FILED
June 23, 2021
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Everett Frazier,
Commissioner of the West Virginia Division of Motor Vehicles,
Respondent Below, Petitioner
vs.) No. 20-0310 (Kanawha County 19-AA-99)
George Gilbert,
Petitioner Below, Respondent
MEMORANDUM DECISION
Petitioner Everett Frazier, Commissioner of the West Virginia Division of Motor Vehicles
(“DMV”), by counsel Elaine L. Skorich, appeals the April 28, 2020, order of the Circuit Court of
Kanawha County, affirming the order of the Office of Administrative Hearings (“OAH”)
reinstating the driving privileges of respondent George Gilbert. Respondent is self-represented and
filed a response and supplemental response in support of the circuit court’s order. Petitioner filed
a reply.
The Court has considered the parties’ submissions 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 February 8, 2015. 1 During the course of his investigation of the offense, investigating officer
Senior Trooper J.R. Tupper of the West Virginia State Police, requested that respondent submit to
a secondary chemical test of blood. Respondent acquiesced to the test and his blood sample was
drawn. Senior Trooper Tupper 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.
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.
1
Following his arrest, the DMV sent respondent an order dated April 22, 2015, which
revoked his driver’s license. Respondent appealed the revocation and, on May 1, 2015, submitted
a written objection and hearing request form to the OAH on which he checked a box to indicate
that he wished “to challenge the results of the secondary chemical test of the blood, breath or
urine.”
An administrative hearing was conducted before the OAH on July 28, 2016. On August 6,
2019, the OAH reversed the order of revocation and referenced West Virginia Code § 17C-5-9,
which provides that:
[a]ny 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 concluded that in the instant case, “the evidence is clear that [respondent] asked
for an independent blood test, a sample was taken, however no analysis was completed through no
fault of the [respondent].” Accordingly, the OAH found that respondent was denied his “statutory
and due process rights under West Virginia Code § 17C-5-9 which is grounds for reversal” of the
revocation of respondent’s license.
Petitioner appealed the OAH’s order to the Circuit Court of Kanawha County. By order
entered on April 28, 2020, the circuit court affirmed the OAH’s order. The court found that as to
the blood sample provided by petitioner following his arrest that the sample was provided at the
request of the officer. Specifically, the court noted that respondent “willingly complied” with the
investigating officer’s request.
Before the circuit court, petitioner argued that respondent’s statutory and due process rights
are not implicated when a blood sample is destroyed prior to testing because the officer requested
that respondent provide a blood sample for testing and respondent simply acquiesced to provide
the sample. However, the court, referencing 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), found that determination of a violation of respondent’s
statutory and due process rights was not “limited to a simple determination regarding who
requested the blood draw.” The court reasoned that the “impetus upon the driver to request a blood
draw is removed where, as in this case, the driver has been assured by the officer that a blood draw
will occur if they acquiesce.” In conclusion the court found that in accord with Hall and Divita,
respondent’s due process and statutory rights were violated regardless of whether he requested the
blood test because his “right to have his blood sample independently tested was withheld.” It is
from the circuit court’s April 28, 2020, order that petitioner now appeals.
2
In Frazier v. Fouch, 244 W. Va. 347, 853 S.E.2d 587 (2020), we reiterated the standard of
review to govern this matter.
“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).
“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).
Fouch at Syl. Pts. 1 and 2. Guided by this standard, we review petitioner’s arguments. On appeal,
petitioner advances two assignments of error. First, petitioner alleges that the circuit court erred in
finding that there was a violation of West Virginia Code § 17C-5-9 because respondent did not
request a blood test. Second, petitioner argues that the circuit court erred in excluding evidence
that showed that respondent was under the influence of controlled substances at the time of his
arrest.
As to petitioner’s first assignment of error, we agree with petitioner and find that as
respondent did not demand or request a blood draw on the date of his arrest, West Virginia Code
§ 17C-5-9 is not applicable to this case. Below, the OAH found that respondent “asked for an
independent blood” test; however, such a finding is not supported by the record, including the
transcript of the July 28, 2016, administrative hearing. The only testimony at the administrative
hearing regarding respondent’s agreement to provide a blood sample was that the sample was
provided at the request of the investigating officer. 2
In Frazier v. Bragg, 244 W. Va. 40, __, 851 S.E.2d 486, 492 (2020), 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
2
At the administrative hearing, the investigating officer was asked “did you ask
[respondent] to [provide] a blood sample?” To which the investigating officer responded, “I did,
yes.”
3
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.
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, 244 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, the sample of respondent’s blood was collected for testing at the request
of the investigating officer. There is no indication in the record, aside from respondent’s simple
check on a box on the hearing request form, that he wished to challenge the results of the blood
test at the administrative hearing. Respondent has not alleged that he 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. 3
In its second assignment of error, petitioner argues that the circuit court erred in excluding
evidence that showed that respondent was under the influence of controlled substances at the time
3
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, 244 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
of his arrest. Specifically, petitioner contends that in its final order, the circuit court acknowledged
that there was evidence of respondent’s use of controlled substances but failed to consider such
evidence by determining that the violation of respondent’s due process rights under West Virginia
Code § 17C-5-9 was dispositive. Applying the reasoning set forth above, we agree with petitioner
and find that the lack of analysis of the blood sample provided by respondent must simply be
weighed along with the other evidence in the case.
Having determined that the circuit court erred in affirming the OAH’s order reversing the
revocation of respondent’s license based on the fact that respondent’s blood sample was not tested,
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 April 28, 2020, 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: June 23, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
DISSENTING:
Wooton, Justice, dissenting:
I respectfully dissent, as I believe that Frazier v. Bragg, 244 W. Va. 40, 851 S.E.2d 486
(2020), the precedent upon which the majority relies, was wrongly decided. 4 Further, the sudden
spate of cases involving the same fact pattern as existed in Bragg – close to a dozen of them in
quick succession, and still counting ‒ leads me to conclude that the failure to process blood samples
in cases involving a charge of driving under the influence may be a systemic problem that needs
4
In Bragg, where “the blood sample [Mr. Bragg] agreed to give at the request of the
investigating officers was never tested and, as was disclosed at the administrative hearing, forever
lost[,]” the Court held that because the blood was drawn upon the request of the arresting officer,
not upon the demand of the driver, “[t]he absence of blood evidence . . . was simply not at issue in
this case.” Id. at __, 851 S.E.2d at 494.
5
to be addressed.
It is facile for this Court to say that due process comes into play only where an individual
charged with DUI has requested a blood test separate and apart from the test requested by the
arresting officer. First, we cannot reasonably expect that lay persons are familiar with the
provisions of West Virginia Code § 17C-5-9, which bestows this right, and it is frequently
impossible for an arrestee to secure legal advice during the narrow time frame within which a
blood draw must be taken if it is to have any evidentiary value. Additionally, if an individual has
acquiesced to the arresting officer’s request for a blood draw - an invasive and sometimes painful
procedure ‒ should he or she not reasonably assume that the blood will be tested and the results
made known to the defense? 5 Finally, blood tests are expensive, which makes the option of an
independent blood test one which is available only to individuals of means.
I also disagree with the majority’s conclusion that a remand for determining whether the
other evidence is “sufficient proof under the preponderance of the evidence standard to warrant
the administrative revocation of [a] driver’s license[,]” is a remedy for the loss or destruction of a
blood sample that was requested by the arresting officer. Blood test results are scientific evidence
which can cast significant doubt upon the arresting officer’s wholly subjective observations such
as “glassy eyes” or “halting gait.” See, e.g., State v. York, 175 W. Va. 740, 741, 338 S.E.2d 219,
221 (1985) (noting the importance of a blood test “to a court’s truth-finding function.”) (citations
omitted). This is especially true where, as is frequently the case, those observations come into
evidence through introduction of a hearsay document, the DUI Information Sheet, rather than
through the testimony of an arresting officer who is subject to cross examination. 6 By allowing
license revocation to rest solely upon subjective and circumstantial evidence, after the scientific
evidence has been lost, thrown away, or otherwise ignored by State actors, this Court has stripped
all remaining vestiges of due process from the administrative revocation proceedings.
For these reasons, I respectfully dissent.
5
Cf. In re Burks, 206 W. Va. 429, 525 S.E.2d 310 (1999), wherein it was held that “[t]he
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 31, Syl. Pt. 3. Surely in a situation where the blood draw is taken at the
request of the arresting officer, the arrestee has a reasonable expectation that the officer will follow
through by having the blood tested, at a minimum.
6
See Crouch v. W. Va. Div. of Motor Vehicles, 219 W. Va. 70, 631 S.E.2d 628 (2006)
(upholding the admissibility of this evidence against statutory and constitutional challenge) and
Frazier v. Fouch, 244 W. Va. 347, 853 S.E.2d 587 (2020) (holding that the Division of Motor
Vehicles has no duty to secure an officer’s presence at the hearing).
6