Everett Frazier v. Gary L. Bragg

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2020 Term FILED
_______________ November 16, 2020
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
No. 19-0519 SUPREME COURT OF APPEALS
OF WEST VIRGINIA
_______________

EVERETT FRAZIER, COMMISSIONER OF
THE WEST VIRGINIA DIVISION
OF MOTOR VEHICLES,
Petitioner

GARY L. BRAGG,
Respondent

________________________________________________________

Appeal from the Circuit Court of Kanawha County
The Honorable Louis H. Bloom, Judge
Civil Action No. 19-AA-1

REVERSED AND REMANDED WITH DIRECTIONS

________________________________________________________

Submitted: October 13, 2020
Filed: November 16, 2020

Patrick Morrissey, Esq. J. Patrick L. Stephens, Esq.
West Virginia Attorney General Underwood Law Office
Janet E. James, Esq. Huntington, West Virginia
Assistant Attorney General Counsel for Respondent
Counsel for Petitioner

JUSTICE HUTCHISON 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).” Syl. Pt. 1, Dale v.

Odum, 233 W.Va. 601, 760 S.E.2d 415 (2014).

2. “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

Dept. v. State ex rel. State of W.Va. Human Rights Comm’n, 172 W.Va. 627, 309 S.E.2d

342 (1983).

i
3. “‘When a statute is clear and unambiguous and the legislative intent

is plain, the statute should not be interpreted by the courts, and in such case it is the duty

of the courts not to construe but to apply the statute.’ Syllabus Point 5, State v. General

Daniel Morgan Post No. 548, V.F.W., 144 W. Va. 137, 107 S.E.2d 353 (1959).” Syl. Pt.

2, Reed v. Haynes, 238 W. Va. 363, 795 S.E.2d 518 (2016).

4. Pursuant to West Virginia Code § 17C-5-6 (2013), when a doctor of

medicine or osteopathy, or registered nurse, or trained medical technician at the place of

his or her employment, acting at the request and direction of a law-enforcement officer,

withdraws blood to determine the alcohol concentration in the blood, or the concentration

in the blood of a controlled substance, drug, or any combination thereof, the person tested

may, at his or her own expense, have a doctor of medicine or osteopathy, or registered

nurse, or trained medical technician at the place of his or her employment, of his or her

own choosing, administer a chemical test in addition to the test administered at the direction

of the law-enforcement officer. Upon the request of the person who is tested, full

information concerning the test taken at the direction of the law-enforcement officer shall

be made available to him or her.

5. “There are no provisions in either W.Va. Code, 17C–5–1, et seq., or

W.Va. Code, 17C–5A–1, et seq., that require the administration of a chemical sobriety test

in order to prove that a motorist was driving under the influence of alcohol, controlled

ii
substances or drugs for purposes of making an administrative revocation of his or her

driver’s license.” Syl. Pt. 4, Coll v. Cline, 202 W. Va. 559, 505 S.E.2d 662 (1998).

6. “‘Where there is evidence reflecting that a driver was operating a

motor vehicle upon a public street or highway, exhibited symptoms of intoxication, and

had consumed alcoholic beverages, this is sufficient proof under a preponderance of the

evidence standard to warrant the administrative revocation of his driver’s license for

driving under the influence of alcohol.’ Syl. Pt. 2, Albrecht v. State, 173 W.Va. 268, 314

S.E.2d 859 (1984).” Syl. Pt. 5, Reed v. Hill, 235 W. Va. 1, 770 S.E.2d 501(2015).

iii
HUTCHISON, Justice:

Petitioner Everett Frazier, Commissioner of the West Virginia Division of

Motor Vehicles (“the Commissioner” or “DMV”), seeks the reinstatement of an order

revoking the driving privileges of Respondent Gary L. Bragg for driving a motor vehicle

while under the influence of alcohol, controlled substances and/or drugs (“DUI”). By order

entered on May 3, 2019, the Circuit Court of Kanawha County, West Virginia, affirmed

the decision of the Office of Administrative Hearings (“OAH”) reversing the revocation

order on the grounds that the blood sample that Mr. Bragg agreed to give at the request of

law enforcement officers was never tested and cannot be located, which deprived Mr.

Bragg of the ability to present potentially exculpatory evidence.

Upon careful consideration of the parties’ briefs and oral arguments, the

appendix record, and the pertinent legal authority, and for the reasons set forth below, we

reverse the circuit court’s order and remand this matter for further proceedings.

I. Factual and Procedural Background

On January 16, 2015, while performing routine road patrol in Williamson,

Mingo County, West Virginia, Senior Trooper M.J. Miller and Senior Trooper D.M.

Williamson of the West Virginia State Police observed a 2006 Chevrolet Impala traveling

on First Avenue. The officers observed that the vehicle was weaving, that the driver’s

1
sideview mirror was defective in that it did not have glass, and that the driver was not

wearing his seatbelt. The officers watched the vehicle turn onto Second Avenue without

first signaling a right turn. The officers conducted a traffic stop of the vehicle.

Upon approaching the vehicle, Trooper Miller observed an open container of

alcohol in the passenger-side floorboard. Trooper Miller made contact with the driver,

identified as Mr. Bragg, and, according to the D.U.I. Information Sheet, observed that he

had watery eyes, slurred speech, and the odor of an alcoholic beverage on his breath. At

Trooper Miller’s request, Mr. Bragg exited his vehicle. Trooper Miller observed Mr. Bragg

to be unsteady while exiting, walking to the roadside, and standing. According to Trooper

Miller, Mr. Bragg admitted that he had been drinking and had taken Suboxone prior to

driving.

Trooper Miller explained and administered the horizontal gaze nystagmus

(“HGN”) test to Mr. Bragg. Prior to administering that test, Trooper Miller conducted a

medical assessment of Mr. Bragg’s eyes, which indicated equal pupils, equal tracking, and

no resting nystagmus. Mr. Bragg had vertical nystagmus, which was indicative of a high

level of impairment. During the administration of the HGN test, Mr. Bragg’s eyes

displayed a lack of smooth pursuit, distinct and sustained nystagmus at maximum

deviation, and onset of nystagmus prior to forty-five degrees in both eyes. Mr. Bragg

refused to take the walk-and-turn and one-leg-stand tests “due to a medical condition with

2
his feet.” The D.U.I. Information Sheet also reflected that Mr. Bragg “refused” the

preliminary breath test.

Trooper Hall placed Mr. Bragg under arrest for DUI. Thereafter, the officers

asked Mr. Bragg if he would agree to submit to a blood draw. Mr. Bragg agreed, and

Trooper Williamson transported him to Williamson Memorial Hospital where a blood

sample was taken by hospital personnel. Trooper Williamson then took control of the

blood sample, which according to the West Virginia State Police Complaint Report, “was

entered into temporary evidence.” The D.U.I. Information Sheet indicated that analysis of

the blood sample would be conducted by the West Virginia State Police Laboratory.

Mr. Bragg was issued an order of revocation for DUI on March 17, 2015,

revoking his driving privileges for a period of one year. He timely requested an

administrative hearing before the Office of Administrative Hearings (OAH) by completing

the Written Objection and Hearing Request Form. Mr. Bragg marked the box on the form,

“I wish to challenge the results of the secondary chemical test of the blood, breath or urine.”

An administrative hearing was conducted before the OAH on February 3,

2017, at which Mr. Bragg appeared, self represented. Mr. Bragg denied that he had been

drinking or that he admitted to Trooper Miller that he had been drinking. He testified that

there was a passenger in the vehicle with him who was drinking from an open container of

3
beer at the time of the stop. Mr. Bragg admitted telling the officers that he had taken four

milligrams of Suboxone, his prescribed dosage, approximately two hours before the stop.

He denied that he was not wearing his seatbelt and that he failed to use his turn signal. Mr.

Bragg could not recall whether his side mirror was defective. With regard to his

performance on the HGN test, Mr. Bragg testified that the officer “put a pen in front of my

eyes. I explained to him, ‘Sir, I’m blind in this left eye.’” According to Mr. Bragg, that is

why his left eye appeared “watery.” Further, although the D.U.I. Information Sheet noted

that Mr. Bragg “refused” the preliminary breath test, Mr. Bragg testified that he agreed to

the test, that Trooper Miller twice attempted to administer the test using two separate

devices, but that neither device worked. It was then that the officers asked Mr. Bragg if he

would submit to a blood draw, to which Mr. Bragg agreed.

The D.U.I. Information Sheet was admitted into evidence and Trooper Miller

testified largely consistent with the information contained therein. Though not noted on

the D.U.I. Information Sheet, Trooper Miller recalled, consistent with Mr. Bragg’s

testimony, that there was a passenger in Mr. Bragg’s vehicle at the time of the stop.

Counsel for the Commissioner did not ask Trooper Miller to confirm or refute Mr. Bragg’s

testimony that he agreed to the preliminary breath test and that the devices were defective,

or to explain, in light of this testimony, why he noted on the D.U.I. Information Sheet that

Mr. Bragg “refused” this test. With regard to the HGN test, the Commissioner similarly

did not attempt to refute Mr. Bragg’s testimony that he was blind in his left eye and did not

4
ask Trooper Miller to account for this fact in the HGN test results noted on the D.U.I.

Information Sheet, which made no reference to Mr. Bragg being blind in one eye.

Finally, the evidence showed that the blood sample that was taken from Mr.

Bragg following his arrest was never tested. According to Trooper Miller, Trooper

Williamson, who transported Mr. Bragg to the hospital for the blood draw, obtained

custody and control of the blood sample but the West Virginia State Police Laboratory had

no record of it ever being received. By the time the administrative hearing was conducted,

Trooper Williamson was no longer employed with the State Police and did not testify at

the hearing. Trooper Miller did not know whether the blood sample was ever sent to the

State Police Lab or, if it was sent, whether it was properly logged in. Counsel for the

Commissioner represented to the OAH that the blood sample was no longer in the custody

of the State Police. The whereabouts of the blood sample was unknown.

On November 26, 2018, the OAH entered a Corrected Final Order in which

it determined that there was evidence of the use of alcohol, drugs, controlled substances,

or any combination, and that the officers lawfully arrested Mr. Bragg for DUI. However,

focusing exclusively on the fact that Mr. Bragg’s blood sample was taken but never tested,

the OAH reversed the order of revocation. Relying on West Virginia Code § 17C-5-9

5
(2013), which provides that a driver arrested for DUI has the right to demand a blood or

breath test, 1 the OAH found that, based upon our cases construing this statute,

individuals who voluntarily submit to a blood sample at the
request of the Investigating Officer should be afforded the
[s]ame due process protections as those who demand a blood
test. The Investigating Officer’s failure to test blood or to make
blood evidence available to [Mr. Bragg] for further testing
denied Mr. Bragg[] [his] statutory due process rights under W.
Va. Code §17C-5-9 and is grounds for reversal of the
[Commissioner’s] Order of Revocation[.] 2

West Virginia Code § 17C-5-9 (2013) provides:
1

Any person lawfully arrested for driving a motor
vehicle in this state while under the influence of alcohol,
controlled substances or drugs shall have the right to demand
that a sample or specimen of his or her blood or breath to
determine the alcohol concentration of his or her blood be
taken within two hours from and after the time of arrest and a
sample or specimen of his or her blood or breath to determine
the controlled substance or drug content of his or her blood, be
taken within four hours from and after the time of arrest, and
that a chemical test thereof be made. The analysis disclosed by
such chemical test shall be made available to such arrested
person forthwith upon demand.

The OAH specifically referenced Reed v. Hall, 235 W. Va. 322, 773 S.E.2d 666
2

(2015), and Reed v. Divita, No. 14-1018 (W. Va. Sept. 15, 2018) (memorandum decision),
both of which involved drivers who were arrested for DUI and who, unlike Mr. Bragg,
demanded that a sample of blood be taken pursuant to West Virginia Code § 17C-5-9
(2013). In both cases, this Court upheld the reversal of the drivers’ respective revocation
orders because their blood samples were taken but never tested. We acknowledge the
similarities that these cases have with Mr. Bragg’s case, but decline, in the context of the
present appeal, to address the Commissioner’s argument that they were incorrectly decided
because they were decided under West Virginia Code § 17C-5-9 rather than West Virginia
Code § 17C-5-6 (2013), which statute we address infra.

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(Footnote added). The OAH thus concluded that Mr. Bragg “did not commit an offense

described in West Virginia Code §17C-5-2, in that the [Commissioner] did not prove by a

preponderance of the evidence that [Mr. Bragg] drove a motor vehicle in this State while

under the influence of alcohol, controlled substances and/or drugs on [January 16,] 2015.”

The order of the OAH was approved by Final Order of Chief Hearing Examiner entered on

December 4, 2018.

The Commissioner appealed the decision of the OAH to the Circuit Court of

Kanawha County. Also relying on West Virginia Code § 17C-5-9, the circuit court found

that a driver’s statutory and due process rights under this statute are not contingent upon

who requests the blood test and that Mr. Bragg’s

failure to request a blood test is completely rational in light of
being told by at least one – and possibly two – West Virginia
State Troopers that a blood draw would be performed and his
blood sample tested for alcohol. This test never occurred, nor
was the sample preserved to be made available to [Mr. Bragg]
for independent testing.

The circuit court affirmed the OAH’s decision to reverse the revocation of Mr. Bragg’s

driving privileges. It is from the circuit court’s May 3, 2019, order that the Commissioner

now appeals.

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II. Standard of Review

This Court reviews a circuit court’s order in an administrative appeal under

the following standard:

“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).

Syl. Pt. 1, Dale v. Odum, 233 W.Va. 601, 760 S.E.2d 415 (2014).

Further,

[u]pon 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.”

8
Syl. Pt. 2, Shepherdstown Volunteer Fire Dept. v. State ex rel. State of W.Va. Human

Rights Comm’n, 172 W.Va. 627, 309 S.E.2d 342 (1983). With these standards in mind,

we address the parties’ arguments on appeal.

III. Discussion

At the heart of this appeal is the conclusion made below that Mr. Bragg’s

driving privileges were improperly revoked because the blood sample he agreed to give at

the request of the investigating officers was never tested and, as was disclosed at the

administrative hearing, forever lost. The OAH and the circuit court concluded that Mr.

Bragg was thus deprived of the ability to exercise his right to have the sample

independently tested. The Commissioner argues that it was error to conclude that Mr.

Bragg’s statutory and due process rights were violated under the provisions of West

Virginia Code § 17C-5-9 because this statute applies only where a “person lawfully

arrested for [DUI] . . . demand[s] that a sample or specimen of his or her blood or breath .

. . be taken . . . and that a chemical test thereof be made.” Id. in relevant part. According

to the Commissioner, the circuit court erred in concluding that, under this statute and the

cases construing it, one who acquiesces to a blood test has the same rights as one who

requests the test under West Virginia Code § 17C-5-9 because there is no evidence either

that Mr. Bragg would have requested a blood test if the officer had not asked him to submit

to one, that the officers told Mr. Bragg that his blood sample would be tested, or that Mr.

Bragg wished to have the sample independently tested. Finally, the Commissioner argues

that there was sufficient evidence presented at the administrative hearing proving that Mr.

9
Bragg was driving while under the influence of alcohol, controlled substances and/or drugs

at the time of the stop and that, as a result, his driving privileges were properly revoked.

For his part, Mr. Bragg argues that it was not error to reverse the order

revoking his driving privileges because the OAH and the circuit court correctly found that

his due process rights were violated by the loss or destruction of the blood sample and/or

blood test results. Mr. Bragg also argues that he agreed to submit to the blood test because
3

he knew that it would exonerate him and that, contrary to the Commissioner’s claim that

there was “undisputed” evidence demonstrating that he was driving while under the

influence of alcohol, controlled substances and/or drugs, the evidence showed that his eye

appeared “watery” and that he failed the HGN test because he is blind in one eye, that he

denied that he had been drinking, and that the D.U.I. Information Sheet falsely stated that

he “refused” the preliminary breath test. The implication of Mr. Bragg’s argument is that

the information included on the D.U.I. Information Sheet was not credible.

To the extent the Commissioner argues that West Virginia Code § 17C-5-9

does not apply to the facts of this case because Mr. Bragg did not demand that a sample of

his blood be taken, we agree. Rather, after he agreed and attempted to take a preliminary

It is undisputed that Mr. Bragg’s blood sample was never tested.
3

10
breath test on two separate devices that were broken and were apparently unable to register

his blood alcohol content, it is undisputed that the investigating officers asked Mr. Bragg

if he would submit to a blood draw. Mr. Bragg agreed, and Trooper Williamson transported

him to Williamson Memorial Hospital where a blood sample was taken by hospital

personnel. Because the blood draw was performed at the request of law enforcement

officers, the provisions of West Virginia Code § 17C-5-6 (2013), rather than West Virginia

Code § 17C-5-9, apply. West Virginia Code § 17C-5-6 provides:

Only a doctor of medicine or osteopathy, or registered nurse,
or trained medical technician at the place of his or her
employment, acting at the request and direction of the law-
enforcement officer, may withdraw blood to determine the
alcohol concentration in the blood, or the concentration in the
blood of a controlled substance, drug, or any combination
thereof. . . . The person tested may, at his or her own expense,
have a doctor of medicine or osteopathy, or registered nurse,
or trained medical technician at the place of his or her
employment, of his or her own choosing, administer a
chemical test in addition to the test administered at the
direction of the law-enforcement officer. Upon the request of
the person who is tested, full information concerning the test
taken at the direction of the law-enforcement officer shall be
made available to him or her.
4
Id. in relevant part (emphasis added).

4
In its entirety, West Virginia Code § 17C-5-6 provides:

case, the OAH and circuit court’s reliance on West Virginia Code § 17C-5-9 and the

caselaw construing it, was misplaced and, indeed, unnecessarily complicated the question

of whether the officers’ failure to test Mr. Bragg’s blood sample or make it available to

him to conduct additional testing violated Mr. Bragg’s rights and warranted reversal of the

revocation order. In In re Burks, 206 W. Va. 429, 525 S.E.2d 310 (1999), we

acknowledged that our DUI statutes are “somewhat complex and overlapping – with

thereof. These limitations shall not apply to the taking of a
breath test. In withdrawing blood to determine the alcohol
concentration in the blood, or the presence in the blood of a
controlled substance, drug, or any combination thereof, only a
previously unused and sterile needle and sterile vessel may be
utilized and the withdrawal shall otherwise be in strict accord
with accepted medical practices. A nonalcoholic antiseptic
shall be used for cleansing the skin prior to venapuncture. The
person tested may, at his or her own expense, have a doctor of
medicine or osteopathy, or registered nurse, or trained medical
technician at the place of his or her employment, of his or her
own choosing, administer a chemical test in addition to the test
administered at the direction of the law-enforcement officer.
Upon the request of the person who is tested, full information
concerning the test taken at the direction of the law-
enforcement officer shall be made available to him or her. No
person who administers any such test upon the request of a law-
enforcement officer as herein defined, no hospital in or with
which such person is employed or is otherwise associated or in
which such test is administered, and no other person, firm or
corporation by whom or with which such person is employed
or is in any way associated, shall be in any way criminally
liable for the administration of such test, or civilly liable in
damages to the person tested unless for gross negligence or
willful or wanton injury.

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several statutes frequently addressing the same issue[,]” pointing out that such is the case

in the “‘blood-test request’ provisions of West Virginia Code, 17C-5-6 [1981] and -9

[1983].” Id. at 314, 525 S.E.2d at 433. In Burks, after the driver failed field sobriety tests

and registered a blood alcohol content of .14 on a chemical breath test, he requested a blood

test. He was transported to a local hospital where a blood test was performed. After the

driver received notice that his driving privileges were revoked, he made a written request

of the arresting officer for the results of and other information about the blood test. The

officer advised the driver’s counsel that he did not have the results and information

requested, but that the information could be obtained from the hospital.

During the administrative hearing in Burks, it was the Commissioner’s

position that, because the blood test was done at the driver’s request pursuant to West

Virginia Code § 17C-5-9, the arresting officer did not have a duty to obtain the results. 206

W. Va. at 431, 525 S.E.2d at 312. The revocation was upheld but, on appeal, the circuit

court reversed because, inter alia, the arresting officer’s failure “to supply the results of the

blood test is a substantial denial of due process and fair and full hearing on the issues[.]”

Id.

On appeal to this Court in Burks, we considered whether the officer’s failure

to provide the driver with the results and other requested information about the blood test

was grounds for reversing the license revocation. First, the Court discussed the role of an

13
arresting officer in the testing of blood when a driver arrested for DUI requests a blood

test. Id. at 433, 525 S.E.2d at 314. We considered West Virginia Code § 17C-5-6, the so-

called officer’s “designated” test, and § 17C-5-9, the “driver-demanded” test together and

in light of our State’s overall DUI scheme, and declared that

a DUI-arrested driver is deprived of a significant right if he or
she requests a blood test, and is given only an opportunity to
have a blood test that does not meet statutory evidentiary
standards. There is little point in having the right to demand a
5

potentially exculpatory blood test, if the test that is given is not
up to the evidentiary standard for blood tests set forth in the
statutes.

206 W. Va. at 433, 525 S.E.2d at 314 (footnote added). We thus held in syllabus point

two of Burks that

[a] person who is arrested for driving under the influence who
requests and is entitled to a blood test, pursuant to W. Va. Code
17C-5-9 [1983], must be given the opportunity, with the
assistance and if necessary the direction of the arresting law
enforcement entity, to have a blood test that insofar as possible
meets the evidentiary standards of 17C-5-6 [1981].

Specifically, West Virginia Code § 17C-5-6 provides that “[o]nly a doctor of
5

medicine or osteopathy, or registered nurse, or trained medial technician at the place of his
or her employment” may withdraw blood and may do so by utilizing “only a previously
unused and sterile needle and sterile vessel” and “the withdrawal shall otherwise be in strict
accord with accepted medical practices.” “A nonalcoholic antiseptic shall be used for
cleansing the skin prior to venapuncture.” Id. in relevant part.

14
Id. 6 Further, the arresting officer’s duty with respect to the results of a blood test under

West Virginia Code § 17C-5-9 was found to be as follows:

The requirement that a driver arrested for DUI must be given a
blood test on request does not include a requirement that the
arresting officer obtain and furnish the results of that requested
blood test.

Id. at 430, 525 S.E.2d at 311, syl. pt. 3. Relevant to the present appeal was our observation

in Burks that “[p]lacing such a requirement on the arresting officer can only be fairly read

into the statutory scheme, if the blood test is the officer’s ‘designated’ test – and not a test

that is requested by the driver. W.Va. Code, 17C-5-6 [1981].” Id. at 433, 525 S.E.2d at

314. 7 We concluded in Burks that the driver, who was represented by counsel, could have

subpoenaed the blood test results and information about the methodology used in the test

prior to the administrative hearing given that he knew that the officer would not have them.

Id. We further concluded that the driver failed “to show at the DMV hearing that he had

requested the results or other information about the test from the hospital, or that the

hospital had refused to provide the results or information, or that the results or information

would have been favorable to [him].” Id. at 433-34, 525 S.E.2d at 314-15. As a result, we

held that the DMV was not barred from revoking the driver’s license because of the failure

Both West Virginia Code §§ 17C-5-6 and -9 were amended in 2013. The
6

amendments do not affect our discussion of Burks relative to the instant matter.

The Court also cautioned that “the arresting officer cannot pose an impediment to
7

the driver’s obtaining the results of and information about the test.” Id.

15
of the law enforcement officer to obtain and give the results of the blood test to the driver.

See Id.

In view of our dicta in Burks concerning a law enforcement officer’s duty to

obtain and furnish blood test results where a blood draw is performed upon a driver at the

officer’s request, we observe that the relevant language of West Virginia Code § 17C-5-6

states, “Upon the request of the person who is tested, full information concerning the test

taken at the direction of the law-enforcement officer shall be made available to him or her.”

“When a statute is clear and unambiguous and the legislative intent is plain,

the statute should not be interpreted by the courts, and in such case it is the duty of the

courts not to construe but to apply the statute.” Syl. Pt. 2, Reed v. Haynes, 238 W. Va. 363,

795 S.E.2d 518 (2016) (quoting Syl. Pt. 5, State v. Gen’l Daniel Morgan Post No. 548,

V.F.W., 144 W. Va. 137, 107 S.E.2d 353 (1959)). See also Syl. Pt. 2, Crouch v. W. Virginia

Div. of Motor Vehicles, 219 W. Va. 70, 631 S.E.2d 628 (2006) (“‘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.’ Syllabus point 2, State v.

Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951).”). The language of West Virginia Code §

17C-5-6 is clear and unambiguous that a law enforcement officer’s duty to make available

information about the test performed at the request of the officer (including blood test

results) does not exist absent a request for such information by the person who is tested.

16
We therefore clarify and hold that, pursuant to West Virginia Code § 17C-5-

6 (2013), when a doctor of medicine or osteopathy, or registered nurse, or trained medical

technician at the place of his or her employment, acting at the request and direction of a

law-enforcement officer, withdraws blood to determine the alcohol concentration in the

blood, or the concentration in the blood of a controlled substance, drug, or any combination

thereof, the person tested may, at his or her own expense, have a doctor of medicine or

osteopathy, or registered nurse, or trained medical technician at the place of his or her

employment, of his or her own choosing, administer a chemical test in addition to the test

administered at the direction of the law-enforcement officer. Upon the request of the

person who is tested, full information concerning the test taken at the direction of the law-

enforcement officer shall be made available to him or her.

In this case, upon receiving the order that his driving privileges had been

revoked for DUI, Mr. Bragg timely requested an administrative hearing. Aside from

marking the box on the hearing request form that he “wish[ed] to challenge the results of

the secondary chemical test of the blood, breath or urine[,]” it is undisputed that at no time

did Mr. Bragg request any information concerning the blood withdrawn at the direction of

Troopers Miller and Williamson either for the purpose of having the sample independently

tested, see W. Va. Code § 17C-5-6 (providing that “the person tested may, at his or her

own expense,” arrange that a statutorily authorized professional “of his or her own

choosing, administer a chemical test in addition to the test administered at the direction of

17
the law-enforcement officer”) or for use otherwise at the administrative hearing. The

absence of blood evidence, while acknowledged and explained at the administrative

hearing, was simply not at issue in this case. We therefore conclude that the decision of

the OAH and the circuit court to reverse the Commissioner’s revocation of Mr. Bragg’s

driving privileges solely because his blood sample was not tested or made available to Mr.

Bragg for independent testing was in error.
8

The inquiry must now turn to whether, based upon the evidence presented at

the administrative hearing, the Commissioner proved that Mr. Bragg was driving while

The manner in which we have resolved this particular case should not be construed
8

as approbation or disinterest in the failure of law enforcement to test Mr. Bragg’s blood
sample. Expeditious testing of a driver’s blood sample after it is withdrawn is clearly
contemplated by our DUI statutes. See W.Va. Code § 17C-5A-1(b) (2008) (requiring that
a law enforcement officer investigating a person for DUI shall submit a written statement
to the Commissioner within forty-eight hours of the conclusion of the investigation, which
must include “the specific offense with which the person is charged applicable, a copy of
the results of any secondary tests of blood, breath or urine”). Accord Coll v. Cline, 202
W. Va. 599, 505 S.E.2d 662 (1998). The record in this case does not suggest that law
enforcement acted in bad faith, but instead, acted negligently in either failing to store the
sample and/or follow through with testing. Neither scenario is acceptable because such
inattentiveness could potentially be viewed as undermining the integrity of the
administrative revocation procedure, the purpose of which is to protect the safety of the
innocent public who use our roads and highways. See State ex rel. Hall v. Schlaegel, 202
W. Va. 93, 97, 502 S.E.2d 190, 194 (1998) (“This objective of removing substance-affected
drivers from our roads in the interest of promoting safety and saving lives is consistent
‘with the general intent of our traffic laws to protect the innocent public.’” (citation
omitted)); State ex rel. Ruddleston v. Roberts, 175 W. Va. 161, 164, 332 S.E.2d 122, 126
(1985) (“[D]runk driving laws . . . are protective, designed to remove violat[or]s from the
public highways as quickly as possible.”).

18
under the influence of alcohol, controlled substances and/or drugs. Lest we forget, “[t]he

principal question at the [revocation] hearing shall be whether the person did drive a motor

vehicle while under the influence of alcohol, controlled substances or drugs . . . .” W. Va.

Code § 17C-5A-2(e) (2015). This Court has repeatedly stated that “‘[t]he absence of a

chemical test does not foreclose proof by other means of intoxication as a ground for

license revocation.’” Dean v. W. Virginia Div. of Motor Vehicles, 195 W. Va. 70, 72, 464

S.E.2d 589, 591 (1995) (quoting Boley v. Cline, 193 W. Va. 311, 314, 456 S.E.2d 38, 41

(1995)). As we held in syllabus point four of Coll v. Cline, 202 W. Va. 559, 505 S.E.2d

662 (1998),

[t]here are no provisions in either W.Va.Code, 17C–5–
1, et seq., or W.Va.Code, 17C–5A–1, et seq., that require the
administration of a chemical sobriety test in order to prove that
a motorist was driving under the influence of alcohol,
controlled substances or drugs for purposes of making an
administrative revocation of his or her driver’s license. 9

(Footnote added). See also Hinkle v. Bechtold, 177 W. Va. 627, 629, 355 S.E.2d 416, 418,

(1987) (finding that although breathalyzer and blood tests were administered following the

driver’s arrest, it was proper for the Commissioner not to consider the results and to rely

solely upon the arresting officer’s testimony in concluding that the State had proved by a

Syllabus point four of Coll “modernized” our previous holding in syllabus point
9

one of Albrecht v. State, 173 W. Va. 268, 314 S.E.2d 859 (1984), which held similarly. See
Coll, 202 W. Va. at 609, 505 S.E.2d at 672.

19
preponderance of the evidence that the driver had been driving under the influence of

alcohol).

Importantly, we have also held:

“Where there is evidence reflecting that a driver was
operating a motor vehicle upon a public street or highway,
exhibited symptoms of intoxication, and had consumed
alcoholic beverages, this is sufficient proof under a
preponderance of the evidence standard to warrant the
administrative revocation of his driver’s license for driving
under the influence of alcohol.” Syl. Pt.
2, Albrecht v. State, 173 W.Va. 268, 314 S.E.2d 859 (1984).

Syl. Pt. 5, Reed v. Hill, 235 W. Va. 1, 770 S.E.2d 501 (2015).

Having concluded that the OAH erred in reversing the order of revocation

based exclusively upon the fact that the blood sample withdrawn from Mr. Bragg was not

tested or made available to him for independent testing, and because the OAH failed to

otherwise evaluate the evidence of record, we remand this case for a determination of

whether there was sufficient proof under a preponderance of the evidence standard to

warrant the administrative revocation of Mr. Bragg’s driver’s license for driving under the

influence of alcohol, controlled substances and/or drugs.

20
IV. Conclusion

For the foregoing reasons, we reverse the Circuit Court of Kanawha County’s

order entered on May 3, 2019, and remand this case for further proceedings consistent with

this opinion.

Reversed and remanded, with directions.

Everett Frazier v. Gary L. Bragg

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