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Straub v. Reed

Supreme Court of West Virginia

November 1, 2017

JERRY S. STRAUB, Petitioner

          Submitted: October 11, 2017

         Appeal from the Circuit Court of Cabell County The Honorable F. Jane Hustead, Judge Case No. 16-C-274

          Herschel H. Rose, III, Esq. Rose Law Office Charleston, West Virginia Counsel for the Petitioner

          Patrick Morrisey, Esq. Attorney General Sean Whelan, Esq. Assistant Attorney General L. Wayne Williams, Esq. Assistant Attorney General Charleston, West Virginia Counsel for the Respondent


         1. "On appeal of an administrative order from a circuit court, this Court is bound by the statutory standards contained in W.Va. Code § 29A-5-4(a) 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, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996).

         2. "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." Syl. Pt. 1, Abshire v. Cline, 193 W.Va. 180, 455 S.E.2d 549 (1995).

         3. "'A law enforcement officer's failure to strictly comply with the DUI arrest reporting time requirements of W.Va. Code, 17C-5A-l(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 failure.' Syllabus point 1, In re Burks, 206 W.Va. 429, 525 S.E.2d 310 (1999)." Syl. Pt. 3, Carpenter v. Cicchirillo, 222 W.Va. 66, 662 S.E.2d 508 (2008).

         4. "On appeal to the circuit court from an order of the Office of Administrative Hearings affirming the revocation of a party's license to operate a motor vehicle in this State, when the party asserts that his or her constitutional right to due process has been violated by a delay in the issuance of the order by the Office of

          Administrative Hearings, the party must demonstrate that he or she has suffered actual and substantial prejudice as a result of the delay. Once actual and substantial prejudice from the delay has been proven, the circuit court must then balance the resulting prejudice against the reasons for the delay." Syl. Pt. 2, Reed v. Staffileno, W.Va., 803 S.E.2d 508 (2017).



         Nearly two years after Petitioner Jerry S. Straub was arrested for driving under the influence of alcohol ("DUI"), Respondent Pat S. Reed, Commissioner of the West Virginia Division of Motor Vehicles (hereinafter the "DMV"), issued an order revoking his driver's license. On appeal, the Office of Administrative Hearings (the "OAH"), affirmed the license revocation. The circuit court upheld that decision.

         On appeal to this Court, Mr. Straub's primary contention is that the procedural delays were so unreasonably excessive they violated his constitutional due process rights. Based upon our review of the briefs, legal authorities, appendix record, and upon consideration of arguments of counsel, this Court finds no merit to his arguments. Therefore, we affirm the order of the circuit court.


         A police officer with the Ceredo, West Virginia, Police Department arrested Mr. Straub for DUI on January 9, 2011. The officer initiated the traffic stop at approximately 3:00 a.m., after he observed Mr. Straub backing his vehicle into oncoming traffic and almost striking another vehicle. The officer smelled alcohol on Mr. Straub's breath and noticed his eyes were glassy and bloodshot. Mr. Straub admitted to drinking; he told the officer that he had consumed six to eight beers that evening. Mr. Straub failed a preliminary breath test, and the results of the secondary chemical test showed his blood alcohol concentration level was 0.107%.

         Mr. Straub appeared, pro se, before the City of Ceredo Municipal Court on March 10, 2011, and his misdemeanor DUI charge was dismissed.

         For reasons not explained in the record, the DMV maintains that it did not receive the DUI Information Sheet from the arresting officer until November 27, 2012. The DMV issued an order revoking Mr. Straub's driving privileges on December 18, 2012. Thereafter, Mr. Straub requested a hearing with the OAH to challenge the revocation.

         Following several continuances for various reasons, the administrative hearing eventually took place before a hearing examiner on March 10, 2015.[1] The police officer testified about the events surrounding the arrest. When he testified, Mr. Straub did not dispute the fact that he was driving while intoxicated. Rather, Mr. Straub testified that he felt prejudiced by the delay of the revocation order being issued over twenty-three months from the time of his arrest, and the incident then being over four years old. Mr. Straub testified that he was employed as a pharmaceutical sales representative, and his employer issued notices of potential layoffs regularly. He further testified that during the time frame between his arrest for DUI and the administrative hearing, he attempted to secure other employment. Mr. Straub claimed that he was interviewed by recruiters, but once they learned that his driver's license could possibly be revoked, the recruiters would no longer continue his job search. Fortunately, Mr. Straub's employer did not lay him off and he continued working while the matter was pending. At the administrative hearing, Mr. Straub's counsel moved to dismiss the case based on the procedural delays.

         On February 22, 2016, the OAH issued the decision of the hearing examiner which was adopted by the final order of the chief hearing examiner. The OAH found that Mr. Straub drove a motor vehicle while under the influence of alcohol on January 9, 2011. It ordered Mr. Straub's driver's license revoked under West Virginia Code § 17C-5A-2(j) (2013). The OAH did not address Mr. Straub's arguments regarding procedural delays; it noted the OAH "does not have jurisdiction to deal with issues of timing and delay."

         Mr. Straub appealed the OAH order to the circuit court and requested a stay of the revocation order pending that appeal pursuant to West Virginia Code § 17C-5A-2(s) (2013). The circuit court held a hearing on the matter and granted Mr. Straub's motion for stay.[2] By order entered October 21, 2016, the circuit court affirmed the OAH order, finding no merit to Mr. Straub's arguments.

         Mr. Straub filed this appeal, and presented a motion to stay the circuit court's order pending our appeal. On November 1, 2016, this Court granted this motion.

         II. ...

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