Holland v. Miller

736 S.E.2d 35, 230 W. Va. 35, 2012 W. Va. LEXIS 780
CourtWest Virginia Supreme Court
DecidedNovember 8, 2012
DocketNo. 11-1241
StatusPublished
Cited by13 cases

This text of 736 S.E.2d 35 (Holland v. Miller) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Holland v. Miller, 736 S.E.2d 35, 230 W. Va. 35, 2012 W. Va. LEXIS 780 (W. Va. 2012).

Opinion

McHUGH, Justice:

John R. Holland II (hereinafter “Petitioner”) hereby appeals the May 12, 2011, order of the Circuit Court of Kanawha County denying his petition for a writ of prohibition.1 Petitioner had sought extraordinary relief in the court below in an effort to stop Joe E. Miller as the Commissioner of the West Virginia Department of Motor Vehicles (hereinafter “DMV”) from pursuing license revocation proceedings against him. Petitioner contended in his circuit court petition that he was deprived of constitutional and statutory protections because DMV had not shown good cause for the repeated delays in hearing the license revocation matter. In this appeal, Petitioner maintains that the lower court erred by denying relief in prohibition based on the incorrect conclusion that this Court’s decision in Miller v. Hare, 227 W.Va. 337, 708 S.E.2d 531 (2011), posed identical issues and rendered his request moot.

After full consideration of the briefs and arguments of the parties, in conjunction with the appendix supplied and the applicable law, the order of the circuit court is reversed and the case remanded for further proceedings consistent with this opinion.

I. Factual and Procedural Background

Petitioner was arrested on the charge of second offense driving under the influence (hereinafter “DOT”) on January 10, 2009. DMV issued and mailed to Petitioner an Order of Revocation dated March 3, 2009.2 Petitioner completed and submitted the prescribed DMV hearing request form, indicating on the form that he had not been driving under the influence and marking the space on the form stating that he intended to challenge the secondary chemical tests, including cross-examination of the administrator or analyzer of the test. He did not, however, mark the space requesting the attendance of the investigating officer at the hearing. In a letter dated March 5, 2009, Petitioner’s lawyer repeated the intention to challenge all secondary tests at the requested revocation hearing.

An initial hearing was held on June 18, 2009. According to the briefs of the parties, Petitioner testified that he was not driving under the influence at the time he was stopped. The investigating officer was not present at the hearing, and the briefs indicate that DMV had not subpoenaed the officer since the notice of the hearing was sent to the officer by regular mail.3 The revocation proceedings were continued so that the officer could be subpoenaed to address the conflict in the evidence.

It appears from the record accompanying the appeal that the matter was thereafter continued and rescheduled four times. No [38]*38subsequent hearing has been convened, for varying reasons not clearly appearing on the record. The last date set for hearing was November 17, 2010, but it was cancelled in response to court order caused by Petitioner filing the underlying request for extraordinary relief on October 21, 2010.

On May 12, 2011, the circuit court issued an order denying the writ of prohibition upon the sole finding that the request was “legally without merit” in light of the Miller v. Hare decision handed down by this Court on April 1, 2011. It is from this order that Petitioner appeals.

II. Standard of Review

“ ‘The standard of appellate review of a circuit court’s refusal to grant relief through an extraordinary writ of prohibition is de novo.’ Syl. pt. 1, State ex rel. Callahan v. Santucci, 210 W.Va. 483, 557 S.E.2d 890 (2001).” Syl. Pt. 1, Phillips v. W. Va. Div. of Motor Vehicles, 226 W.Va. 645, 704 S.E.2d 645 (2010). As the basis of this appeal turns on the proper application of law, we note that this Court applies the same de novo standard when reviewing questions of law. Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

III. Discussion

Petitioner argues that the lower court erred in declaring his request for extraordinary relief moot based upon this Court’s decision in Miller v. Hare. He asserts that his situation is factually dissimilar to Hare and is distinguishable from the issue he has raised. We agree and reverse the order of the circuit court.

Under the facts of the Hare case, the licensee specifically requested the investigative officer’s attendance at the revocation hearing but the officer did not appear even though a subpoena had been issued. This Court reversed the circuit court’s grant of a writ in prohibition barring a second hearing in that case based upon the following legal conclusion:

Pursuant to West Virginia Code § 17C-5A-2(c) (2008), the Commissioner of the DMV has authority to continue an administrative license revocation hearing on his or her own motion when an investigative officer, despite a validly issued subpoena, fails to appear at the hearing and fails to seek an emergency continuance. Good cause for the continuance exists by virtue of the statutory duty imposed on the Commissioner to secure the officer’s attendance at the hearing under West Virginia Code § 17C~5A-2(d) (2008) once the licensee has specifically requested the officer’s attendance at the revocation proceeding.

Syl. Pt. 2, 227 W.Va. at 338, 708 S.E.2d at 532 (emphasis added). The holding in the Hare case addressed a specific statutorily defined good cause basis for granting a continuance of a revocation hearing — that is, the grant of a continuance to secure the investigating officer’s attendance at the hearing as requested by the licensee. As previously noted, Petitioner in the present ease did not request the presence of the officer, so the holding from the Hare case is not dispositive of the facts presented in Petitioner’s case.

Petitioner argues that DMVs failure to provide him with any reason for the continuances in his case which would justify the administrative revocation proceedings beyond the 180-day statutory period set forth in West Virginia Code § 17C-5A-24 is a violation of his due process and equal protection rights. He specifically points to the fact that the notices of continuance he received contained no indication as to the reason for each of the continuances in his case, and that this practice served to obstruct his ability to determine whether a good faith challenge to the delay would be justified. He further notes that the administrative record to which he had access prior to filing his petition for extraordinary relief was different from what the DMV supplied as the administrative record in the circuit court. Petitioner contends that internal DMV memoranda were unavailable to him prior to his filing the petition for extraordinary relief, but were supplied to the circuit court by DMV as a portion of the administrative record.

DMV suggested during oral argument that the Commissioner did not have to have a reason to continue a hearing on his own motion, referring to this Court’s decision [39]*39in In re Petrey, 206 W.Va. 489, 525 S.E.2d 680 (1999).

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736 S.E.2d 35, 230 W. Va. 35, 2012 W. Va. LEXIS 780, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holland-v-miller-wva-2012.