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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 1999 Term
IN RE: PETITION OF STEVEN C. PETREY FOR
JUDICIAL REVIEW OF ADMINISTRATIVE DECISION
MADE BY JOE E. MILLER, COMMISSIONER,
DEPARTMENT OF TRANSPORTATION, DIVISION OF
MOTOR VEHICLES, SUSPENDING THE LICENSE OF
STEVEN C. PETREY TO OPERATE A MOTOR VEHICLE
Appeal from the Circuit Court of Raleigh County
Hon. John A. Hutchison
Civil Action No. 98-AA-75-H
Submitted: November 2, 1999
Filed: December 10, 1999
Darrell V. McGraw, Jr., Esq.
Randy D. Hoover, Esq.
Beckley, West Virginia
Jacquelyn I. Custer, Esq.
Attorney for Steven C. Petrey
Senior Assistant Attorney General
Charleston, West Virginia
Attorneys for Joe E. Miller, Commissioner
CHIEF JUSTICE STARCHER delivered the Opinion of the Court.
JUDGE GARY JOHNSON, sitting by special assignment.
JUDGE JOHNSON dissents.
JUSTICE SCOTT did not participate in the decision of the Court.
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)  is not a bar to the Commissioner's going forward with administrative
proceedings to revoke a driver's license.
Starcher, Chief Justice:
In the instant case we reverse a circuit court ruling that held that the West
Virginia Division of Motor Vehicles (DMV) could not revoke a driver's license for driving
under the influence because the DMV was late in scheduling a hearing.
Facts & Background
The Circuit Court of Raleigh County, by order dated January 15, 1999, reversed
an administrative order by the Commissioner of the DMV that revoked Steven Petrey's (the
appellee) driver's license based on the commissioner's finding that the appellee had driven
a vehicle while under the influence of alcohol.
The circuit court reversed the DMV order because the DMV failed to meet
the mandatory requirements of the statute in that they failed to schedule the hearing within
twenty days of receipt of the request therefore.
The statute that the circuit court referenced is W.Va. Code, 17C-5A-2(b)
, that states in pertinent part:
Any such hearing shall be held within twenty days after the
date upon which the commissioner received the timely written
request therefor, unless there is a postponement or continuance.
The commissioner may postpone or continue any hearing on the
commissioner's own motion, or upon application for each person
for good cause shown. The commissioner shall adopt and
implement by a procedural rule written policies governing the
postponement or continuance of any such hearing on the
commissioner's own motion or for the benefit of any
law-enforcement officer or any person requesting the hearing,
and such policies shall be enforced and applied to all parties
The DMV received the appellee's request for a hearing on March 9, 1998. The
DMV sent the appellee a notice of hearing setting an administrative hearing for March 30,
1998, or 21 days after the DMV received the appellee's request for a hearing. The DMV's
hearing notice letter simultaneously advised the appellee that the March 30, 1998 hearing was
continued on the motion of the Commissioner for docket management and was
rescheduled for April 22, 1998. (The parties agree that the Commissioner regularly sets
and reschedules initial hearings in this fashion, and no challenge is made in the instant
appeal to this practice.) After three more continuances, two of which were requested by the
appellee, the hearing was finally held on October 9, 1998.
Standard of Review
We review the circuit court's application of the law to undisputed facts de
The above-quoted language from the statute in question, W.Va. Code, 17C-5A-
2(b) , gives the Commissioner substantial power to postpone or continue hearings, as
long as this is done in an even-handed fashion. In the recent case of In Re: Petition of
Dennis H. Burks, ___ W.Va. ___, ___ n. 1, ___ S.E.2d ___, ___n. 1, slip op. at 4 n. 1 (No.
25897, December 3, 1999) this Court stated:
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
(Emphasis in original.)
In the instant case, the appellee suffered no prejudice from the DMV's failure
to set the initial hearing within 20 days of receiving the appellee's request for a hearing.
There is no suggestion or allegation that the DMV's failure to set the appellee's hearing for
a date within 20 days of receiving a request for a hearing was anything other than a
Based upon the reasoning of Burks, supra, we hold that a 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)  is not a bar to
the Commissioner's going forward with administrative proceedings to revoke a driver's
The order of the Circuit Court of Raleigh County is reversed.