662 S.E.2d 508
JUSTICE ALBRIGHT concurs and reserves the right to file a separate opinion.
The respondent below and appellant herein, Joseph Cicchirillo, Commissioner of the West Virginia Division of Motor Vehicles (hereinafter DMV), appeals from an order entered February 23, 2007, by the Circuit Court of Kanawha County. By that order, the circuit court reversed a DMV order that revoked the driver's license of the petitioner below and appellee herein, Jeffrey Carpenter (hereinafter Mr. Carpenter), for driving under the influence of alcohol (hereinafter DUI). On appeal to this Court, the DMV argues that the circuit court's reinstatement of Mr. Carpenter's license was in error. Specifically, the DMV argues that an arresting officer's noncompliance with the forty-eight hour reporting period does not deprive the DMV of its jurisdiction to consider revocation of a driver's license. Based upon the parties' arguments, the record designated for our consideration, and the pertinent authorities, we reverse and remand the decision by the circuit court.
there are no statutory provisions that authorize the West Virginia
Division of Motor Vehicles, or its employees, to assist the
arresting officer in the revocation process. Accordingly, the
administrative record contains no evidence to refute the
Petitioner's contention that the Division of Motor Vehicles
failed to be fair and impartial to the Petitioner by, in effect,
assisting the arresting officer to submit the proper paperwork to
aid in the revocation process. Thus, the Court finds that the
Division's actions in this matter violate the Petitioner's due
process right to a fair and impartial hearing tribunal. The Court
further finds that these actions warrant reversal of the
Commissioner's Final Order.
Accordingly, the circuit court reversed the underlying order that revoked Mr. Carpenter's driver's license. The DMV now appeals to this Court asking for reinstatement of the order revoking Mr. Carpenter's driver's license.
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). Moreover, because the circuit court altered the decision by the underlying agency, we are guided by the principle that [i]n cases where the circuit court has amended the result before the administrative agency, this Court reviews the final order of the circuit court and the ultimate disposition by it of an administrative law case under an abuse of discretion standard and reviews questions of law de novo. Syl. pt. 2, Muscatell, id. Mindful of these applicable standards, we now consider the substantive issues raised herein.
Once a person has been arrested for DUI, there are separate statutory mandates imposed on both the officer and the DMV. In regard to the arresting officer's duties, pursuant to W. Va. Code § 17C-5A-1 (1994) (Repl. Vol. 1996),
(b) [a]ny law-enforcement officer arresting a person for an offense described in section two [§ 17C-5-2], article five of this chapter or for an offense described in a municipal ordinance which has the same elements as an offense described in said section two of article five 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 signing of the statement required to be signed by this subsection shall constitute an oath or affirmation by the person signing the statement that the statements contained therein are true and that any copy filed is a true copy. The 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.
The distinct duties of the DMV are also found in W. Va. Code 17C-5A-1, (See footnote 7) as follows:
(c) If, upon examination of the written statement of the officer and the test results described in subsection (b) of this section, the commissioner shall determine that a person was arrested for an offense described in section two, article five of this chapter or for an offense described in a municipal ordinance which has the same elements as an offense described in said section two of article five, and that the results of any secondary test or tests indicate that at the time the test or tests were administered the person had, in his or her blood, an alcohol concentration of ten hundredths of one percent or more, by weight, or at the time the person was arrested he or she was under the influence of alcohol, controlled substances or drugs, the commissioner shall make and enter an order revoking the person's license to operate a motor vehicle in this state. . . . A copy of the order shall be forwarded to the person by registered or certified mail, return receipt requested, and shall contain the reasons for the revocation or suspension and describe the applicable revocation or suspension periods provided for in section two [§ 17C-5A-2] of this article. No revocation or suspension shall become effective until ten days after receipt of a copy of the order.
Thus, while the arresting officer has a duty to report the arrest to the DMV within forty-eight hours of the arrest, the DMV has the duty to revoke a person's privilege to drive a car if evidence of a violation has occurred. In this case, the DMV did not have the required Statement of Arresting Officer, and asked the officer to resubmit his statement to go along with the already-received Implied Consent Statement. The DMV waited until after receipt of the proper Statement of Arresting Officer, which occurred within three weeks of the arrest, before revoking Mr. Carpenter's driver's license.
The issue in this case regarding the interplay of the officer's mandates and the DMV's proceedings has been directly decided by this Court. We previously have held 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 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.
Syl. pt. 1, In re Burks, 206 W. Va. 429, 525 S.E.2d 310 (1999). The Burks case decided the same issue that we currently have before us, with the exception that in the present case, the DMV acted on its own behalf to ask the officer to resubmit a Statement of Arresting Officer. In Burks, the arresting officer failed to mail the Statement of Arresting Officer within the forty-eight hour time limit imposed by the statute, but he did submit it in at a later time without prompting by the DMV. This Court decided 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. Burks, 206 W. Va. at 432, 525 S.E.2d at 313.
While this pronouncement is clear that an officer's failure at his or her duty
to comply with the statutory mandates does not deprive the DMV of fulfilling its own
obligations, we also find further support in other cases decided by this Court. For example,
in Dolin v. Roberts, 173 W. Va. 443, 317 S.E.2d 802 (1984), the arresting officer submitted
his Statement of Arresting Officer to the Commissioner within the required time frame, but
failed to fulfill his mandatory duty to provide the results of a secondary chemical test. (See footnote 8) After
the DMV returned the statement, the officer resubmitted it with the test results attached.
Granting a writ of prohibition, the Circuit Court of Boone County found the twenty-week
delay between Dolin's arrest and the subsequent suspension of his driving privileges violated
his procedural due process rights. On appeal, this Court concluded that the time requirements
for filing the arresting officer's statement applied only to the officer, and had no application
to the Commissioner. Further, we concluded that a delay of twenty weeks between the arrest
and the revocation was reasonable because there was no showing of prejudice.
Similarly, in the subsequent case of Coll v. Cline, 202 W. Va. 599, 505 S.E.2d 662 (1998), the arresting officer failed to attach the breathalyzer results when he submitted his Statement of Arresting Officer to the DMV. Based on this preliminary report, the DMV revoked the petitioner's license to drive. The circuit court reversed the revocation, finding that the DMV's revocation order was unlawful and outside its jurisdiction because the breathalyzer results were not attached to the Statement of Arresting Officer. On appeal, this Court determined that the DMV had the authority and jurisdiction to consider the license revocation and found that the actual revocation was error, but that it was harmless error. This Court reasoned that while a secondary chemical test is not required, once it has been performed, the officer is required to forward it to the DMV. (See footnote 9) More important to the analysis in this case, however, was the acknowledgment of this Court that the DMV Commissioner has the ability to cure a defect in paperwork. See Coll v. Cline, 202 W. Va. at 610, 505 S.E.2d at 673 (In the case sub judice, a secondary chemical test was administered; however, the arresting officer failed to submit the test results as required by W. Va. Code §17C-5A- 1(b). Without the test results, the Commissioner lacked the evidentiary foundation upon which to base her revocation of Coll's license. While she could have attempted to correct the defect by returning the officer's written statement, see, e.g., Dolin v. Roberts, she failed to do so in this instance.). This Court went on to conclude, however, that the error did not require the circuit court's reversal of the DMV revocation because the error was harmless and not prejudicial.
Based on the foregoing, the Burks Court went on to apply Coll and Dolin in
finding that technical and nonprejudicial noncompliance with reporting time requirements
that are imposed on a law enforcement officer [is] not a jurisdictional impediment to the
DMV taking action regarding a license suspension. In re Burks, 206 W. Va. at 432, 525
S.E.2d at 313 (internal footnote omitted). Thus, by application to our present case, the minor
delay in the receipt of the Statement of Arresting Officer did not divest the DMV of its duty
to investigate and consider license revocation once it received the requested paperwork. See Syl. pt. 1, Dolin, 173 W. Va. 443, 317 S.E.2d 802 (Under West Virginia Code § 17C-5A-
1(c) (1983 Supp.), there is no mandatory time limit within which the Commissioner of the
Department of Motor Vehicles must enter a license suspension order pursuant to an affidavit
from an arresting officer in a drunk driving case.).
Returning to the controlling language in Burks, we only need to determine if the failure of the officer to submit the Statement of Arresting Officer to the DMV within forty-eight hours resulted in actual prejudice to the driver as a result of such failure.Recognizing that [a] driver's license is a property interest which requires the protection of this State's Due Process Clause before its suspension can be obtained under the implied consent law. W. Va. Code, 17C-5a-1, et seq., Syl. pt. 1, Jordan v. Roberts, 161 W. Va. 750, 246 S.E.2d 259 (1978), the Jordan Court relied on the test for actual prejudice found in North v. Board of Regents, 160 W. Va. 248, 257, 233 S.E.2d 411, 417 (1977), as follows: [t]he standard of due process . . . require[s] the following rights: a formal written notice of charges; sufficient opportunity to prepare to rebut the charges; opportunity to have retained counsel at any hearings on the charges, to confront his accusers, and to present evidence on his own behalf; an unbiased hearing tribunal; and an adequate record of the proceedings.
In the present case, Mr. Carpenter was provided ample notice of the charges and was afforded sufficient opportunity to rebut the charges when he exercised his right to a hearing with counsel present. Additionally, his counsel proceeded to cross-examine the arresting officer and present evidence on his behalf, in front of an unbiased hearing examiner where a record was made of the proceedings. Thus, Mr. Carpenter was not subjected to actual prejudice when the DMV received the Statement of Arresting Officer three weeks after the arrest and started the revocation process, which resulted in a suspension of Mr. Carpenter's privilege to drive.