Everett Frazier, Commissioner of the West Virginia Division of Motor Vehicles v. Raymond Burcker and Everett Frazier, Commissioner, West Virginia Division of Motor Vehicles v. Aaron Powers

No. 21-0438 and No. 21-0686, Everett Frazier, Commissioner of the WV DMV v. Burcker
and Powers.
FILED
April 3, 2023
released at 3:00 p.m.
Armstead, Justice, dissenting: EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
By affirming the decision of the circuit court in these cases, the majority has
mistakenly allowed two drivers to escape the enhancement of their license revocations due
to aggravated DUIs even though their blood tests revealed alcohol concentrations of fifteen
hundredths of one percent or more, by weight. Respondents were involved in separate car
accidents and, after being transported to different hospitals, their blood was drawn for
diagnostic purposes. Respondent Burcker had a blood alcohol concentration of .198%, and
Respondent Powers had a blood alcohol concentration of .208%. The Office of
Administrative Hearings (hereinafter “OAH) upheld the revocations of Respondents’
licenses but rescinded the enhancements for aggravated DUI. The Commissioner appealed
the OAH’s decisions in both cases to the circuit court, and the circuit court affirmed the
OAH.
I believe, the majority wrongly rejects the Commissioner’s arguments in
these cases that “the OAH erred in refusing to give weight to diagnostic blood test results.”
The OAH refused to afford the tests such weight simply because the DMV did not establish
that such tests met the criteria of West Virginia Code of State Rules § 64-10-8. However,
there is no dispute that the blood tests at issue were ordered by medical personnel for
treatment and diagnostic purposes and were not performed at the direction of law
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enforcement officials. Accordingly, I believe that that West Virginia Code of State Rules
§ 64-10-8 does not apply in these cases.
As the Petitioner notes, in State ex rel. Allen v. Bedell, 193 W. Va. 32, 454
S.E.2d 77 (1995), this Court addressed the admissibility and weight of a blood test that was
“ordered by medical personnel for diagnostic purposes” at a time that the driver “had not
yet been charged with a crime.” Id. at 34, 454 S.E.2d at 79. Although the driver in Bedell
argued that his blood test had not been performed in accordance with our implied consent
statute, West Virginia Code §17C-5-4, this Court disagreed and concluded that “West
Virginia Code § 17C-5-4 (1991) does not govern the admissibility of the results of a
diagnostic blood alcohol test conducted prior to the arrest of a defendant and at the direction
of a defendant’s treating physician or other medical personnel.” Id. at Syl. Pt. 1.
Accordingly, this Court rejected the Petitioner’s argument in Bedell that “blood tests
obtained outside the scope of section 17C-5-4 should be deemed inadmissible.” Id. at 34,
454 S.E.2d at 79.
Conversely, the Respondents point to our memorandum decision in Frazier
v. Corley, No. 18-1033, 2020 WL 1493971 (W. Va. Mar. 26, 2020) (memorandum
decision), pet’n for rehearing refused (June 16, 2020), to support their position that West
Virginia Code of State Rules § 64-10-8 applies to these cases and that the OAH was correct
when it declined to rely on their blood tests to establish that they had committed aggravated
DUI.
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This matter illustrates the inconsistency in this Court’s prior rulings
regarding the admissibility of blood tests administered for diagnostic medical purposes. In
light of our decisions in Bedell and Corley, we are now faced with a situation in which the
implied consent statute does not bar the use of diagnostic blood tests to establish aggravated
DUI under the circumstances present in Bedell, but the legislative rule relating to the
implied consent statute may arguably be used to bar the admission of such tests to establish
aggravated DUI.
Simply put, I do not believe that West Virginia Code of State Rules § 64-10-
8 applies to the types of diagnostic tests that are at issue in the present case. Further, I am
concerned that the application adopted by the majority may have a significant effect on the
DMV’s ability to admit blood test evidence that was obtained in the course of medical
treatment. Therefore, to the extent that Corley acts to bar the use of blood tests to establish
blood alcohol concentrations in DUI cases, where such tests are administered by medical
personnel for treatment and diagnostic purposes and are not requested to be performed by
law enforcement officers or personnel, such memorandum decision should be overturned.
As to the actual evidence of blood alcohol concentration in the present cases,
the investigating officers in both cases obtained search warrants for the Respondents’
medical records, and the Respondents’ medical records were admitted into evidence at the
OAH administrative hearings. In Respondent Burcker’s case, the OAH concluded that the
test results could not be used to show his blood alcohol level because the DMV had not
produced any evidence that the test was conducted pursuant to West Virginia Code of State
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Rules § 64-10-8. In Respondent Powers’ case, the OAH considered the test result to be
relevant as to whether he had consumed alcoholic beverages, but it did “not afford the
‘result’ of the blood analysis any weight in deciding” the matter. To the extent that the
results of the tests were part of DMV’s records, they were properly admitted pursuant to
West Virginia Code § 29A-5-2(b), which provides
All evidence, including papers, records, agency staff
memoranda and documents in the possession of the agency, of
which it desires to avail itself, shall be offered and made a part
of the record in the case, and no other factual information or
evidence shall be considered in the determination of the case.
Documentary evidence may be received in the form of copies
or excerpts or by incorporation by reference.
Although the majority finds that this Court’s prior decision in Lowe v.
Cicchirillo, 223 W. Va. 175, 672 S.E.2d 311 (2008) does not support the Commissioner’s
position, I disagree. Lowe is instructive as to the procedure that should be followed in
determining the evidentiary weight to be afforded the blood test results. Lowe reminds us
of the following note in Crouch v. West Virginia Div. of Motor Vehicles, 219 W. Va. 70,
76, n. 12, 631 S.E.2d 628, 634 n. 12 (2006):
We point out that the fact that a document is deemed
admissible under the statute does not preclude the contents of
the document from being challenged during the hearing.
Rather, the admission of such a document into evidence merely
creates a rebuttable presumption as to its accuracy.
Id. The diagnostic blood test results that were admitted in these cases created a rebuttable
presumption of their accuracy, and like other evidence adduced during such proceedings,
the Respondents would have the ability to introduce evidence to rebut their accuracy or
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relevance. However, unlike the majority, I do not believe that West Virginia Code of State
Rules § 64-10-8 bars their use to establish aggravated DUI.
For these reasons, I believe the circuit court erred in affirming the decisions
of the OAH in these cases. Accordingly, I respectfully dissent as to the majority’s decision
to affirm the circuit court’s orders.
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