Va. Code § 17C-5C-5(a) (Repl.
Vol. 2013) (2010) (recognizing the “transition of the
administrative hearing process from the Division of Motor
Vehicles to the Office of Administrative Hearings”). In 2010,
“[t]he Office of Administrative Hearings [was] created as a
separate operating agency within the Department of
Transportation.” W. Va. Code § 17C-5C-1(a) (2010) (Repl.
Vol. 2013).
Id. at *2. 6
In another recent decision, Frazier v. Riddel, No. 19-0197, 2020 WL
4355641 (W. Va. July 30, 2020)(memorandum decision), the Court considered an appeal
of a circuit court’s order that was nearly identical to the order on appeal in this matter. As
in the present matter, the circuit court in Riddel determined that syllabus point three of
Crouch “is inapplicable as this case concerns a modern administrative review hearing
before the OAH, and not the DMV.” Additionally, the circuit court’s order in Riddel
concluded that the DMV “is not entitled to have [its] file made part of the administrative
record without introducing documentary evidence through an appropriate witness.” Id. at
*2. The Court rejected the circuit court’s analysis in Riddel, stating:
6
The Court in Condia also noted that this Court has continued to rely on syllabus
point three of Crouch in cases decided since the OAH was created in 2010. See Syl. Pt. 7,
Dale v. Odum, 233 W. Va. 601, 760 S.E.2d 415 (2014).
10
The circuit court opined that the creation of the independent
OAH in 2010, which divested the DMV of its responsibility to
conduct administrative hearings, created a “modern
administrative review hearing” process that rendered our prior
syllabus points interpreting this statute null. See Syl. Pt. 3,
Crouch v. W. Va. Div. of Motor Vehicles, 219 W. Va. 70, 631
S.E.2d 628 (2006) (“In an administrative hearing conducted by
the Division of Motor Vehicles, a statement of an arresting
officer, . . . that is in the possession of the Division and is
offered into evidence on behalf of the Division, is admissible
pursuant to W. Va. Code § 29A-5-2(b) (1964) (Repl. Vol.
2002).”). We have, however, continued to uphold this
legislative requirement in the decade since the OAH began.
Id. at *3 (Emphasis added, footnote omitted).
We find this Court’s analysis in Condia and Riddel to be directly applicable
to the instant matter. The circuit court clearly erred by ruling that the DMV’s file, including
Officer Thompson’s DUI information sheet, should not have been admitted into evidence
and considered by the OAH. While the circuit court issued its ruling in this case prior to
our decisions in Condia and Riddel, we note that this Court also addressed this issue in a
2018 case, which was decided prior to the circuit court’s ruling in the instant matter. In
the 2018 case, the Court ruled:
We have previously stated 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.[’]” Crouch, 219 W.Va. [at] 76,
631 S.E.2d [at] 634. As evidenced by the use of the word
“shall,” admission of the evidence identified in the statute is
mandatory. Id. The secondary chemical test result was in the
DMV’s possession, and the DMV sought to avail itself of the
result. Accordingly, the result of the secondary chemical test
should have been admitted into evidence, subject to a
11
rebuttable presumption as to its accuracy. Id. at 76, n.12, 631
S.E.2d at 634, n.12 (“We point out that the fact that a document
is deemed admissible under the statute does not preclude the
contents of the document from being challenged during the
hearing. Rather, the admission of such a document into
evidence merely creates a rebuttable presumption as to its
accuracy.”).
Reed v. Lemley, No. 17-0797, 2018 WL 4944553, at *4 (W. Va. Oct. 12, 2018)
(memorandum decision). 7
7
We also note that in a 2014 case, Dale v. Reynolds, No. 13-0266, 2014 WL
1407375, at *4 (W. Va. April 10, 2014) (memorandum decision), this Court provided that
there is no requirement that the evidence of record be
testimonial as opposed to documentary. See W. Va. Code §
29A-5-2(b) (“All evidence, including papers, records, agency
staff memoranda and documents in the possession of the
agency, of which it desires to avail itself, shall be offered and
made a part of the record in the case, and no other factual
information or evidence shall be considered in the
determination of the case. Documentary evidence may be
received in the form of copies or excerpts or by incorporation
by reference.”). See also Syl. pt. 3, Crouch v. W. Va. Div. of
Motor Vehicles, 219 W. Va. 70, 631 S.E.2d 628 (2006)
(holding that statements of the arresting officer are admissible
in the context of driver’s license revocation proceedings); Dale
v. Odum, ––W. Va. ––, –– S.E.2d ––, 2014 WL –– (Nos. 12–
1403 & 12-1509 Feb. 11, 2014) (per curiam) (relying on
Crouch to reinstate a license revocation where the driver
argued that the evidence contained in the DUI Information
Sheet was inadmissible hearsay).
It follows that testimony is not necessary for the DMV
to meet its burden of proof. Documentary evidence can form
the basis for a revocation decision if it is supported by
substantial evidence.
12
Based on the foregoing, we find that the OAH was statutorily obligated to
receive the DMV’s file, including Officer Thompson’s DUI information sheet, into
evidence. The circuit court’s ruling to the contrary was clearly erroneous.
B. Securing Witness Attendance at an OAH Hearing
The DMV’s second assignment of error is that the circuit court erred by
finding that the DMV was required to secure the arresting officer’s attendance at the OAH
hearing. The circuit court’s order provides the following analysis on this issue:
Pursuant to W.Va. Code § 17C-5C-4a (2012), the OAH
has legislative and procedural rule-making authority, and W.
Va. Code R. § 105-1-11, et seq. and W. Va. Code R. § 105-1-
1413, et seq. concerns the subpoena process and the failure to
appear of witnesses. W. Va. Code R. § 105-1-1414.3 provides,
“The OAH may enter an order reversing the Commissioner’s
Order of Revocation if the Commissioner, his counsel, or his
designee does not abide by the requirements set forth in
subdivision 9.5.C. of these rules.” W. Va. Code R. § 105-1-
9.5(c) provides, “If a written motion for an emergency
continuance with evidence of good cause is not received by the
OAH in a timely manner, the OAH may deem it a failure of the
party requesting the continuance to appear at the hearing. The
OAH may deem it a failure of the party requesting the
continuance to appear at the hearing even if an order continuing
the hearing was issued provided that such order was based
solely on the oral representations of the party making the
motion.” When read together, the Court finds that the OAH
contemplated the reversal of the Commissioner’s revocation
when the DMV failed to produce its necessary witness, the
arresting officer, at OAH hearings.
(Emphasis added).
Upon review, we disagree with the circuit court’s conclusion. Our statutory
law addressing OAH hearings provides that the party desiring testimony from a particular
13
witness, including an arresting officer, has the responsibility of securing that individual’s
testimony. Specifically, W. Va. Code § 17C-5A-2(c)(3) (2015) provides that the OAH
may issue subpoenas commanding witnesses to appear at the request of a party or the
party’s legal representative; that the party requesting the subpoena “shall be responsible
for service of the subpoena upon the appropriate individual;” and that “[i]f a person does
not obey the subpoena or fails to appear, the party who issued the subpoena to the person
may petition the circuit court wherein the action lies for enforcement of the subpoena.”
(Emphasis added). 8
8
West Virginia Code § 17C-5A-2(c)(3) provides, in full:
The Office of Administrative Hearings may issue
subpoenas commanding the appearance of witnesses and
subpoenas duces tecum commanding the submission of
documents, items or other things. Subpoenas duces tecum shall
be returnable on the date of the next scheduled hearing unless
otherwise specified. The Office of Administrative Hearings
shall issue subpoenas and subpoenas duces tecum at the request
of a party or the party’s legal representative. The party
requesting the subpoena shall be responsible for service of the
subpoena upon the appropriate individual. Every subpoena or
subpoena duces tecum shall be served at least five days before
the return date thereof, either by personal service made by a
person over eighteen years of age or by registered or certified
mail, return receipt requested, and received by the party
responsible for serving the subpoena or subpoena duces tecum:
Provided, That the Division of Motor Vehicles may serve
subpoenas to law-enforcement officers through electronic mail
to the department of his or her employer. If a person does not
obey the subpoena or fails to appear, the party who issued the
subpoena to the person may petition the circuit court wherein
the action lies for enforcement of the subpoena.
14
The clear, unambiguous language of this statute provides that “the party”
seeking to compel a witness to appear at an OAH hearing has the responsibility to request
the subpoena, and the responsibility to petition the circuit court for enforcement of the
subpoena when the witness fails to appear. Thus, we find no support for the circuit court’s
conclusion that the DMV was required to secure Officer Thompson at the OAH hearing.
In the present case, both the DMV and Mr. Fouch requested that subpoenas be issued to
compel Officer Thompson to appear at the OAH hearing. The OAH issued these
subpoenas, but Officer Thompson failed to appear. Neither the DMV, nor Mr. Fouch,
petitioned the circuit court to enforce their subpoenas. Based on the foregoing, we find
that the circuit court erred by ruling that the DMV was required to secure Officer
Thompson’s attendance at the OAH hearing.
C. Remand
Having concluded that the circuit court’s analysis was erroneous, we find it
necessary to remand this matter to the circuit court for further proceedings. On remand,
the circuit court must consider Mr. Fouch’s appeal of the OAH’s order in light of our ruling
herein that: 1) the OAH did not err by admitting the DMV’s records into evidence; and 2)
15
the DMV did not have the burden of securing Officer Thompson’s attendance at the OAH
hearing. 9
While we find that the DMV’s records, including the DUI information sheet,
were properly admitted and considered by the OAH, we note that “the fact that a document
is deemed admissible under the statute does not preclude the contents of the document from
being challenged during the hearing. Rather, the admission of such a document into
evidence merely creates a rebuttable presumption as to its accuracy.” Crouch, 219 W. Va.
at 76, n.12, 631 S.E.2d at 634, n.12.
9
On remand, the circuit court must conduct its inquiry pursuant to the statutory
standards contained in W. Va. Code § 29A-5-4 (1998). This Court has outlined those
standards as follows:
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.”
Syl. Pt. 2, 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).
16
IV. CONCLUSION
We reverse the circuit court’s March 6, 2019, order, and remand this matter
to the circuit court for further proceedings consistent with our ruling herein.
Reversed and Remanded with Directions.
17