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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 1999 Term
IN RE: PETITION OF DENNIS H. BURKS FOR JUDICIAL REVIEW OF
ADMINISTRATIVE DECISION MADE BY JOE E. MILLER,
COMMISSIONER, DEPARTMENT OF TRANSPORTATION,
DIVISION OF MOTOR VEHICLES, SUSPENDING THE LICENSE
OF DENNIS H. BURKS TO OPERATE A MOTOR VEHICLE
Appeal from the Circuit Court of Raleigh County
Hon. John A. Hutchison
Case No. 98-AA-27-H
Submitted: October 19, 1999
Filed: December 3, 1999
Darrell V. McGraw, Jr., Esq.
Randy D. Hoover, Esq.
Stanley I. Selden
Jacquelyn I. Custer, Esq.
Beckley, West Virginia
Senior Assistant Attorney General
Attorney for Petitioner
Charleston, West Virginia
Attorneys for Joe E. Miller, Commissioner
CHIEF JUSTICE STARCHER delivered the Opinion of the Court.
JUDGE JOHN S. HRKO, sitting by special assignment.
JUSTICE SCOTT did not participate in the decision of the Court.
SYLLABUS BY THE COURT
1. A law enforcement officer's failure to strictly comply with the DUI
arrest reporting time requirements of W.Va. Code, 17C-5A-1(b)  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
2. A person who is arrested for driving under the influence who requests
and is entitled to a blood test, pursuant to W.Va. Code, 17C-5-9 , must be given the
opportunity, with the assistance and if necessary the direction of the arresting law
enforcement entity, to have a blood test that insofar as possible meets the evidentiary
standards of 17C-5-6 .
3. The requirement that a driver arrested for DUI must be given a blood
test on request does not include a requirement that the arresting officer obtain and furnish
the results of that requested blood test.
Starcher, Chief Justice:
Facts & Background
On December 26, 1997, the appellee, Dennis H. Burks (Burks), was arrested
in Beckley for driving under the influence of alcohol (DUI) by Deputy L. D. Lilly of the
Raleigh County Sheriff's Department. After failing field sobriety tests administered by
Deputy Lilly, Burks was taken to a police station and given a chemical breath test, which
registered an alcoholic concentration in the appellee's blood of 14 hundredths of one percent
(.14), by weight. The legal limit is 10 hundredths (.10). From the police station, Burks
called his attorney. Following that conversation, Burks requested a blood test. He was taken
to Raleigh General Hospital where a blood test was performed.
Pursuant to W.Va. Code, 17C-5A-1(b) , a law enforcement officer
arresting an individual for DUI
. . . shall report to the commissioner of the division of motor
vehicles by written statement within forty-eight hours the name
and address of the person so arrested. The report shall include
the specific offense with which the person is charged, and, if
applicable, a copy of the results of any secondary tests of blood,
breath or urine.
The Statement of Arresting Officer is used by the Division of Motor Vehicles
(DMV) in the driver's license revocation process. In this case, Deputy Lilly prepared a
Statement of Arresting Officer. The Statement, however, was not mailed to the DMV until
December 29, 1997, more than 48 hours after Burks' arrest. The statement was stamped as
received at the DMV on December 31, 1997.
On January 7, 1998, Burks' driver's license was suspended by the DMV. On
January 14, 1998, Burks' attorney sent a letter to Deputy Lilly, requesting certain
information concerning the blood test, including the results, and the type and manner of
blood test that was conducted.
On January 26, 1998, Deputy Lilly responded to Burks' attorney by letter,
stating that Deputy Lilly did not have the requested information, but the information could
be obtained by Burks from Raleigh General Hospital.
On April 14, 1998, an administrative hearing on the DMV license suspension
was held before the DMV. Deputy Lilly testified that he did not have the results of the blood
test. The DMV Commissioner indicated that, because the blood test was done at Burks'
request, Deputy Lilly had no duty to obtain the results.
On June 15, 1998, the DMV entered an administrative final order, effective
the same date, suspending Burks' driver's license for 6 months. The DMV order states:
Burks has not shown that he was prejudiced by the officer's failure to file the [arresting
officer's] statement within forty-eight hours.
Burks appealed the DMV decision to circuit court. On September 4, 1998, the
circuit court entered an order reversing the DMV's revocation of Burks' license. In so
ruling, the circuit court set forth the following rationale:
1. The reasoning behind this relates to the failure of the
arresting officer, pursuant to WV Code, 17C-5A-1, to
submit within forty-eight (48) hours, an affidavit as
required by the statute. [I]t is clear that the officer did
not mail his affidavit within forty-eight (48) hours of the
arrest as he is required to do by statute, and therefore,
has failed to comply with the mandatory requirements of
2. The failure of the officer to supply the results of the
blood test is a substantial denial of due process and a fair
and full hearing on the issues[.]
Standard of Review
The circuit court's challenged rulings were matters of law that we review de
The first issue we consider is whether Deputy Lilly's failure to mail the
Statement of Arresting Officer to the DMV within 48 hours of Burks' arrest is grounds to
overturn the DMV license suspension.
The DMV takes the position that Deputy Lilly's failure to mail the Statement
of Arresting Officer to the DMV within 48 hours did not bar the DMV from revoking Burks'
license. The DMV cites us to Coll v. Cline, 202 W.Va. 599, 606, n. 12, 505 S.E.2d 662,
669, n.12 (1998), where we observed that time requirements for filing an arresting officer's
statement applied only to the officer, and had no application to the Commissioner.
Burks takes the position that the requirement that the arresting officer mail the
report of a DUI arrest to the DMV Commissioner within 48 hours is a condition precedent
to the Commissioner having subject matter jurisdiction of a license revocation case. Because
the Statement of Arresting Officer was mailed out of time, Burks says that the Commissioner
never acquired jurisdiction over the case. Consequently, Burks argues, the proceedings
before the Commissioner are void, and the circuit court properly dismissed the revocation
of Burks' driver's license.
We agree with the DMV that the 48-hour reporting duty in W.Va. Code, 17C-
5A-1(b)  is directed to and imposed on the arresting officer, and not on the DMV. We
further recognized in Coll v. Cline, supra, and in Dolin v. Roberts, 173 W.Va. 443, 317
S.E.2d 802 (1984) that technical and nonprejudicial noncompliance with reporting time
requirements that are imposed on a law enforcement officer was not a jurisdictional
impediment to the DMV taking action regarding a license suspension.See footnote 1
Consequently, we hold that a law enforcement officer's failure to strictly
comply with the DUI arrest reporting time requirements of W.Va. Code, 17C-5A-1(b) 
is not a jurisdictional 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.
Applying this standard to the instant case, the brief delay in submitting the
arresting officer's statement was de minimis, and there was no prejudice shown. The circuit
court's ruling on the delay issue was erroneous and is reversed.
The second issue we consider is whether Deputy Lilly's failure to provide
Burks with the results of and information about the blood test was grounds to overturn the
W.Va. Code, 17C-5-9  states that a driver arrested for DUI has a right
to demand a blood test, and the analysis disclosed by such . . . test shall be made available
to such arrested person forthwith upon demand.See footnote 2
See Moczek v. Bechtold, 178 W.Va. 553,
363 S.E.2d 238 (1987). Since the blood test was requested by Burks, the DMV argues that
the hospital, and not Deputy Lilly, had the burden of producing the results -- and that Deputy
Lilly was not required to act as an agent of Burks to obtain the results. Furthermore, the
DMV argues that there is nothing in the record to suggest that the blood test results were
Burks argues that the blood test provided for by W.Va. Code, 17C-5-9 
must be administered pursuant to the provisions of W.Va. Code, 17C-5-6 .See footnote 3
statute says that the results of a blood test taken at the direction of law enforcement must be
provided to the arrestee upon request.
In the instant case, the record is unclear as to what degree of involvement the
arresting officer had with the taking of blood from Burks. Burks argues that the officer
should have: (1) taken Burks into the hospital, and directed hospital personnel to perform
a blood test using statutorily prescribed methods (apparently police officers frequently carry
blood test kits that meet statutory criteria); (2) followed the customary practice of taking and
sending the blood sample to the state police lab for testing; and (3) then given the results to
Burks and the commissioner. Burks suggests that this procedure is required whenever a
driver arrested for DUI requests a blood test.
We observe that the repeated amendment of our DUI statutes has left them
somewhat complex and overlapping -- with several statutes frequently addressing the same
issue. This appears to be the case in the blood-test request provisions of W.Va. Code, 17C-
5-6  and -9 . And these provisions, in turn, must be parsed and read in
conjunction with other parts of the statutory criminal and administrative DUI law.
A detailed exegesis of these numerous statutes here would serve little purpose.
Taken together, and in light of our previous decisions, we agree with Burks that under our
DUI scheme, a DUI-arrested driver is deprived of a significant right if he or she requests a
blood test, and is given only an opportunity to have a blood test that does not meet statutory
evidentiary standards. There is little point in having the right to demand a potentially
exculpatory blood test, if the test that is given is not up to the evidentiary standard for blood
tests set forth in the statutes.
We therefore hold that a person who is arrested for driving under the influence
who requests and is entitled to a blood test, pursuant to W.Va. Code, 17C-5-9 , must
be given the opportunity, with the assistance and if necessary the direction of the arresting
law enforcement entity, to have a blood test that insofar as possible meets the evidentiary
standards of 17C-5-6 .
The circuit court concluded that the arresting officer's failure to obtain the
results of the blood test from the hospital, and to furnish the results to Burks, was fatal to the
DMV's ability to suspend the petitioner's license. However, upon reading all of the statutes
together we conclude that the requirement that a driver arrested for DUI must be given a
blood test on request does not include a requirement that the arresting officer obtain and
furnish the results of the requested blood test. Placing such a requirement on the arresting
officer can only be fairly read into the statutory scheme, if the blood test is the officer's
designated test -- and not a test that is requested by the driver. W.Va. Code, 17C-5-6
. Of course, the arresting officer cannot pose an impediment to the driver's obtaining
the results of and information about the test.
Burks was vigorously represented by counsel in the proceedings before the
commissioner, and Burks' counsel had subpoena powers available to him pursuant to W.Va.
Code, 17C-5A-2(b)  to obtain both the results of the blood test and information about
the methodology used in the test. Burks was aware well before the hearing that the officer
was not intending to obtain those results and that information. Burks did not show at the
DMV hearing that he had requested the results or other information about the test from the
hospital, or that the hospital had refused to provide the results or information, or that the
results or information would have been favorable to Burks.
We conclude that the circuit court erred in finding that the DMV was barred
from suspending Burks' license because of the failure of the law enforcement officer to
obtain and give the results of the blood test to Burks.
The circuit court's order is reversed and this case is remanded for further
proceedings consistent with this opinion.
1Of course, sauce for the goose is also sauce for the gander. We do not believe
that it is intended in our statutory scheme, absent specific legislative direction, that either the
DMV or a driver should be denied important rights (such as an opportunity for a hearing on
the merits) due to inadvertent, de minimis, nonprejudicial, good-faith, or other technical
failures to meet the time deadlines that are set forth in DMV administrative procedures. As
we stated in Sprouse v. Clay Communication, Inc., 158 W.Va. 427, 460, 211 S.E.2d 674,
This Court's policy with regard to procedural irregularities
which needlessly interfere with a disposition on the merits was
succinctly stated in the recent case of Rosier v. Garron, W.Va.,
199 S.E.2d 50 (1973), where the Court said:
(T)he distinction between procedural rules and
substantive rights is frequently illusory.
However, to the extent possible, under modern
concepts of jurisprudence, legal contests should
be devoid of those sporting characteristics which
gave law the quality of a game of forfeits or trial
2W.Va. Code, 17C-5-9  states that:
Any person lawfully arrested for driving a motor vehicle in this
State while under the influence of alcohol, controlled substances
or drugs shall have the right to demand that a sample or
specimen of his blood, breath or urine be taken within two hours
from and after the time of arrest, and that a chemical test thereof
be made. The analysis disclosed by such chemical test shall be
made available to such arrested person forthwith upon demand.
3W.Va. Code, 17C-5-6  states:
Only a doctor of medicine or osteopathy, or registered nurse,
or trained medical technician at the place of his employment,
acting at the request and direction of the law-enforcement
officer, may withdraw blood for the purpose of determining the
alcoholic content thereof. These limitations shall not apply to
the taking of a breath test or a urine specimen. In withdrawing
blood for the purpose of determining the alcoholic content
thereof, only a previously unused and sterile needle and sterile
vessel may be utilized and the withdrawal shall otherwise be in
strict accord with accepted medical practices. A nonalcoholic
antiseptic shall be used for cleansing the skin prior to
venapuncture. The person tested may, at his own expense, have
a doctor of medicine or osteopathy, or registered nurse, or
trained medical technician at the place of his employment, of his
own choosing, administer a chemical test in addition to the test
administered at the direction of the law-enforcement officer.
Upon the request of the person who is tested, full information
concerning the test taken at the direction of the law-enforcement
officer shall be made available to him. No person who
administers any such test upon the request of a law-enforcement
officer as herein defined, no hospital in or with which such
person is employed or is otherwise associated or in which such
test is administered, and no other person, firm or corporation by
whom or with which such person is employed or is in any way
associated, shall be in anywise criminally liable for the
administration of such test, or civilly liable in damages to the
person tested unless for gross negligence or willful or wanton