DocketNumber: No. 11-1241
Citation Numbers: 230 W. Va. 35, 736 S.E.2d 35
Judges: McHugh
Filed Date: 11/8/2012
Status: Precedential
Modified Date: 9/9/2022
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.
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.
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.
It appears from the record accompanying the appeal that the matter was thereafter continued and rescheduled four times. No
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-2
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
Non-prejudicial, de minimis failure by the Commissioner of the Division of Motor Vehicles to timely set or hold a hearing in accord with the provisions of W.Va.Code, 17C-5A-2(b) [1996] is not a bar to the Commissioner’s going forward with administrative proceedings to revoke a driver’s license.
This holding addresses factors which impact the determination of whether good cause for a continuance exist in given situations. It in no way eliminates the need for good cause to exist or the need to prove such existence upon review. Furthermore, such a conclusion would have no basis in statutory law or decisions of this Court.
West Virginia Code § 17C-5A-2(c)(2) provides that continuances may occur “for good cause shown.”
[P]rinciples of fairness suggest that the same promptness concerns that are imposed upon a defendant who requests a hearing in connection with an administrative revocation of his operator’s license should be similarly imposed upon the West Virginia Department of Motor Vehicles (“DMV”). To permit the DMV to grant itself an extension of the 180-day deadline for revocation hearings that is mandated by West Virginia Code § 17C-5A-2(b) (2004) without providing for any limits on the length of such extensions encourages the establishment of a lopsided system — a system that proves inherently unjust for the defendant____
Id. at 453, 618 S.E.2d at 462. The sole mechanism statutorily prescribed for extending the 180-day period is limited to cases where proceedings are continued or postponed based upon a demonstration of good cause.
As we previously determined, the lower court misinterpreted our holding in Miller v. Hare by failing to observe its limited application to facts which simply are not present in the case now pending. Moreover, the conclusion this Court announced in Hare was the sole finding upon which the lower
IV. Conclusion
In consideration of the foregoing, the May 12, 2011, order of the Circuit Court of Kanawha County is reversed, and the matter is remanded for further proceedings consistent with this opinion.
Reversed and remanded.
.The underlying matter was initiated with the filing of a document styled as "Petition for Writ of Prohibition and/or Writ of Mandamus"; however, the order on appeal expressly denies relief in prohibition. Our review proceeds in accord with the order on appeal as a denial of a writ of prohibition.
. See W. Va.Code § 17C-5A-l(c) (administrative authority to revoke).
. See W. Va.Code § 17C-5A-2(c)(3) (providing DMV notice of revocation hearing only constitutes a subpoena to appear if sent to law enforcement officer by registered or certified mail).
. West Virginia Code § 17C-5A-2(c).
. The same language also appears in the version of the statute which was in effect at the time the offense in this case allegedly occurred. See 2008 W.Va. Acts c. 70.
. W.Va.Code § 17C-5A-2(c)(l) and (2) (2012) provides in relevant part:
(c)(1) Any hearing shall be held within one hundred eighty days after the date upon which the Office of Administrative Hearings received the timely written objection [to the order of revocation or suspension] unless there is a postponement or continuance.
(2) The Office of Administrative Hearings may postpone or continue any hearing on its own motion or upon application by the party whose license is at issue in that hearing or by the commissioner for good cause shown.