STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Everett Frazier,
Commissioner of the West Virginia Division of Motor Vehicles,
Respondent Below, Petitioner FILED
March 23, 2021
vs.) No. 20-0034 (Kanawha County 17-AA-70) EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Tina Bowman,
Petitioner Below, Respondent
MEMORANDUM DECISION
Petitioner Everett Frazier, Commissioner of the West Virginia Division of Motor Vehicles
(“DMV”), by counsel Elaine K. Skorich, appeals the December 16, 2019, order of the Circuit Court
of Kanawha County, affirming the order of the Office of Administrative Hearings (“OAH”)
reinstating the driving privileges of respondent Tina Bowman. Respondent, by counsel Matthew
M. Hatfield, filed a summary response in support of the circuit court’s order. Petitioner filed a
reply.
The Court has considered petitioner’s brief, respondent’s summary response, and the
record on appeal. The facts and legal arguments are adequately presented, and the decisional
process would not be significantly aided by oral argument. This case satisfies the “limited
circumstances” requirement of Rule 21(d) of the West Virginia Rules of Appellate Procedure and
is appropriate for a memorandum decision rather than an opinion. For the reasons expressed below,
the decision of the circuit court is reversed, and this case is remanded to the circuit court for entry
of an order consistent with this decision.
Respondent was arrested for driving under the influence of controlled substances (“DUI”)
on May 17, 2011. 1 During the course of his investigation of the May 17, 2011, offense,
investigating officer Michael Vance, a West Virginia State Trooper, requested that respondent
submit to a secondary chemical test of blood. 2 Respondent acquiesced to the test and her blood
1
Inasmuch as we are reversing and remanding this case to the circuit court for further
proceedings on grounds that do not bear on the circumstances surrounding respondent’s arrest,
those circumstances are not addressed in detail herein.
2
Trooper Vance has since retired from the West Virginia State Police.
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sample was obtained at Boone Memorial Hospital. 3 Trooper Vance took custody of the blood
sample and transmitted the same to the West Virginia State Police Laboratory for testing.
However, the blood sample was never tested.
Following her arrest, the DMV sent respondent an order dated June 15, 2011, which
revoked her driver’s license. Respondent appealed the revocation and, on June 20, 2011, submitted
a written objection and hearing request form to the OAH on which she checked a box to indicate
that she wished “to challenge the results of the secondary chemical test of the blood, breath or
urine.” Further, respondent directed a letter to the OAH, attaching the results of a urine toxicology
screen administered to respondent on May 17, 2011, and advised that respondent wished to cross
examine the individual(s) who administered any applicable urine or secondary chemical tests to
respondent.
An administrative hearing was conducted before the OAH on September 22, 2011. Shortly
thereafter, proposed findings of fact and conclusions of law were submitted by the State to the
OAH. In a November 10, 2011, letter to the OAH, respondent noted her objections to the proposed
findings and again argued that the order of revocation should be reversed. On March 22, 2012, the
OAH entered its final order affirming the revocation of respondent’s license. Specifically, the
OAH found that there was “sufficient evidence” presented to show that respondent drove a motor
vehicle in this State while under the influence of alcohol or drugs on May 17, 2011.
Thereafter, respondent filed an administrative appeal of the OAH’s order in the Circuit
Court of Boone County. Ultimately, the matter was remanded to the OAH as the transcript from
respondent’s September 22, 2011, hearing before the OAH was “substantially unintelligible.” A
second hearing was conducted before the OAH on May 23, 2017. 4 In its final order, issued on
August 3, 2017, the OAH reversed the order of revocation and concluded that the “investigating
officer’s failure to test [respondent’s] blood or to make blood evidence available to [respondent]
for further testing” was a denial of respondent’s statutory due process rights under West Virginia
Code § 17C-5-9 (2013). 5
3
In addition to providing a blood sample for a secondary chemical test of her blood,
respondent provided a sample for a urine test. The urine test was not requested by Trooper Vance.
4
The second hearing before the OAH, initially scheduled for January 30, 2015, was
continued multiple times.
5
West Virginia Code § 17C-5-9 provides:
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
(Continued . . .)
2
The DMV appealed the OAH’s order to the Circuit Court of Kanawha County. By order
entered on December 16, 2019, the circuit court affirmed the OAH’s order. The court held that
respondent’s agreement to submit to a blood test at the request of the investigating officer afforded
her the same due process rights had she demanded a blood test. The court reasoned that
respondent’s due process rights were not “contingent upon a race between the driver and the police
officer to first request” a blood test and/or an analysis thereof. The circuit court specifically
referenced this Court’s decisions in Reed v. Hall, 235 W. Va. 322, 773 S.E.2d 666 (2015), and
Reed v. Divita, No. 14-1018, 2015 WL 5514209 (W. Va. Sept. 15, 2018) (memorandum decision),
and found that petitioner’s “violation of [r]espondent’s statutory and due process rights under West
Virginia Code § 17C-5-9 [is] dispositive.” It is from the circuit court’s December 16, 2019, order
that petitioner now appeals.
“‘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, 223 W. Va. 601, 760 S.E.2d 415 (2014).
Syl. Pt. 1, Frazier v. Bragg, __ W. Va. __, 851 S.E.2d 486 (2020). Guided by this standard, we
review petitioner’s argument.
In its single assignment of error on appeal, petitioner asserts that the circuit court erred in
upholding the rescission of respondent’s license revocation simply because the officer-requested
blood sample was not analyzed. Petitioner contends that because respondent did not demand or
request a blood draw on the date of her arrest, West Virginia Code § 17C-5-9 is not applicable to
this case. We agree.
In Bragg, this Court held that because a “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, in pertinent part, that
[o]nly 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
be made. The analysis disclosed by such chemical test shall be made available to
such arrested person forthwith upon demand.
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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.
This Court has long held that “[w]hen 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. 5, State v. Gen. Daniel Morgan Post
No. 548, V.F.W., 144 W. Va. 137, 107 S.E.2d 353 (1959). As to West Virginia Code § 17C-5-6,
the Bragg court found that
[t]he 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.
Bragg, __ W. Va. at __, 851 S.E.2d at 494. Simply “marking the box on the hearing request form”
that the driver “wish[ed] to challenge the results of the secondary chemical test of the blood, breath
or urine” is not enough. Id.
In the instant case, there is no dispute that the blood test was performed at the request of
the investigating officer. At the second hearing before the OAH, respondent acknowledged that
she voluntarily consented to give a blood sample for testing. In its December 16, 2019, order, the
circuit court made particular findings that Trooper Vance requested that respondent submit to a
blood test and respondent agreed. There is no indication in the record, aside from respondent’s
simple check on a box on the hearing request form and her counsel’s contemporaneous June 20,
2011 letter to the OAH, that she wished to challenge the results of the blood test at the
administrative hearing. Respondent has not alleged that she requested any information concerning
the blood sample either for the purpose of having the sample independently tested or for use
otherwise at the administrative hearing. Accordingly, we find that West Virginia Code § 17C-5-6,
as opposed to West Virginia Code § 17C-5-9, applies to the instant case. As West Virginia Code
§ 17C-5-6 applies to the facts of the underlying case, we find that the OAH and the circuit court’s
reliance on West Virginia Code § 17C-5-9 and the case law construing it (i.e., Hall and Divita)
was misplaced and clearly wrong. 6
6
As this Court noted in Bragg, the Hall and Divita cases both “involved drivers who were
arrested for DUI and . . . demanded that a sample of blood be taken pursuant to West Virginia
Code § 17C-5-9 (2013).” Bragg, __ W.Va. at ___ n.2, 851 S.E.2d at 490 n.2. In both Hall and
Divita, this Court upheld the reversal of the drivers’ license revocation orders because their blood
samples were taken but not tested. However, in the instant case, unlike Hall and Divita, respondent
did not demand a blood test be taken, but rather agreed to submit to a blood test requested by the
investigating officer. Accordingly, respondent’s case must be decided under West Virginia Code
§ 17C-5-6 and not West Virginia Code § 17C-5-9.
4
Having determined that the circuit court erred in affirming the OAH’s order reversing the
revocation of respondent’s license based only on the fact that respondent’s blood sample was not
tested, 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 the preponderance of the
evidence standard to warrant the administrative revocation of respondent’s driver’s license.
For the foregoing reasons, the circuit court’s December 16, 2019, order is hereby reversed,
and the case is remanded for determination of whether there was sufficient proof to warrant the
administrative revocation of respondent’s license. To facilitate the commencement and conclusion
of the remand proceedings, we direct the Clerk of this Court to issue the mandate of this Court
contemporaneously with the issuance of this decision.
Reversed and remanded with directions.
ISSUED: March 23, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
DISSENTING:
Justice William R. Wooton
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