Thomas T. Madden, III
V. McGraw, Jr.
Glen Dale, West Virginia Attorney General
Attorney for Appellant Janet E. James
Assistant Attorney General
Charleston, West Virginia
Attorneys for the Respondent
The Opinion of the Court was delivered
CHIEF JUSTICE DAVIS and JUSTICE MAYNARD dissent and reserve the right to file dissenting opinions.
JUSTICE ALBRIGHT concurs and reserves the right to file a concurring opinion.
the issue on an appeal from the circuit court is clearly a question of law
or involving an interpretation of a statute, we apply a de novo standard
of review. Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194
W. Va. 138, 459 S.E.2d 415 (1995).
statutory provision which is clear and unambiguous and plainly expresses the
legislative intent will not be interpreted by the courts but will be given
full force and effect. Syllabus point 2, State v. Epperly, 135
W. Va. 877, 65 S.E.2d 488 (1951).
This appeal was filed by Michael Butcher, appellant/petitioner below (hereinafter referred to as Mr. Butcher), from a ruling by the Circuit Court of Wetzel County affirming an administrative decision to suspend Mr. Butcher's driver's license. Mr. Butcher's driver's license was suspended by Joe E. Miller, Commissioner of the West Virginia Division of Motor Vehicles, appellee/respondent below (hereinafter the Commissioner), as a result of Mr. Butcher's refusal to take a designated chemical breath test to determine whether he was driving while impaired. Mr. Butcher contends that he was not properly informed that his driving license would be suspended should he refuse to take the designated chemical breath test. After reviewing the briefs and record in this case and listening to oral arguments, we reverse the circuit court's order.
After the arrest, deputy
Kastigar forwarded to the Commissioner a report indicating Mr. Butcher had
been arrested for driving under the influence. The report also stated that
he refused to take a chemical breath test. On December 27, 1996, the Commissioner
issued an order notifying Mr. Butcher that his driver's license was revoked
because of his refusal to take the chemical breath test. The order informed
Mr. Butcher that he was entitled to have an administrative hearing to contest
the revocation. Mr. Butcher contested the revocation. A hearing was held on
April 8, 1997. Following the hearing, the Commissioner found that the evidence
established that Mr. Butcher had refused the chemical breath test. Consequently,
the Commissioner issued a final order on December 2, 1997, revoking Mr. Butcher's
driver's license for 10 years.
On December 30, 1997, Mr.
Butcher appealed the Commissioner's final order to the circuit court. On June
30, 2000, the circuit court filed an order affirming the Commissioner's final
order. Mr. Butcher filed a motion for reconsideration on July 6, 2000. (See
footnote 1) The circuit court filed an order on June 6,
2001, denying the motion for reconsideration. Thereafter, this appeal was
The pertinent language in W. Va. Code § 17C-5-7(a) provides that an officer attempting to perform a chemical breath test must inform the driver that his refusal to submit to the secondary test finally designated will result in the revocation of his license to operate a motor vehicle in this state for a period of at least one year and up to life. (See footnote 2)
Mr. Butcher argues that
the word will, as used in W. Va. Code § 17C-5-7(a), implies a definite suspension. Therefore, he was incorrectly advised
by deputy Kastigar's use of the word may, as may implies
a discretionary suspension. Several cases from other jurisdictions have been
cited by Mr. Butcher as support for his position. For example, in State
v. Huber, 540 N.E.2d 140 (Ind. App. Ct. 1989), the defendant refused to
take a chemical breath test after the arresting officer warned him that his
driver's license may be suspended. The defendant's driver's license
was suspended; however, a trial court ordered the license restored because
the arresting officer failed to use the word will when advising
the defendant, as required by statute, regarding the suspension of his license.
The Indiana Court of Appeals upheld the trial court's decision. In doing so,
the court stated: The phrase 'may be suspended' connotes discretionary
action. Thus the advisement failed to convey the strong likelihood that suspension
of driving privileges would follow Huber's refusal to submit to a breathalyser
test. Huber, 540 N.E.2d at 142. See also Graves v.
Commonwealth, 535 A.2d 707 (Pa. 1988) (reversing suspension because officer
used the word could instead of will); Mairs v.
Department of Licensing, 854 P.2d 665 (Wash. Ct. App. 1993) (reversing
suspension because officer used the word probably instead of will);
Welch v. State, 536 P.2d 172 (Wash. Ct. App. 1975) (reversing suspension
because officer used the word could instead of will).
Conversely, the Commissioner
argues that deputy Kastigar's warning substantially complied with the requirements of the statute
and therefore the suspension of Mr. Butcher's driving license should not be
(See footnote 3) A few cases were cited by the Commissioner
to support its substantial compliance argument. For example, in
Commonwealth Dep't of Pub. Safety v. Tuemler, 526 S.W.2d 305 (Ky. Ct.
App. 1975), a driver had his license suspended for refusing to take a breathalyser
footnote 4) The driver argued that the arresting officer
informed him that chances were he would lose his license for refusing
to take the test. The driver contended that this warning was misleading, because
suspension was automatic. The appellate court ruled that the warning substantially
apprised [the driver] of the consequences of refusing to take the test.
Tuemler, 526 S.W.2d at 306. The appellate court also noted that revocation
is not necessarily 'automatic,' but is subject to an administrative hearing[.]
Id. The appellate court reinstated the suspension.
In another case cited by
the Commissioner, In re.Olien, 387 N.W.2d 262 (S.D. 1985), a driver
had his license revoked after refusing a blood test. The driver contended
on appeal that the officer mislead him by stating that refusal to take the
blood test can result in revocation of his license. The applicable
statute required warning that a license revocation shall be imposed. The Supreme Court of
South Dakota acknowledged that the statute was not literally complied with
by the arresting officer. However, the court affirmed the revocation after
finding the officer's advice substantially complied with [the statute.]
Olien, 387 N.W.2d at 264.
We are not persuaded by the substantial compliance authorities cited by the Commissioner. The pertinent language of W. Va. Code § 17C-5-7(a) is clear and unambiguous. [A] statute which is clear and unambiguous should be applied by the courts and not construed or interpreted. Carper v. Kanawha Banking & Trust Co., 157 W. Va. 477, 517, 207 S.E.2d 897, 921 (1974) (citation omitted). Under the statute, an officer making a DUI arrest must inform the arrestee that a refusal to submit to a chemical breath test will result in a license suspension.
Here, Mr. Butcher was never
informed that his license will be suspended for refusing to take
the chemical breath test. Instead, Mr. Butcher was erroneously told that his
license may be suspended. Our cases have held that [t]he
word 'may' generally . . . connotes discretion. State v. Hedrick,
204 W. Va. 547, 552, 514 S.E.2d 397, 402 (1999) (citations omitted). No discretion
existed. Mr. Butcher's license was automatically suspended when the Commissioner
received the report from deputy Kastigar. We are unable to determine from
the record what course Mr. Butcher would have taken had he been properly advised of the consequences of his refusal to take
the chemical breath test. As Mr. Butcher was unable to make an intelligent
decision because of the erroneous warning given to him, we reverse the circuit
If any person under arrest
as specified in section four of this article refuses to submit to any secondary
chemical test, the tests shall not be given: Provided, That prior to such
refusal, the person is given a written statement advising him that his refusal
to submit to the secondary test finally designated will result in the revocation
of his license to operate a motor vehicle in this state for a period of at
least one year and up to life. If a person initially refuses to submit to
the designated secondary chemical test after being informed in writing of
the consequences of such refusal, he shall be informed orally and in writing
that after fifteen minutes said refusal shall be deemed to be final and the
arresting officer shall after said period of time expires have no further
duty to provide the person with an opportunity to take the secondary test.
The officer shall within forty-eight hours of such refusal, sign and submit
to the commissioner of motor vehicles a written statement of the officer that
(1) he had reasonable grounds to believe such person had been driving a motor
vehicle in this state while under the influence of alcohol, controlled substances
or drugs; (2) such person was lawfully placed under arrest for an offense
relating to driving a motor vehicle in this state while under the influence
of alcohol, controlled substances or drugs; (3) such person refused to submit
to the secondary chemical test finally designated in the manner provided in
section four of this article; and (4) such person was given a written statement
advising him that his license to operate a motor vehicle in this state would
be revoked for a period of at least one year and up to life if he refused
to submit to the secondary test finally designated in the manner provided
in section four of this article. The signing of the statement required to
be signed by this section shall constitute an oath or affirmation by the person
signing such statement that the statements contained therein are true and
that any copy filed is a true copy. Such statement shall contain upon its
face a warning to the officer signing that to willfully sign a statement containing
false information concerning any matter or thing, material, or not material,
is false swearing and is a misdemeanor. Upon receiving the statement the commissioner
shall make and enter an order revoking such person's license to operate a
motor vehicle in this state for the period prescribed by this section.
For the first refusal to submit to the designated secondary chemical test, the commissioner shall make and enter an order revoking such person's license to operate a motor vehicle in this state for a period of one year. If the commissioner has previously revoked the person's license under the provisions of this section, the commissioner shall, for the refusal to submit to the designated secondary chemical test, make and enter an order revoking such person's license to operate a motor vehicle in this state for a period of ten years: Provided, That the license may be reissued in five years in accordance with the provisions of section three, article five-a of this chapter. If the commissioner has previously revoked the person's license more than once under the provisions of this section, the commissioner shall, for the refusal to submit to the designated secondary chemical test, make and enter an order revoking such person's license to operate a motor vehicle in this state for a period of life: Provided, That the license may be reissued in ten years in accordance with the provisions of section three, article five-a of this chapter. A copy of each such order shall be forwarded to such person by registered or certified mail, return receipt requested, and shall contain the reasons for the revocation and shall specify the revocation period imposed pursuant to this section. No such revocation shall become effective until ten days after receipt of the copy of such order. Any person who is unconscious or who is otherwise in a condition rendering him incapable of refusal, shall be deemed not to have withdrawn his consent for a test of his blood, breath or urine as provided in section four of this article and the test may be administered although such person is not informed that his failure to submit to the test will result in the revocation of his license to operate a motor vehicle in this state for the period provided for in this section.
A revocation hereunder shall run concurrently with the period of any suspension or revocation imposed in accordance with other provisions of this code and growing out of the same incident which gave rise to the arrest for driving a motor vehicle while under the influence of alcohol, controlled substances or drugs and the subsequent refusal to undergo the test finally designated in accordance with the provisions of section four of this article.