Benson C. Boyd v. Everett Frazier, Commissioner, West Virginia Division of Motor Vehicles ( 2023 )

FILED
January 18, 2023
STATE OF WEST VIRGINIA EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Benson C. Boyd,
Petitioner Below, Petitioner
vs.) No. 21-1012 (Berkeley County 21-AA-1)
Everett Frazier, Commissioner,
West Virginia Division of Motor Vehicles,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Benson C. Boyd appeals the circuit court’s November 16, 2021, order affirming
the order of the Office of Administrative Hearings (“OAH”) that affirmed the revocation of his
driver’s license for driving under the influence of controlled substances (“DUI”). 1 Upon our
review, we determine that oral argument is unnecessary and that a memorandum decision
affirming the circuit court’s order is appropriate. See W. Va. R. App. Proc. 21.
Petitioner’s driver’s license was administratively revoked for DUI, and he requested an
administrative hearing before the OAH. One point of contention between the parties at the hearing
was whether petitioner requested a blood test. The investigating officer, Deputy William Wilhelm
of the Jefferson County Sheriff’s Office, noted on the DUI Information Sheet that he directed that
a blood sample be taken and that petitioner did not request one. 2 At the hearing, Deputy Wilhelm
could not recall whether petitioner requested a blood test or merely acquiesced to the officer’s
request that he produce a blood sample, but he also stated,
In my mind, it was me asking him if he was agreeing for it. . . . [T]he way I
remember it is I asked him if he was going to be willing to take a blood draw, and
he said yes. I don’t know if he was one of those where he definitely wanted to, or
if he was just agreeing with me.
Petitioner, on the other hand, testified, “I don’t remember him saying, ‘Do you want a
blood test’ ever. I said, ‘Hey, give me a blood test. I want to clear this matter up.’” Also, after his
1
Petitioner appears by counsel B. Craig Manford, and respondent appears by counsel
Patrick Morrisey and Elaine L. Skorich.
2
Ultimately, a blood test was not administered because the hospital to which petitioner was
transported for that purpose had no blood draw kits available.
1
release from jail on bond, petitioner obtained a urinalysis that tested for marijuana, cocaine,
amphetamines, opiates, and phencyclidine. The test results were negative. Petitioner sought to
admit this negative drug screen at the hearing, but respondent objected on the grounds that it was
hearsay and had not been authenticated. The OAH sustained those objections.
Another point of contention between the parties bearing relevance to the blood test issue
concerned a pill bottle that Deputy Wilhelm observed initially in petitioner’s glove compartment
as petitioner was locating documents requested by the officer. According to Deputy Wilhelm,
petitioner said that the bottle held his diabetes medication. After petitioner failed every field
sobriety test administered and was placed under arrest, the officer searched petitioner’s vehicle
and noted that the bottle was no longer in the glove compartment. Deputy Wilhelm asked petitioner
where the bottle went, and petitioner claimed not to know. Petitioner also reportedly changed his
story regarding the bottle’s contents, claiming that it contained medication to ease pain that he had
borrowed from a friend after using all of his own. Deputy Wilhelm searched around petitioner’s
vehicle for the bottle and located one a short distance away. The label on the bottle was worn, so
Deputy Wilhelm could not determine what medication the now-empty bottle once held, but he
could tell that petitioner’s name was not on the label. Deputy Wilhelm surmised that petitioner
tossed the bottle from his vehicle while the officer was running petitioner’s information in his
cruiser at the beginning of the traffic stop. At the hearing, petitioner denied that the bottle found
on the roadside was his and denied that it was the same one observed by the officer in the glove
compartment. Petitioner claimed, rather, that the bottle was still in his vehicle when he picked his
vehicle up after his release from jail.
In its order affirming the revocation of petitioner’s license, the OAH deemed petitioner’s
testimony on the issue of whether he requested a blood test not credible. The OAH pointed to
Deputy Wilhelm’s credible testimony that petitioner threw the pill bottle from his car, which the
OAH found evidenced “not only a consciousness of guilt [on petitioner’s part] . . . but a willingness
. . . to deceive in order to avoid responsibility.” The OAH also noted that petitioner’s testimony on
the blood test issue conflicted with Deputy Wilhelm’s “recorded recollection” of the event on the
DUI Information Sheet, which documented that petitioner did not request a blood test but that he
was willing to submit to one. Regarding petitioner’s urinalysis, the OAH reiterated that the results
were not admitted into evidence and found that they were “not relevant as no chain of custody was
established to prove that” petitioner provided the sample and that no witness testified to the
methodology employed or results. The OAH also noted that there is no requirement that a
secondary chemical test be completed to prove that a motorist was DUI for purposes of revocation,
and it found sufficient other evidence of petitioner’s impairment. Namely, Deputy Wilhelm
initiated a stop of petitioner’s vehicle because he almost struck a tow truck and crossed the center
line twice. Once stopped, petitioner exhibited “[n]umerous impairment detection clues” while
attempting the field sobriety tests, and he displayed consciousness of guilt by tossing the pill bottle
from his car.
Petitioner appealed to the circuit court, which affirmed the OAH’s decision, and he now
appeals to this Court. “On appeal of an administrative order from a circuit court, this Court is
2
bound by the statutory standards contained in W. Va. Code § 29A-5-4(a)[3] 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, Frazier v. Talbert,
245 W. Va. 293, 858 S.E.2d 918 (2021) (citations omitted).
Petitioner argues in his first of two assignments of error that he requested a blood test, that
the circuit court erred in concluding that his due process rights were not violated by the failure to
provide the requested blood test, and that his license revocation should be reversed as a
consequence of the failure to provide the blood test. We have acknowledged that West Virginia
Code § 17C-5-9 “provides a driver with a statutory right to a blood test when that driver has
properly invoked that right,” Dale v. Painter, 234 W. Va. 343, 349, 765 S.E.2d 232, 238 (2014),
and in Syllabus Point 6 of Frazier v. Talbert, 245 W. Va. 293, 858 S.E.2d 918 (2021), we identified
the factors that must be considered in determining the consequences that should flow from a failure
to provide a driver with a blood test demanded under West Virginia Code § 17C-5-9. But this
statute—and the case law that interprets it and upon which petitioner relies in arguing for reversal
of his license revocation—does not apply where a driver merely acquiesces to, but does not
demand, a blood test. Frazier v. Bragg, 244 W. Va. 40, 45-46, 851 S.E.2d 486, 491-92 (2020).
Recognizing as much, petitioner maintains that the OAH’s conclusion that he did not demand a
blood test was clearly wrong. The OAH’s conclusion, though, was supported by its observation of
petitioner’s “willingness . . . to deceive” in regard to the pill bottle and the officer’s notation, made
near the time of petitioner’s arrest, that petitioner did not request a blood test. Because the
conclusion/credibility determination is not “patently without basis in the record,” it is “binding”
upon this Court. Martin v. Randolph Cnty. Bd. of Educ., 195 W. Va. 297, 304, 465 S.E.2d 399,
406 (1995); see also Frazier v. Null, 246 W. Va. 450, ---,874 S.E.2d 252, 257-58 (2022) (quoting
State v. Guthrie, 194 W. Va. 657, 669 n.9, 461 S.E.2d 163, 175 n.9 (1995)) (noting that the OAH
“had ‘exclusive’ authority to determine [petitioner’s] credibility,” and a reviewing court “ha[s] no
authority to review that credibility determination”). Petitioner has failed to demonstrate error in
the conclusion that he did not demand a blood test; accordingly, the authority on which he relies
3
Upon judicial review of a contested case under the West Virginia
Administrative Procedure Act, Chapter 29A, Article 5, Section 4(g), the circuit
court may affirm the order or decision of the agency or remand the case for further
proceedings. The circuit court shall reverse, vacate or modify the order or decision
of the agency if the substantial rights of the petitioner or petitioners have been
prejudiced because the administrative findings, inferences, conclusions, decisions
or order are: “(1) In violation of constitutional or statutory provisions; or (2) In
excess of the statutory authority or jurisdiction of the agency; or (3) Made upon
unlawful procedures; or (4) Affected by other error of law; or (5) Clearly wrong in
view of the reliable, probative and substantial evidence on the whole record; or (6)
Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.”
Syl. Pt. 2, Frazier v. Talbert, 245 W. Va. 293, 858 S.E.2d 918 (2021) (quoting Syl. Pt. 2,
Shepherdstown Volunteer Fire Dep’t v. State ex rel. State of W. Va. Hum. Rts. Comm’n, 172 W.
Va. 627, 309 S.E.2d 342 (1983)).
3
in arguing that he was denied due process is inapplicable, and this assignment of error is without
merit.
In his second assignment of error, petitioner argues that the OAH erred in denying the
admission of his drug screen. Although he advances several questionable bases for its claimed
admissibility, 4 he does not apply the cited authority or otherwise explain how the drug screen was
admissible under the identified authorities. 5 His failure to “structure an argument applying
applicable law” renders this assignment of error out of compliance with this Court’s rules, and we
need not address it. State v. Sites, 241 W. Va. 430, 442, 825 S.E.2d 758, 770 (2019) (quoting Dec.
10, 2012, Admin. Ord., Re: Filings That Do Not Comply With the Rules of App. Proc.) (“‘[B]riefs
that . . . fail to structure an argument applying applicable law’ are not in compliance with this
Court’s rules. Insofar as this assignment of error is inadequately briefed and fails to comply with
the administrative order and our appellate rules, this Court will not address this assignment of
error.”).
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: January 18, 2023
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
4
Petitioner asserts that the drug screen is excepted from the rule against hearsay as a
statement made for medical diagnosis or treatment under Rule 803(4) of the West Virginia Rules
of Evidence, that his own testimony authenticated it, that the OAH could have taken judicial notice
of the results, and that the evidence was admissible under West Virginia Code § 29A-5-2(a)
because, in the wording of that statute, “it is a type commonly relied upon by reasonable men in
the conduct of their affairs.”
5
In fact, before the OAH petitioner agreed with the hearing examiner’s stated bases for
exclusion. When the hearing examiner stated that the drug screen document had not been
authenticated, petitioner’s counsel said, “That’s true.” And when the hearing examiner responded,
“So it’s hearsay,” petitioner’s counsel acknowledged, “That’s right.”
4