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Victory in the West Virginia Supreme Court

On May 22, 2012 I had the privilege and honor of presenting oral argument before the Supreme Court of Appeals of West Virginia in the matter of Joe E. Miller, Commissioner of the West Virginia Division of Motor Vehicles, Petitioner, v. Mark Thompson, Respondent. Slip No. 11-0891. (*Mr. Thompson’s case was consolidated with another case, Joe E. Miller, Commissioner of the West Virginia Division of Motor Vehicles, Petitioner, v. Justin Brant Wood, Respondent.) These cases came to the high court on respective appeal by the DMV from the Circuit Court of Kanawha County.

On June 18, 2012, the West Virginia Supreme Court affirmed the ruling of the Kanawha County Circuit Court, denying the DMV’s appeal.

The central issue for Supreme Court of Appeals of West Virginia was whether or not a nolo contendre plea in the criminal court is a “conviction” for purposes of barring a citizen from seeking his or her right to an administrative license hearing, on a second or subsequent offense suspension issue, prior to taking away the citizen’s driver’s license. The WV DMV was relying upon a section of our Interlock statute, which mandates interlock installation in the citizen’s vehicle if he/she is “convicted” in the criminal court, or conversely, loses his/her license administrative hearing, having once previously been convicted or suspended in the preceding ten (10) years.

In syllabus point 4, the Supreme Court stated: “In determining what constitutes a conviction for purposes of applying West Virginia Code $17C-5A-1(a) (2010), a person is convicted when the person enters a plea of guilty or is found guilty by a court or jury. Pursuant to West Virginia Code $17C-5A-1a(e) (2010), a plea of nolo contendre (no contest) does not constitute a conviction for purposes of W.Va. Code $17C-5A-1a(a) (2010) except where the person holds a commercial driver’s license or operates a commercial vehicle. Accordingly, a person entering a nolo contendre (no contest) plea to a second or subsequent offense defined in W.Va. Code $17C-5-2 (2010) is entitled to an administrative license revocation hearing before the Office of Administrative Hearings.”

Counsel for the DMV was attempting to argue that the Interlock is mandatory on a second or subsequent offense and that they were compelled by the Interlock statute to take action against the citizen’s driver’s license based upon a nolo contendre plea in the criminal court. The Supreme Court said yes, this is correct. However, it is only mandatory if you actually lose your license administrative hearing and/or are “convicted” in the criminal court. And for purposes of a citizen’s right to a license administrative hearing in which to contest the suspension of his/her driver’s license, a no contest plea is not a conviction.

The high court opined in syllabus point 5: “In the construction of a legislative enactment, the intention of the legislature is to be determined, not from any single part, provision, section, sentence, phrase or word, but rather from a general consideration of the act or statute in its entirety.” Syllabus point 1, Parkins v Londeree, 146 W.Va. 1051, 124 S.E.2d 471 (1962).

Over the years, the West Virginia Department of Motor Vehicles, and that of their legal counsel, have made every effort possible to take away a citizen’s due process rights at a license administrative hearing from attempting to lobby the WV legislature to take out of the license administrative code the DMV’s duty to prove the arrest of the citizen was based upon a lawful arrest in order to uphold a suspension of the citizen’s license, to ridiculously lax to non-existent application of the rules of evidence or procedure, through the above attempt to take a citizen’s right to a license administrative hearing based upon prior entry in the criminal court of a nolo contendre plea.

The fight for due process for all citizens accused at a license administrative hearing in West Virginia continues on. But, it sure felt good to get this one!

The full case opinion can be read here: http://www.courtswv.gov/supreme-court/docs/spring2012/11-0815and11-0891.pdf

About Harley Wagner

Harley Wagner
Recently Named Best DUI attorney in West Virginia There is hope after a DUI arrest. If you are looking for somewhere to turn for help with your WV DUI, look no further. DUI lawyer Harley Wagner is here to put the pieces of your life back together. Speak with him today about how to build a defense for your DUI case. View Full Bio

If you would like to contact the author, please visit: http://www.westvirginiaduilawyers.com/


2 comments

  1. I blew 0.09, one point over. They said the court dropped it down to reckless driving but dmv picked it up. please help.

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