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No. 32748 - In
Re: Petition of Scott A. McKinney for Judicial Review of Administrative Decision
Made by F. Douglas Stump, Commissioner, Department of Transportation, Division
of Motor Vehicles
Albright, Chief Justice, concurring, in part, dissenting, in part:
While I certainly agree with the majority's
holding of law which acknowledges the objective of this state's administrative
driver's license revocation procedures is the protection of innocent parties,
I dissent to the majority's conclusion that West Virginia Code § 17B-3-6(a)(1) (See
requires the suspension of an operator's driver's license regardless
of whether the licensee is convicted of the offense that is the statutory
trigger for the suspension. Critically, the offense to which Mr. McKinney pled
guilty (See footnote 2)
not an offense that requires license suspension under West Virginia Code § 17B-4-3(c)
_ the statute to which West Virginia Code § 17B-3-6(a)(1) looks for purposes
of identifying whether
mandatory revocation is involved. Consequently, the majority has wrongly permitted
license suspension that is not authorized by either West Virginia Code § 17B-3-6(a)(1)
or West Virginia Code § 17B-4-3.
The trial court found significant the fact
that the Legislature had amended West Virginia Code § 17B-4-3 in 1999 to
remove the language that formerly permitted an additional one year of license
suspension for driving on a suspended license for a first offense. See
Code § 17B-4-3(c) (1994). (See
Now, the additional one year of license suspension is
only authorized by statute for the second or subsequent convictions of offenses
under subsection (a) of West Virginia Code § 17B-4-3. See
W.Va. Code § 17B-4-3(c)
(2004). The trial court, when trying to resolve this issue of statutory interplay,
reasoned as follows:
the intention of the Legislature is clear, and that should be the end of the
matter. The Legislature has directly spoken to the precise question at issue. Code § 17B-3-6(a)(1)
authorizes the suspension of a person's driver's license when mandatory revocation
is required upon conviction. Code § 17B-4-3  eliminated
the revocation of the person's driver's license for an additional year for
the first offense driving on a suspended license for administrative reasons.
[Mr. McKinney] was convicted of Driving Suspended for Administrative
Reasons within the contemplation of Code § 17B-4-3(a). Therefore,
the Commissioner has revoked [Mr. McKinney's] license for an additional year
even though [Mr. McKinney] was convicted of an offense that precludes a mandatory
revocation. Accordingly, the Final [DMV] Order was violative of Code § 29-5-4(g)(2)
in that it was issued in excess of the statutory authority of the agency.
While the majority chooses to ignore the
significance of the language upon conviction that appears in both
of the statutes under consideration, that language should play a critical and
determinative role in determining whether administrative revocation is warranted.
As with any criminal offense, it is the criminal conviction that triggers the
applicable civil penalty at issue here. Only by circumventing the critical significance
of the actual conviction's role to the invocation of administrative sanctions
under the legislative scheme at issue can the majority reach the result that
a conviction for an offense for which mandatory revocation is required is not
necessary for license suspension under West Virginia Code § 17B-3-6(a)(1).
The analysis employed by the majority to reach its result is unquestionably tortured
and certainly effectuates an absurd result. See Charter Commun. v. Community
Antenna Serv., Inc.., 211 W.Va. 71, 77, 561 S.E.2d 793, 799 (2002) (recognizing
that [i]t is the 'duty of this Court to avoid whenever possible a construction
of statute which leads to absurd, inconsistent, unjust or unreasonable results')
(quoting State v. Kerns, 183 W.Va. 130, 135, 394 S.E.2d 532, 537 (1990)).
The misguided result adopted by the majority
has far reaching ramifications for the prosecutors of this state. What this Court
began in Stump v. Johnson, __ W.Va. __, __ S.E.2d__, No. 32651 (filed
July 7, 2005), in preventing prosecuting attorneys from entering into plea agreements
that impact upon the authority of the Department of Motor Vehicles with regard
to administrative license revocation proceedings has now been ratcheted up another
notch. The practice of resolving numerous violations of the state's motor vehicle
laws through plea agreements will likely end when affected citizens recognize
that despite their entry of a plea to an offense that does not carry a mandatory
license revocation they will still lose their license. (See
footnote 4) An additional impact of the majority's decision will
be an unwelcome increase in the number of DUI and DUI suspension cases that prosecutors
are essentially powerless to resolve through any type of plea agreements. Thus,
it is not hard to see that the logical extension of the majority's ruling is
to effectively tie the hands of prosecutors with regard to disposing of such
Based on the foregoing, I respectfully concur,
in part, and dissent, in part, from the majority's opinion.
I am authorized to state that Justice Starcher
joins in this separate opinion.
The pertinent part of the
statute provides that:
(a) The division is hereby authorized
to suspend the driver's license of any person without preliminary hearing upon
a showing by its records or other sufficient evidence that the licensee:
(1) Has committed an offense
for which mandatory revocation of a driver's license if required upon conviction
W.Va. Code § 17B-3-6(a)(1) (emphasis supplied).
He pled guilty to a speeding
offense and to driving while suspended for administrative reasons in violation
of West Virginia Code § 17B-4-3(a). The penalty for a conviction under
West Virginia Code § 17B-4-3(a) is a fine and jail time depending on whether
the offense at issue is a first, second, or third commission.
That provision provided
Upon receiving a record of the conviction of any person under subsection (a)
or (b) of this section upon a charge of driving a vehicle while the license of
such person was lawfully revoked, the division shall extend the period of such
suspension for an additional period of one year from and after the date such
person would otherwise have been entitled to apply for a new license.
W.Va. Code § 17B-4-3(c) (1994).
And what the majority,
in its shortsighted approach, fails to realize is the far reaching economical
implications for the citizens of this state who upon losing their license are
essentially precluded from gainful employment due to the necessity of automotive
transportation to reach their place of employment. While I do not wish to minimize
the seriousness of DUI offenses, I do think it is important to recognize that
there are those cases where the offense at issue does not warrant license revocation
for a full year, especially where the Legislature has determined that the punishment
for the criminal offense does not carry that sentence. To impose a harsher
administrative sanction than that allowed for the criminal offense seems absurd.