West Virginia Drivers License

January 2006 Term No. 32859

DANIEL J. DAVID, Petitioner Below, Appellant


Respondent Below, Appellee

Appeal from the Circuit Court of Kanawha County Hon. Tod J. Kaufman,


Submitted: February 14, 2006 Filed: May 12, 2006

JUSTICE STARCHER delivered the Opinion of the Court.

JUSTICE BENJAMIN concurs and reserves the right to file a concurring


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

2. Where the West Virginia Department of Motor Vehicles has improperly
delayed a driver’s license revocation proceeding held pursuant to W.Va.
Code, 17C-5A-2 [2004] and thereby denied due process of law to a
licensee, a party who has incurred substantial expenses as a result of
the improper delay and denial may recover the party’s expenses so
incurred from the Department in order to place the party in the position
in which he or she would have been absent the improper delay and denial
by the Department. Starcher, J.:

In this case we hold that the West Virginia Department of Motor
Vehicles is responsible for the expert witness fees and attorney fees of
a licensee who was denied due process of law in connection with a
driver’s license revocation proceeding.

I. Facts & Background

The appellant, Daniel David, was charged on or about February 24,
2004, by Trooper C. L. Adkins of the West Virginia Department of Public
Safety with driving under the influence of alcohol. On March 4, 2004, the
appellee, the Commissioner of the West Virginia Department of Motor
Vehicles (“DMVâ€) issued an order revoking
the appellant’s driver’s license for six months, effective April 8, 2004.
The appellant timely appealed and requested a hearing on the license
revocation, and the revocation order was stayed pending the resolution of
the appeal. A hearing before a DMV hearing examiner was scheduled by the
DMV for October 4, 2004, at 12:30 p.m., at the DMV offices in Beckley,
West Virginia. The appellant’s counsel caused a subpoena to be issued by
the DMV on July 14, 2004, and to be served on Trooper Adkins on September
13, 2004, requiring Trooper Adkins to attend the October 4 hearing.

The DMV subpoena to Trooper Adkins was issued pursuant to W.Va. Code,
17A-2-18 [1951], which states:

(a) The commissioner and officers of the department designated by him
shall have authority to summon witnesses to give testimony under oath or
to give written deposition upon any matter under the jurisdiction of the
department. Such summons may require the production of relevant books,
papers, or records.

(b) Every such summons shall be served at least five days before the
return date, either by personal service made by any person over eighteen
years of age or by registered mail, but return acknowledgment is required
to prove such latter service. Failure to obey such a summons so served
shall constitute a misdemeanor. The fees for the attendance and travel of
witnesses shall be the same as for witnesses before the circuit

(c) Any circuit court shall have jurisdiction, upon application by the
commissioner, to enforce all lawful orders of the commissioner under this

The appellant, at substantial expense, retained an expert from the
State of Virginia on the subject of field sobriety tests and breath
testing. The expert traveled from Virginia to appear at the October 4,
2004 DMV hearing. The appellant, his counsel and witnesses, and the
expert appeared at the DMV office in Beckley at 12:30 p.m. on October 4,
2004. Trooper Adkins did not appear at that time. Trooper Adkins
apparently phoned the hearing examiner twice and telephonically obtained
“continuances†lasting until 3:00 p.m., on
the grounds that Trooper Adkins was in the Fayette County Magistrate
Court in Fayetteville, West Virginia _ about a half-hour drive from the
Beckley location of the DMV hearing. The appellant and his counsel
waited, assuming the hearing would begin at 3:00 p.m.; however, Trooper
Adkins did not appear at the DMV hearing at 3:00 p.m. and the appellant
and his counsel left at that time.

W.Va. Code, 17C-5A-2(b) [2004] addresses the issue of continuances of
DMV hearings, and states in pertinent part:

The commissioner may postpone or continue any hearing on the
commissioner’s own motion or upon application for each person for good
cause shown. The commissioner shall adopt and implement by a procedural
rule written policies governing the postponement or continuance of any
such hearing on the commissioner’s own motion or for the benefit of any
law- enforcement officer or any person requesting the hearing, and such
policies shall be enforced and applied to all parties equally. For the
purpose of conducting the hearing, the commissioner shall have the power
and authority to issue subpoenas and subpoenas duces tecum in accordance
with the provisions of section one, article five, chapter twenty-nine-a
of this code: Provided, That the notice of hearing to the appropriate
law- enforcement officers by registered or certified mail, return receipt
requested, shall constitute a subpoena to appear at the hearing without
the necessity of payment of fees by the division of motor vehicles.

On or about October 7, 2004, the appellant’s counsel received a copy
of a written “continuance request,†signed
by a Fayette County assistant prosecuting attorney and apparently filed
with the DMV, stating that Trooper Adkins had been in the Fayette County
Magistrate Court and could not attend a 3:00 p.m. October 4, 2004 hearing
in the appellant’s DMV case. The Fayette County assistant prosecutor’s
“continuance request†was accompanied by a
certificate of service indicating that the request was mailed to the
appellant’s counsel on October 5, 2004. (See footnote 1)

Records from the Fayette County Magistrate Court reflect that Trooper
Adkins had been informed _ by seventeen separate
“Notice[s] to Appear,†all dated July 29,
2004 that Trooper Adkins’ presence was required in the Fayette County
Magistrate Court, on October 4, 2004, for a series of traffic and
misdemeanor cases that were scheduled to begin at 10:00 a.m., 10:30 a.m.,
11:00 a.m., and 11:30 a.m; there were no notices for hearings beginning
later than 11:30 a.m. No subpoenas had been issued by the magistrate
court to Trooper Adkins requiring his attendance at these hearings. (See
footnote 2)

There is nothing in the record to suggest that Trooper Adkins sought
to have the magistrate court cases continued, or that he informed the
prosecutor’s office or magistrate court that he had been subpoenaed to
the appellant’s DMV hearing. Nor does the record reflect any attempt by
Trooper Adkins to continue the DMV hearing other than the phone calls on
the day of the hearing and the apparently “post
hoc†letters referenced above.

Subsequently, the DMV responded to the written continuance requests by
issuing a letter ruling granting a continuance of the October 4, 2004
hearing and rescheduling it for March 9, 2005, on the ground that
“[d]ue to an unexpected delay in Magistrate Court, the
Arresting Officer was unable to appear for the scheduled administrative

On February 4, 2005, the appellant filed a petition for writ of
prohibition and mandamus in the Circuit Court of Kanawha County, asking
that the DMV be barred from further proceedings on the appellant’s
license suspension due to the agency’s clear error in continuing the
October 4, 2004 hearing. This petition was summarily denied by the
circuit court on February 10, 2005. The appellant has appealed that
denial to this Court.

The appellant states _ without contradiction by the appellee _ that he
has expended all of the money that he can raise to hire an expert to
testify in his case, and that he will be severely and unfairly prejudiced
by his revocation case going forward without the services of the expert
whom the appellant hired to come to the October 4, 2004 DMV hearing. The
appellant argues that as a matter of law the appellee DMV’s continuance
of the hearing was improper, and that the license suspension proceedings
against the appellant should be dismissed.

II. Standard of Review

A writ of prohibition “lies as a matter of right
whenever the inferior court (a) has not jurisdiction or (b) has
jurisdiction but exceeds its legitimate powers and it matters not if the
aggrieved party has some other remedy adequate or
inadequate.†State ex rel. Valley Distributors, Inc. v.
Oakley, 153 W.Va. 94, 99, 168 S.E.2d 532, 535 (1969). In the instant
case, the circuit court’s denial and dismissal of the appellant’s
petition for a writ of prohibition was summary. The circuit court stated
no reasons for its ruling and made no findings; it appears that the
denial and dismissal order may have been entered without the filing of a
response by the appellee. Under these circumstances, without any findings
or discretionary determinations by the lower court to which we might give
deference, our review is de novo. See Syllabus Point 2, Walker v. West
Virginia Ethics Com’n, 201 W.Va. 108, 492 S.E.2d 167 (1997).

III. Discussion

The standard and procedures for granting continuances of DMV
administrative hearings, authorized by W.Va. Code, 17C-5A-2 [2004]
(quoted supra), are set forth at W. Va. C.S.R. Sec. 91-1-3. Rules 3.8.1
and 3.8.2 state:

3.8.1. The Commissioner may grant the person requesting a hearing a
continuance of the scheduled hearing. The person shall make the request
for continuance in writing, and it must be received by the Commissioner
at least five (5) days prior to the scheduled hearing date. The
Commissioner shall grant the request if good cause is shown. Good cause
shall include such reasons as serious illness, medical appointments,
court appearances, or religious holidays. In no case may the Commissioner
grant more than one continuance per party except as provided in
Subdivisions 3.8.3 and 3.8.4.

3.8.2. In DUI hearings, the Commissioner may also grant a continuance
to the arresting officer as prescribed in Subdivision 3.8.4.

Rule 3.8.1 rule specifically authorizes the issuance of continuances
for “court appearances;†and, if timely
invoked, would have applied to Trooper Adkins’ situation. To obtain a
continuance under Rule 3.8.1, at least five days before the DMV hearing
Trooper Adkins could (and should) have applied in writing for a
continuance based on the seventeen notices to appear in the Fayette
County Magistrate Court which advised him to appear at hearings in
Magistrate Court. Trooper Adkins had notice of these magistrate court
hearings for approximately two months before the October 4, 2004 DMV
hearing. The appellee does not offer any explanation for Trooper Adkins’
failure to utilize Rule 3.8.1 to seek a continuance of the DMV hearing.
(See footnote 3)

In addition to Rules 3.8.1 and 3.8.2, Rule 3.8.4 provides for
“emergency continuances†of DMV hearings
in limited circumstances, as follows:

The Commissioner may grant an emergency continuance on less than five
days notice to the person requesting the hearing and also the arresting
officer in a DUI hearing for unexpected personal emergencies of the
person, attorney, arresting officer, or subpoenaed witnesses. An
emergency situation requiring the services of an arresting officer en
route to a hearing qualifies as an unexpected personal emergency. Any
emergency continuance request may be made by telephone but also must be
submitted in writing. The written request must be received by the
Division no later than five (5) days after the date the hearing was
scheduled or the provisions of Subsection 3.7 will be applied as if the
party requesting the continuance failed to appear.

It is this “emergency continuanceâ€
procedure that the appellee relied upon in continuing the appellant’s DMV
hearing. However, a straightforward reading and application of Rule 3.8.4
demonstrates that the appellee had no grounds under Rule 3.8.4 to grant a

Trooper Adkins did not have an “unexpected personal
emergency.†Trooper Adkins’ magistrate court hearings were
fully expected. Trooper Adkins had received two months’ notice of the
hearings. Any experienced police officer would expect that a series of
hearings on seventeen cases, the last of which was scheduled to begin at
11:30 a.m., would not likely conclude in time for the officer to attend a
DMV hearing at a distant location that was to begin at 12:30 p.m.

Nor was the reason for the Trooper’s asserted
“emergency situation requiring the services of an
arresting officer en route to a hearing,†which is also
provided in Rule 3.8.4. Rather, the magistrate court hearings were
official scheduled business.

Trooper Adkins therefore did not demonstrate grounds for a continuance
pursuant to Rule 3.8.4; and the DMV should not have granted a continuance
of the October 4, 2004 hearing on that basis.

In Syllabus Point 1 of Abshire v. Cline, 193 W.Va. 180, 455 S.E.2d 549
(1995), Justice Cleckley stated, “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.â€
(See footnote 4)

This Court has addressed claims of prejudicial delay and the violation
of due process by the DMV in connection with driver’s license
proceedings. In State ex rel. Cline v. Maxwell, 189 W.Va. 362, 432 S.E.2d
32 (1993), a circuit court dismissed DMV license revocation proceedings
due to excessive delay by the DMV in holding revocation hearings. This
Court held that dismissal was too strong of a remedy, because the
licensees had not shown “how the delay prejudiced
their ability to defend themselves.†189 W.Va. at 368, 432
S.E.2d at 38. In Cline, we granted a moulded writ of prohibition
requiring the DMV to temporarily return regular driver’s licenses to
drivers if hearings were reasonably delayed _ “to
shift the burden of the delay back to the Department.â€
(Emphasis added.) 189 W.Va. at 367, 432 S. E. 2d at 37. (See footnote

In the instant case the DMV argues that dismissal of the driver’s
license suspension proceedings against the appellant is an excessive
sanction. The DMV suggests that the appellant can simply come to another
hearing with his expert and other witnesses. The appellant, however,
alleges _ and this allegation is uncontradicted _ that he cannot afford
to pay his expert to come to another hearing; nor, he further argues,
should he have to incur this burden twice, inasmuch as it was the DMV’s
improper action in granting the continuance that led to a denial of the
appellant’s due process rights.

In an analogous situation, this Court has recognized that a proper
remedy for a party’s failure to appear at a deposition was an order
requiring the culpable party to pay for an expert witness’ fees and
travel costs to attend the deposition, and related attorney fees.
Cattrell Companies, Inc. v. Carlton, Inc., 217 W.Va.1, 15, 614 S.E.2d 1,
15 (2005).

This Court stated in Rosier v. Garron, Inc., 156 W.Va. 861, 875, 199
S.E.2d 50, 58 (1973) that “to the extent possible,
under modern concepts of jurisprudence, legal contests should be devoid
of those sporting characteristics which gave law the quality of a game of
forfeits or trial by ambush.†See also Hinchman v. Gillette,
217 W.Va. 378, 385, 618 S.E.2d 387, 394 (2005). In other words, the law
favors the resolution of cases on their merits. Dismissal of the license
suspension proceedings against the appellant, under the facts of the
instant case, would run counter to this principle.

Because we have not hesitated to apply the principle favoring the
resolution of matters on their merits for the benefit of the appellee
DMV, this principle must also be applied for the benefit of the appellant
licensee. Especially because the important property interest of a
driver’s license is at stake, the DMV must conduct license suspension
hearings in a fashion that assures the due process right of licensees to
a tribunal where both sides are able to fully and fairly present their
evidence before a neutral hearing examiner who does not act to favor or
advance the cause of either side. See Abshire v. Cline, supra.

In the instant case, “resolution on the
merits†means resolution of the appellant’s appeal after a
hearing in which the evidence and expert testimony that the appellant was
prepared to present on October 4, 2004, when the hearing was improperly
continued, may be presented by the appellant and his counsel. The DMV may
not be permitted to have the unfair advantage of its erroneous ruling on
the appellant’s request for a continuance at a license suspension

Based on the foregoing reasoning, we hold that where the West Virginia
Department of Motor Vehicles has improperly delayed a driver’s license
revocation proceeding held pursuant to W.Va. Code, 17C-5A-2 [2004] and
thereby denied due process of law to a licensee, a licensee who has
incurred substantial expenses and fees as a result of the improper delay
and denial may recover the party’s expenses and fees so incurred from the
DMV in order to place the licensee in the position in which he or she
would have been absent the improper granting of a continuance by the

Applying this principle, we conclude that the circuit court’s denial
of the requested writ of prohibition in the instant case must be
reversed; because absent such payment of the appellant’s expenses and
fees, the DMV would be acting in excess of its jurisdiction in conducting
a hearing that violates the appellant’s due process right to a full and
fair hearing on the merits of his case.

IV. Conclusion

We reverse the ruling of the Circuit Court of Kanawha County, and
remand this case with instructions to grant a writ of prohibition
requiring the DMV to pay the expert witness fees, attorney fees, and
travel costs incurred by the appellant as a result of the DMV’s
continuance of the October 4, 2004 administrative hearing, including the
appellant’s attorney fees incurred as a result of the instant proceeding
in prohibition and appeal. (See footnote 6)

Reversed and Remanded with Instructions.

Footnote: 1

Subsequently, the appellant’s counsel also obtained from the appellee
DMV a copy of a letter dated October 4, 2004, that was sent to the DMV
from a Fayette County magistrate, stating that Trooper Adkins had several
hearings “scheduled†on October 4, 2004,
and that it would be impossible for him to be available for the
appellant’s DMV hearing.

Footnote: 2 Magistrate Court Rules of Criminal Procedure Rule 15
provides for the issuance of subpoenas by the magistrate court pursuant
to the procedures in Rule 17 of the Rules of Criminal Procedure for
Circuit Courts. A notice to appear from the magistrate court, of the type
received by Trooper Adkins, is not a subpoena. Trooper Adkins was under a
direct and specific subpoena to appear before the DMV hearing officer,
and was not under a similar direct and specific legal compulsion to
attend the magistrate court proceedings. In terms of Trooper Adkins’
legal obligations, the DMV subpoena (unless he was excused from it in a
proper fashion) “outweighed†his
obligation to appear in magistrate court.

Footnote: 3 The appellant’s brief asserts that Trooper Adkins was
aware that the appellant had retained an expert for the DMV hearing.

Footnote: 4 In Abshire, this Court held that it was a denial of due
process for the DMV to strictly apply a five-day rule to deny a
continuance to a licensee whose counsel had acted reasonably in
requesting the continuance.

Footnote: 5 Our decision in State ex rel. Cline, supra, was cited in
Hickey v. North Dakota Dept. of Health, 536 N.W.2d 370, 372 (N.D. 1995)
for the proposition that: “Generally, to warrant
dismissal of administrative proceedings for delay, a party must show not
only unreasonable or unconscionable delay by the government in
initiating, conducting or concluding the proceedings, but also that the
party’s ability to defend against the allegations was substantially
prejudiced by the delay.†See also Syllabus Point 1, In re
Burks, 206 W.Va. 429, 525 S.E.2d 310 (1999) (“A law
enforcement officer’s failure to strictly comply with the DUI arrest
reporting time requirements of W. Va. Code, 17C-5A-1(b) [1994] is not a
bar or impediment to the commissioner of the Division of Motor Vehicles
taking administrative action based on the arrest report, unless there is
actual prejudice to the driver as a result of such

Footnote: 6 Any dispute regarding the amount of fees and expenses
should be resolved in the first instance by the Circuit Court of Kanawha
County. The DMV, of course, has the option of dismissing the license
revocation proceedings instead of payment of the appellant’s fees and

Source: http://www.state.wv.us/

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