Frazier, DMV Commissioner v. Derechin

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2021 Term FILED
_______________ November 18, 2021
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
No. 20-0192 SUPREME COURT OF APPEALS
_______________ OF WEST VIRGINIA

EVERETT FRAZIER,
COMMISSIONER, WEST VIRGINIA DIVISION OF MOTOR VEHICLES,
RESPONDENT BELOW, PETITIONER

V.

JOSHUA DERECHIN,
PETITIONER BELOW, RESPONDENT

____________________________________________________________

Appeal from the Circuit Court of Kanawha County
The Honorable Joanna I. Tabit
Case No. 19-AA-80

AFFIRMED, IN PART; REVERSED, IN PART, AND REMANDED
____________________________________________________________

Submitted: October 6, 2021
Filed: November 18, 2021

Patrick Morrisey, Esq. Mark McMillian, Esq.
Attorney General Mark McMillian – Attorney at Law,
Elaine L. Skorich, Esq. L.C.
Assistant Attorney General Charleston, West Virginia
Charleston, West Virginia Counsel for Respondent
Counsel for Petitioner

JUSTICE WALKER delivered the Opinion of the Court.
JUSTICE ARMSTEAD concurs, in part, and dissents, in part, and reserves the right to
file a dissenting opinion.
 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.”

Syllabus Point 1, Muscatell v. Cline, 196 W. Va. 588, 474 S.E.2d 518 (1996).

2. “In cases where the circuit court has amended 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.” Syllabus Point 2, Muscatell v. Cline,

196 W. Va. 588, 474 S.E.2d 518 (1996).

3. “On appeal to the circuit court from an order of the Office of

Administrative Hearings affirming the revocation of a party’s license to operate a motor

vehicle in this State, when the party asserts that his or her constitutional right to due

process has been violated by a delay in the issuance of the order by the Office of

Administrative Hearings, the party must demonstrate that he or she has suffered actual

and substantial prejudice as a result of the delay. Once actual and substantial prejudice

from the delay has been proven, the circuit court must then balance the resulting

prejudice against the reasons for the delay.” Syllabus Point 2, Reed v. Staffileno, 239 W.

Va. 538, 803 S.E.2d 508 (2017).

i
 4. “ ‘A driver’s license is a property interest and such interest is

entitled to protection under the Due Process Clause of the West Virginia Constitution.’

Syl. Pt. 1, Abshire v. Cline, 193 W. Va. 180, 455 S.E.2d 549 (1995).” Syllabus Point 2,

Straub v. Reed, 239 W. Va. 844, 806 S.E.2d 768 (2017).

ii
WALKER, Justice:

After Joshua Derechin’s driver’s license was revoked by the Division of

Motor Vehicles (DMV) 1 in March 2013, he requested a hearing before the Office of

Administrative Hearings (OAH). OAH held a hearing two years later – in August 2015 –

yet the OAH did not issue its order affirming the license revocation until July 2019. On

appeal, the circuit court reversed and rescinded Mr. Derechin’s license revocation,

dismissing the case with prejudice, concluding that Mr. Derechin had been actually and

substantially prejudiced by OAH’s near four-year delay in issuing a final order. We

affirm the reversal and dismissal of the action because the circuit court did not abuse its

discretion in concluding that Mr. Derechin had suffered a change in circumstances and

had been actually and substantially prejudiced by the long post-hearing delay. But, the

circuit court also awarded Mr. Derechin costs and attorney fees for the “overall delay” of

the proceedings, even though the pre-hearing delay was not raised with specificity by Mr.

Derechin below, the facts and circumstances do not support an award of costs and fees

based on the pre-hearing delay, and the post-hearing delay is not attributable to DMV’s

conduct, but to the OAH. So, we find error in and reverse the assessment of costs and

attorney fees against DMV by the circuit court.

1
At the time Mr. Derechin filed his appeal to the circuit court, Adam Holley was
the acting Commissioner. Everett Frazier became acting Commissioner of the
Department of Motor Vehicles by the time Mr. Derechin filed his appeal to this Court and
was substituted as the appropriate party pursuant to Rule 41(c) of the West Virginia Rules
of Appellate Procedure.

1
 I. FACTS AND PROCEDURAL HISTORY

Mr. Derechin had recently moved to West Virginia when former Charleston

Police Officer B.A. Lightner pulled him over in downtown Charleston after observing

that Mr. Derechin was “driving erratically” and had improperly gone straight onto Court

Street from the right lane close to midnight on February 1, 2013. Mr. Derechin informed

Officer Lightner that he had consumed alcoholic beverages “not tonight, earlier.” Officer

Lightner observed that Mr. Derechin was walking normally to the roadside, though noted

he was unsteady in exiting the vehicle. Officer Lightner smelled alcohol and noted that

Mr. Derechin was nervous and had glassy eyes. Upon performance of field sobriety tests,

Mr. Derechin exhibited impairment in the Horizontal Gaze Nystagmus (HGN) Test, the

walk-and-turn test, and the one-leg-stand test. Mr. Derechin’s secondary chemical test

demonstrated a 0.071% blood alcohol concentration.

On February 22, 2013, DMV issued an order of revocation for Mr.

Derechin’s driver’s license effective March 29, 2013. Because it was his first offense,

Mr. Derechin was ordered to complete 120 days of the West Virginia Alcohol Test and

Lock Program (Interlock) and serve a fifteen-day revocation or, alternatively, serve a

ninety-day revocation. In either case, Mr. Derechin would have been required to

participate in the West Virginia Safety and Treatment Program and pay the costs of

reinstatement. Rather than pursue either of those options, on March 19, 2013, Mr.

Derechin requested an administrative hearing before the OAH.

2
 OAH set Mr. Derechin’s hearing for July 9, 2013, but it was rescheduled to

September 12, 2013 after Mr. Derechin sought a continuance due to his counsel’s long-

standing, pre-paid travel plans outside of the United States. The day of the September 12,

2013 hearing, DMV requested and was granted an emergency continuance after its

primary witness, Officer Lightner, had childcare issues and could not appear. OAH did

not issue an order rescheduling Mr. Derechin’s hearing until August 12, 2014 — nearly a

year later — and noticed the rescheduled hearing to occur on February 12, 2015. The

Legislature, citing the backlog of cases like Mr. Derechin’s, amended West Virginia

Code § 17C-5A-3a to allow drivers who waived their right to a hearing before the OAH

to serve the entirety of their revocation period on the Interlock program. Mr. Derechin

did not elect to participate.

Next, the February 2015 hearing was moved to March 12, 2015 due to

OAH’s scheduling errors. The March 2015 hearing was then continued to August 28,

2015 after Mr. Derechin asked for a continuance the day before the hearing. Finally, on

August 28, 2015, OAH conducted the hearing, and DMV presented only Officer

Lightner’s report, rather than Officer Lightner himself, to support its revocation of Mr.

Derechin’s license. OAH did not issue an order following the hearing. DMV filed a

motion for final order three years later in September 2018 but did not receive a response.

Nearly another year passed before OAH entered its order on July 22, 2019, affirming the

revocation of Mr. Derechin’s license.

3
 On July 30, 2019, Mr. Derechin filed an appeal in the Circuit Court of

Kanawha County arguing both that the OAH erred in affirming the revocation and that he

was actually and substantially prejudiced by the OAH’s delay in holding a hearing and in

issuing its decision. 2 DMV filed a cross-petition for judicial review, citing that it was

also actually and substantially prejudiced by OAH’s post-hearing delay.

The circuit court conducted an evidentiary hearing. At the hearing, Mr.

Derechin argued that OAH had excluded or otherwise discounted important evidence.

That evidence included a negative inference for spoliation of a videotape recording

documenting the stop, as well as newspaper articles related to Officer Lightner’s

discharge from the Charleston Police Department for misconduct. Upon the circuit

court’s review, it found that the OAH had improperly found Officer Lightner’s report

credible given the newspaper articles evidencing his “demonstrable unreliability,” and

that Mr. Derechin was entitled to an inference in his favor with respect to the unavailable

videotape. The circuit court therefore concluded that DMV had not met its burden to

prove that Mr. Derechin was driving impaired despite his BAC being under the legal

limit.

The circuit court further found that Mr. Derechin was actually and

substantially prejudiced by the post-hearing delay because, among other things, he had

Though Mr. Derechin’s petition to the circuit court references pre-hearing delay,
2

he did not advance that argument at the hearing and the circuit court did not analyze
whether Mr. Derechin was prejudiced by a pre-hearing delay.

4
divorced during the pendency of the proceedings, and his wife was no longer available to

drive him to work in or out of state as his job required. Based on where Mr. Derechin

lived, the circuit court found that Uber was an unreliable option since, when attempted, it

often cancelled the ride noting that there were no cars available. As to bus transportation,

the circuit court found it was similarly impractical because he would have to walk nearly

a mile off a mountain to the bus stop to catch a bus that ran infrequent routes with no

realistic connection to his workplace. In addition to his testimony regarding his divorce

and the difficult logistics of getting to his office and more remote work locations, Mr.

Derechin also testified that he had been offered a job with a company in Mississippi, and

declined it given that his license was in jeopardy.

To contravene the circuit court’s finding that Mr. Derechin had been

actually and substantially prejudiced by the delay, DMV contended that it, too, was

actually and substantially prejudiced by OAH’s post-hearing delay and that dismissal

would punish DMV for OAH’s delay. Together with the fact that DMV had not filed any

mandamus action to force OAH to issue its decision earlier, the circuit court found that

DMV had not advanced that Mr. Derechin’s case was particularly complex or that there

was any exceptional reason for the forty-seven-month delay. The circuit court reversed

and rescinded Mr. Derechin’s license revocation, dismissing the action with prejudice

and awarded him attorney fees and costs. DMV appeals that order.

5
 II. STANDARD OF REVIEW

In reviewing DMV’s appeal, we apply the following standard:

[o]n 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.[3]

And where, as here, the circuit court reversed the findings of OAH, our review is likewise

deferential to the circuit court in its ultimate disposition: “[i]n cases where the circuit

court has amended 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.” 4

III. ANALYSIS

DMV raises three issues with the circuit court’s order: (1) Mr. Derechin

was not actually and substantially prejudiced by OAH’s post-hearing delay, and even if

he were, DMV’s prejudice should have been balanced against Mr. Derechin’s; (2) the

circuit court substituted its judgment for that of the OAH with respect to Officer

Lightner’s credibility and spoliation of evidence; and (3) assessment of costs, fees, and

expenses against DMV for OAH’s post-hearing delay was error. We examine each of

these arguments in turn.

3
Syl. Pt. 1, Muscatell v. Cline, 196 W. Va. 588, 474 S.E.2d 518 (1996).
4
Id. at Syl. Pt. 2.

6
A. Actual and Substantial Prejudice from Post-Hearing Delay

Though there are no time constraints imposed by rule or statute governing

the issuance of decisions by OAH following an administrative hearing,5 due process still

operates as an outer limit. 6 As we have discussed, “this Court has long recognized the

constitutional mandate that ‘ “justice shall be administered without . . . delay.” W. Va.

Const. Art. III, § 17.’ Frantz v. Palmer, 211 W. Va. 188, 192, 564 S.E.2d 398, 402

(2001).” 7 And, “‘administrative agencies performing quasi-judicial functions have an

affirmative duty to dispose promptly of matters properly submitted.’” 8 But importantly, a

delay in and of itself – even a substantial one – is insufficient to establish a due process

violation requiring vacation of an order of revocation under this Court’s precedent.

In Miller v. Moredock, we explicitly declined to extend a presumption of

prejudice based solely on the passage of time. 9 Instead, we established in Miller a

standard for determining whether post-hearing delay amounts to a violation of due

5
See W. Va. Code § 17C-5C-1, et seq. and 105 C.S.R. 1-1, et seq.
6
See Holland v. Miller, 230 W. Va. 35, 39, 736 S.E.2d 35, 39 (2012) (“[D]ue
process concerns are raised when there are excessive and unreasonable delays in license
suspension cases.”).
7
Reed v. Staffileno, 239 W. Va. 538, 542 803 S.E.2d 508, 512 (2017).
8
Id. (quoting Syl. Pt. 7, in part, Allen v. State Human Rights Comm’n, 174 W. Va.
139, 324 S.E.2d 99 (1984)).
9
Miller v. Moredock, 229 W. Va. 66, 71-72, 726 S.E.2d 34, 39-40 (2011).

7
process, tying a violation to a finding of actual prejudice. 10 Later, in Reed v. Staffileno,

that standard was updated to reflect the administrative system under OAH, but was

substantively unchanged:

On appeal to the circuit court from an order of the
Office of Administrative Hearings affirming the revocation of
a party’s license to operate a motor vehicle in this State, when
the party asserts that his or her constitutional right to due
process has been violated by a delay in the issuance of the
order by the Office of Administrative Hearings, the party
must demonstrate that he or she has suffered actual and
substantial prejudice as a result of the delay. Once actual and
substantial prejudice from the delay has been proven, the
circuit court must then balance the resulting prejudice against
the reasons for the delay.[11]

Staffileno further elucidated that “[a]s a general matter, under Miller, the standard for

post-hearing prejudice will ordinarily involve some type of change in a party’s

circumstances that may have been substantially prejudiced because of the delay in issuing

a final order by OAH.” 12

DMV argues that Mr. Derechin has not suffered actual and substantial

prejudice as the circuit court concluded. As to his change of circumstances, the circuit

court found that Mr. Derechin and his wife had divorced and that Mr. Derechin

“unquestionably underwent a stark change in circumstances during the unreasonably long

delay in the issuance of the decision by the OAH.” Mr. Derechin was and is employed as

10
See id. at Syl. Pt. 5.
11
Syl. Pt. 2, Staffileno.
12
Id. at 543, 803 S.E.2d at 513.

8
a bridge design engineer and conducts about thirty percent of his work outside the State

of West Virginia. He also works in distant parts of the state. Mr. Derechin’s ex-wife did

not work outside the home and if he had no license, was able to drive him to his

Charleston office, his out-of-state work assignments, and work assignments in distant

locations within the state.

After noting that Mr. Derechin had no family closer than Chicago, the

circuit court examined the public transportation available to Mr. Derechin, concluding

that there was “nothing realistic.” To catch the bus, Mr. Derechin would have to walk

about a mile off a mountain to reach the line, and the busses run infrequently. Given that

Mr. Derechin often works irregular hours, the circuit court concluded that option was not

feasible, nor was Uber. 13 And those options only addressed Petitioner’s need to get to his

office, when a good portion of his work was spent traveling to distant parts of the state, or

out-of-state. The circuit court further found that Mr. Derechin had been unable to accept

or apply for promotions and that he had been offered management positions in

Mississippi but declined because his license was in jeopardy.

Based on those factual findings, the circuit court determined that Mr.

Derechin had undergone a change in circumstances because had the OAH issued a

decision even a year after the hearing, it would have simply been an inconvenience for

13
According to the circuit court, Uber rates were $20-22 one way and the attempts
to use the service resulted in “no cars available.”

9
his wife to take him to work and to his work assignments. It then concluded that Mr.

Derechin had suffered actual and substantial prejudice because being unable to drive

would disqualify him from continuing in his present job. As to DMV’s position and the

requisite balancing of the reasons for the delay, the circuit court heard testimony from the

Chief Hearing Examiner for OAH on behalf of DMV that OAH had made efforts to

address the “critical backlog” of cases. The Chief Hearing Examiner testified that Mr.

Derechin’s order had been released without final review 14 but the circuit court found that

no other measures had been taken to expedite the final order and that no evidence had

been put forth that Mr. Derechin’s case was particularly complex or that there was some

other exceptional reason for such a long delay.

Analogizing Mr. Derechin’s circumstances to those in Staffileno, the circuit

court concluded that he had been actually and substantially prejudiced by the forty-seven-

month post-hearing delay, reversed his license revocation, and dismissed the action with

prejudice. On appeal, DMV contends that Mr. Derechin’s circumstances are unlike those

in Staffileno, and more akin to Straub v. Reed. 15

14
The Chief Hearing Officer “temporarily suspended the review of proposed Final
Orders submitted by the Hearing Examiners for stylistic, typographical, clerical, and
grammatical errors. Pursuant to West Virginia Code § 17C-5C-2, the Chief Hearing
Examiner has limited her review of the Hearing Examiner’s recommended decision to
ensure legal accuracy and clarity.”
15
Straub v. Reed, 239 W. Va. 844, 806 S.E.2d 768 (2017).

10
 In Staffileno, this Court examined whether Mr. Staffileno was actually and

substantially prejudiced by a thirty-nine-month post-hearing delay. 16 Mr. Staffileno had

been employed as an accountant for more than thirty years, but during the three-plus year

pendency of his license revocation proceeding, he applied to get a commercial driver’s

license, retired from his desk job as an accountant and became a full-time school bus

driver. 17 As Mr. Staffileno had to maintain his commercial driver’s license as a condition

of his employment and he could not be employed if unable to drive, the circuit court

determined, and we agreed, that he had suffered substantial and actual prejudice as a

result of the post-hearing delay. 18

Conversely, in Straub, which was decided after Staffileno, we found the

driver had not been actually and substantially prejudiced such that the post-hearing delay

amounted to a due process violation. 19 In that case, Mr. Straub argued that he was

prejudiced by an eleven-month post-hearing delay because he had been employed as a

pharmaceutical sales representative and his employer had regularly issued notices of

potential layoffs. 20 Though Mr. Straub was not actually laid off, he testified that he was

interviewed by recruiters who would not continue his job search given that his driver’s

16
Staffileno, 239 W. Va. at 543, 803 S.E.2d at 513.
17
Id.
18
Id. at 543-44, 803 S.E.2d at 513-14.
19
Straub, 239 W. Va. at 851, 806 S.E.2d at 775.
20
Id. at 847, 806 S.E.2d at 771.

11
license could possibly be revoked. 21 The circuit court rejected that argument, finding that

Mr. Straub had not demonstrated any prejudice from the post-hearing delay because he

had suffered no change in circumstances and this Court agreed, distinguishing Mr.

Straub’s case from Staffileno. 22

DMV argues that Mr. Derechin’s circumstances are not at all like those

examined in Staffileno. Specifically, DMV contends that Mr. Derechin was not required

to drive for his work and there was no evidence that Mr. Derechin would have been

terminated from his employment if required to comply with the statutory revocation

requirements. DMV further asserts that this case is more like Straub because Mr.

Derechin’s job prospects in other states were mere speculation and he retained his

employment as a bridge designer. And, Mr. Derechin had not shown any change in

circumstances caused by the OAH’s post-hearing delay.

We believe, in viewing the facts of this case, that there was sufficient

evidence for the circuit court to have concluded that Mr. Derechin demonstrated a change

in circumstances related to his divorce and ability to get to work assignments after the

divorce. As noted by the circuit court, had the OAH issued the decision even a year after

the hearing, it would have been but a minor inconvenience. In reaching the conclusion

that the circuit court has not committed reversible error, we are mindful that our review is

21
Id.
22
Id. at 851, 806 S.E.2d at 775.

12
deferential. On these facts, there was sufficient evidence for the circuit court to analogize

the case under Staffileno and make a finding of prejudice, just as there may have been

sufficient evidence for the circuit court to have analogized the case under Straub and

made a finding that there was no prejudice. When we find ourselves in such a

predicament in deferential appellate review, only one thing is abundantly clear: there has

been no abuse of discretion.

We likewise do not take issue with the circuit court’s declination to afford

much, if any weight, to Mr. Derechin’s failure to seek mandamus relief. As we have

found in the past, failure to seek extraordinary relief is not a waiver of any complaint to

delay, but the circuit court has the discretion to consider it in examining whether there

has been actual and substantial prejudice:

although Appellee could have sought to hasten the
Commissioner’s decision by filing a petition for writ of
mandamus in the circuit court, Appellee did not waive the
argument that he was prejudiced by the delay in his circuit
court appeal of the revocation order. Despite the availability
of extraordinary relief as a means of seeking the issuance of
delayed decisions, a party whose driver’s license has been
revoked should not have to resort to such relief to obtain a
final decision by the Commissioner within a reasonable
period of time following the administrative hearing. By the
same token, when a party avers that his due process rights
have been violated by a delay in the Commissioner’s
decision—that is, that he has suffered actual and substantial
prejudice from the delay—but elects not to seek mandamus
relief, the reviewing court may consider this fact in
determining whether any such prejudice has occurred . . . .

To be clear, a party who elects not to seek mandamus relief
but who, instead, raises the delay issue for the first time on

13
 appeal to the circuit court, does so at his peril. The reviewing
court is free to consider the aggrieved party’s failure to
pursue a ruling as a factor in determining whether he has
suffered actual and substantial prejudice as a result of the
delay.[23]

We thus concluded in Staffileno that the reviewing court may give substantial or no

weight to a party’s failure to seek mandamus relief. 24 Along the same lines, because

DMV argues that it too is prejudiced by OAH’s delay, it could have attempted to seek

relief in mandamus and did not, and it too could have filed a motion sooner than three

years post-hearing asking for a decision. 25 If a driver is dangerous, such that DMV’s

mission compelled it to keep that driver off the roads and the OAH’s delays compromised

its ability to accomplish that mission, one would assume DMV would prioritize that case

by making extraordinary efforts to ensure OAH issued a timely decision through use of

mandamus, or, at least a motion to OAH for decision sooner than three years after the

hearing. In waiting three years to file a motion for decision then claiming prejudice by

OAH’s delay because it was deprived of the ability to revoke Mr. Derechin’s license, it is

23
Staffileno, 239 W. Va. at 545, 803 S.E.2d at 515 (quoting Miller, 229 W. Va. at
72 n.7, 803 S.E.2d at 40 n.7).
24
Staffileno, 239 W. Va. at 545, 803 S.E.2d at 515.
25
At the hearing, DMV expressed some concern over its ability to seek mandamus
against OAH without permission of the Department of Transportation (DOT) because
DMV and OAH are both arms of the DOT. But it noted that it had considered mandamus
relief as an option and simply had not explored what it would take to make it work. See
Miller, 229 W. Va. at 72 n.7, 726 S.E.2d at 40 n.7 (quoting Syl. Pt. 2, in part, Kanawha
Valley Transp. Co. v. Pub. Serv. Comm’n, 159 W. Va. 88, 219 S.E.2d 332 (1975)) (“[I]f a
decision is unduly delayed a proceeding in mandamus may be instituted to compel a
decision but not how to decide.”).

14
apparent that DMV did not prioritize Mr. Derechin as one such driver that needed

removed from the roadways with all expediency for the protection of the public.

In performing the balancing test here, the circuit court took evidence

regarding the reasons for the delay – specifically that OAH’s backlog of cases was dire

and compounded by staffing issues, but that OAH was taking steps to ameliorate it – and

found they were insufficient to justify a near four-year delay. What the circuit court did

not hear was that there were some circumstances specific to Mr. Derechin’s case that

could have caused it to languish for almost four years without a decision. And, the circuit

court noted that although DMV had sent a letter three years after the hearing asking for a

decision, it had not sought mandamus relief. The circuit court would have been hard-

pressed to excuse such an extensive delay by DMV’s proffer that there was simply a huge

backlog of cases stymied further by staffing issues, and we have not been presented with

any justification to disturb the circuit court’s findings in this regard.

Finally, we address DMV’s argument that it “has no control” over OAH, 26

and its prejudice is not adequately considered either in this case or in any case since

26
As we have previously explained,

[P]rior to 2010, the administrative hearing process was under the control of
DMV. 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).
15
Staffileno. DMV makes no secret that it wants Staffileno overturned. As noted in the

circuit court’s order, DMV’s argument before it was not aimed at analogizing or

distinguishing the law as it currently sits but at advocating for a change in the law. DMV

has not advanced any arguments that have not already been heard and rejected by this

Court several times over. In continuing to advance its agenda to modify Staffileno

because it punishes DMV for the dilatory practices of OAH, DMV has a mistaken

perspective. We do not permit the reversal of revocations for OAH’s post-hearing delays

to punish the DMV for OAH’s delay, but to protect the due process rights of drivers. As

we have held, “[a] driver’s license is a property interest and such interest is entitled to

protection under the Due Process Clause of the West Virginia Constitution.” 27 Though

prejudice is not presumed by the length of delay alone, when OAH takes nearly four

years to issue a decision, the odds of actual prejudice certainly increase the longer these

drivers are left in limbo and must put their life decisions and career moves on hold. That

delay may not be placed squarely on the shoulders of DMV, but it certainly is not placed

on the shoulders of the driver. While DMV’s laudable purpose is “to protect innocent

persons by removing intoxicated drivers from the public roadways as quickly as

possible,” 28 DMV is not the party with a property interest at stake protected by the Due

Staffileno, 239 W. Va. at 541 n.2, 803 S.E.2d at 511 n.2.
27
Syl. Pt. 2, Straub (quoting Syl. Pt. 1, Abshire v. Cline, 193 W. Va. 180, 455
S.E.2d 549 (1995)).
28
Syl. Pt. 3, in part, In re Petition of McKinney, 218 W. Va. 557, 625 S.E.2d 319
(2005).

16
Process Clause. So, we have not been presented with any new argument that would

persuade us to overturn Staffileno.

Having concluded that the circuit court did not abuse its discretion in

finding that Mr. Derechin suffered actual and substantial prejudice and affirming the

circuit court’s order in that respect, we need not examine DMV’s second assignment of

error relating to the merits of the revocation as the prejudice finding is dispositive. We

turn instead to DMV’s argument that the circuit court inappropriately assessed fees to

DMV.

B. Assessment of Fees

After concluding that Mr. Derechin was actually and substantially

prejudiced by the post-hearing delay, the circuit court further found that Mr. Derechin

should not bear the costs of the action, citing the overall delay. Though Mr. Derechin’s

appeal to the circuit court cites the two- and one-half-year delay in convening the

hearing, from our review of the record, Mr. Derechin clarified that his position was that

he was prejudiced by OAH’s post-hearing delay, not a pre-hearing delay. No evidence

was taken on pre-hearing delay, no argument was had on pre-hearing delay, and the

circuit court’s order makes no analysis of pre-hearing delay other than in the assessment

of costs and attorney fees, focusing instead on post-hearing delay. 29 Nevertheless, even if

29
As we have previously discussed, the analysis differs in pre-hearing delay cases
and post-hearing delay, the former asking whether the driver was prejudiced in his or her
ability to defend and the latter asking whether the driver has suffered a change in
17
we presume that the “overall delay” included both the pre-hearing continuances that

delayed adjudication and the post-hearing delay awaiting decision of the OAH,

assessment of costs and fees against DMV was not supportable on these facts.

In awarding Mr. Derechin costs and attorney fees, the circuit court relied on

this Court’s holding in Reed v. Conniff, in which we directed an award of attorney fees

stating:

[W]e further find that the cumulative effect of the multiple
continuances and overall delay in this matter, while not
prejudicial to Conniff’s defense, warrants an award of
attorney fees and costs and therefore remand to the circuit
court for a determination as to the reasonable amount of such
fees and costs.[30]

In Conniff, we were examining a pre-hearing delay for multiple continuances, none of

which were attributable to the driver. Three of the continuances in that case were due to

DMV’s mishandling of the case “which in fairness ought to be routine for that agency”

and one of the continuances was due to the hearing examiner’s illness. 31 In Conniff, we

did not find that the driver had been prejudiced because the continuances did not impede

his defense, but, given that the proceedings had been so protracted by DMV’s cumulative

circumstances amounting to actual and substantial prejudice. See Staffileno, 239 W. Va.
at 543, 803 S.E.2d at 513 (“The issue of a party’s ability to mount a defense is relevant
when there is a substantial delay in holding an actual hearing. . . . In the context of a
delay in issuing an order after a hearing has been held, the issue of prejudice necessarily
involves prejudice to a party that occurred after the hearing was held.”).
30
236 W. Va. 300, 302, 779 S.E.2d 568, 570 (2015).
31
Id. at 309, 779 S.E.2d at 577.

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continuances, this Court awarded him attorney fees and costs. 32 That holding was, in

part, aimed at addressing DMV’s seeming position in that case that “drivers may be held

captive by cumulative continuances into perpetuity insofar as such continuances are

grounded in ostensible ‘good cause.’” 33

This case presents several glaring issues illustrating why Conniff may not

be appropriately applied in this context. First, as noted, Mr. Derechin did not raise a pre-

hearing delay, nor did the circuit court make any findings that Mr. Derechin had been

prejudiced by a pre-hearing delay. Under Conniff, a finding of no prejudice, in and of

itself does not preclude an award of attorney fees and costs, but in Conniff, the driver was

blameless for the pre-hearing delays. Here, two of the four pre-hearing continuances

were attributable to Mr. Derechin’s requests, one was due to OAH’s scheduling error, and

one was requested by DMV. DMV’s one continuance was due to Officer Lightner’s last

minute childcare issues, not dilatory practices on behalf of DMV as in Conniff. There has

been no evidence presented that DMV is responsible, even indirectly, for the other three

continuances. So, the circumstances simply do not support an award of costs and

attorney fees.

Second, delays may be attributable to DMV at the pre-hearing stage

through DMV’s own conduct (such as seeking continuances) in a way that is not

32
Id. at 308-09, 779 S.E.2d at 576-77.
33
Id. at 307, 779 S.E.2d at 575.

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attributable to DMV post-hearing when both parties are awaiting decision from OAH.

The circuit court’s order does not reflect any affirmative conduct of DMV post-hearing

that would have warranted an award of attorney fees and costs under Conniff. For those

reasons, we conclude that the circuit court’s award of attorney’s fees and costs to Mr.

Derechin was error, and we reverse that portion of the circuit court’s order.

IV. CONCLUSION

For the reasons set forth above, we affirm, in part, and reverse, in part, the

February 4, 2020 order of the Circuit Court of Kanawha County. We remand this case to

the Circuit Court of Kanawha County for the limited purpose of entering a new order

with regard to the award of attorney fees and costs comporting with this opinion.

Affirmed, in part; reversed, in part, and remanded.

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