DONALD B. HANCOCK,
Plaintiff Below, Appellee
v.
JANE L. CLINE, COMMISSIONER,
DEPARTMENT OF TRANSPORTATION,
FOR THE STATE OF WEST VIRGINIA,
Defendant Below, Appellant
___________________________________________________
Appeal from the Circuit Court of Kanawha County
Honorable Tod J. Kaufman, Judge
Civil Action No. 91-Misc-284
REVERSED
___________________________________________________
Mario J. Palumbo
Andrew F. Tarr
Jennifer E. Blair
Charleston, West Virginia
Attorneys for the Appellant
No Appearance for Appellee
This Opinion was delivered PER CURIAM.
"'All time periods provided in the West Virginia Code for
eligibility for reinstatement of a drivers license shall be
calculated from the date of receipt by the Commissioner of all
operator's and chauffeur's licenses pursuant to the suspension or
revocation order entered.' 7 West Virginia Code of State Rules §
91-16-4.1 (eff. April 2, 1986)." Syl. pt. 3, Nobles v.
Sidiropolis, 182 W. Va. 217, 387 S.E.2d 122 (1989).
Per Curiam:
The appellant, Jane L. Cline, Commissioner of the West
Virginia Department of Motor Vehicles, appeals from the June 14,
1991 order of the Circuit Court of Kanawha County, reinstating the
driver's license of the appellee, Donald B. Hancock. The
appellee's driver's license had been revoked for a period of one
year when the appellee refused to undergo a breathalyzer
examination upon his arrest for driving under the influence of
alcohol. The revocation period did not begin until the appellee's
license was surrendered to the Department of Motor Vehicles (DMV).
The trial court found that the revocation period began to run prior
to the surrender of the appellee's license to the DMV, and thus
reinstated the appellee's driver's license. Because this finding
is contrary to the requirements of W. Va. Code, 17B-3-9 [1988] and
7 West Virginia Code of State Rules, § 91-16-4.1 (eff. April 2,
1986), we reverse the order of the trial court.
In this case the appellee was arrested for driving under
the influence of alcohol on February 19, 1990 in South Charleston.
The record shows that the appellee surrendered his driver's license
to the arresting officer during his arrest, but that the appellee
then attempted to resist arrest. During the ensuing struggle
between the arresting officer and the appellee, the appellee's
driver's license was lost. Apparently, the appellee's driver's
license was found several days later by an unknown party, and
returned to either the appellee or his mother.
On March 13, 1990, the appellee was sent a form letter
from the DMV notifying him that his license had been revoked for
"one year and thereafter until all costs assessed as a result of
any revocation hearing have been paid." The form letter notified
the appellee of his responsibility to surrender his driver's
license to the DMV. It stated:
[I]n accordance with the provisions of Chapter
17C, Article 5, Section 7 of the Code of West
Virginia, your license to operate a motor
vehicle in this State is revoked and any West
Virginia driver's license issued to you must
be returned to this department within ten (10)
days after receipt of this ORDER.
. . . .
IF YOU FAIL TO RETURN YOUR DRIVER'S LICENSE OR
TO REQUEST A HEARING within the ten (10) day
period, an ORDER will be delivered to the
STATE POLICE to secure your driver's license.
You will then be required to pay an additional
$50.00 PENALTY FEE.
The appellee did not surrender his driver's license
within the ten day period. Nor did the appellee seek an
administrative hearing to stay the order of the DMV. Therefore, on
May 1, 1990, a police officer was sent to the appellee's residence
to secure the driver's license. The appellee did not inform the
officer that the driver's license had been returned to him. He
signed a note stating only that he had surrendered his driver's
license at the time of his arrest.
At one point either before or after the attempt to secure
the appellee's driver's license by the police officer, the appellee
or his mother gave the driver's license to the appellee's lawyer.
At a judicial proceeding in September of 1990, apparently regarding
criminal charges facing the appellee in regard to his arrest for
driving under the influence of alcohol, the arresting officer
observed the appellee's driver's license in the possession of the
appellee's lawyer. The arresting officer advised the lawyer to
surrender the appellee's license to the DMV. The lawyer promptly
complied with this advice.
The DMV received the appellee's driver's license on
September 17, 1990. Thereafter, the DMV revoked the appellee's
driver's license until September 17, 1991, and until the appellee
paid $65.00 in fees.
On May 21, 1991, the appellee sought a writ of mandamus
and a writ of prohibition to issue against the Commissioner of the
DMV in the Circuit Court of Kanawha County. The appellee contended
before the trial court that because there had been no
allegation, information, or proof that the
operator's license of the [appellee] was
utilized in any way between the dates of
February 19, 1990 and September 17, 1990 and
was, in fact, only in the possession of the
[appellee] for a matter of hours from and
after its discovery on the streets of South
Charleston until the same were [sic] tendered
to his counsel and subsequently maintained by
his counsel until tendered to the Department
of Motor Vehicles on September 17, 1990;
that the revocation period should have begun to run on March 13,
1990, the date the DMV informed the appellee his driver's license
had been revoked. The appellee sought to compel the DMV to
reinstate and return his driver's license and to prohibit the DMV
from retaining the same.
On June 14, 1991, the Circuit Court of Kanawha County
granted the relief sought by the appellee. In granting the relief,
the trial court stated:
The Court finds that the facts and
circumstances of this case are such that the
[DMV] has as a result of said facts and
circumstances discharged all criminal and
civil penalties imposed by law relating to the
underlying criminal offense committed by the
[appellee] in this matter inasmuch as the
[appellee] has discharged his criminal
sentence and further from the uncontradicted
evidence the [appellee] has not operated a
motor vehicle on the highways of the State of
West Virginia from and after the date of his
arrest of February 19, 1990, when the Court
finds that the [appellee] did tender his
driver's license to [the arresting officer].
In granting the relief herein, and making
the findings herein by the Court, the Court is
not passing upon the statutes and regulations
of the State of West Virginia but is finding
as an uncontradicted matter of fact and as a
matter of law that the public policy of the
State of West Virginia has been complied with
by the [appellee] and that the [appellee] has
discharged all criminal and civil and
administrative requirements as provided by
law.
This appeal followed.
Upon appeal to this Court, the DMV contends that the
trial court committed reversible error when it reinstated the
appellee's driver's license prior to September 17, 1991. For the
following reasons, we agree.
The appellee does not challenge the DMV's finding that he
refused to undergo a breathalyzer examination upon his arrest for
driving under the influence of alcohol. W. Va. Code, 17C-5-7
[1986] states, in pertinent part: "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." The sole
question before this Court is determination of the date the
revocation period began.
An argument similar to the one advanced by the appellee
was advanced in Nobles v. Sidiropolis, 182 W. Va. 217, 387 S.E.2d
122 (1989). In that case we noted that: "West Virginia Code §
17B-3-9 [1988] directs that '[t]he Department, upon suspending or
revoking a license shall require that such license shall be
surrendered to and be retained by the Department. . . ." 182
W. Va. at 220, 387 S.E.2d at 125. We also found that 7 West
Virginia Code of State Rules § 91-16-4.1 (eff. April 2, 1986)
requires that revocation periods not begin to run, for purposes of
reinstating a revoked license, until the date a driver's license
has been surrendered to the DMV. In syllabus point 3 we stated:
'All time periods provided in the West
Virginia Code for eligibility for
reinstatement of a drivers license shall be
calculated from the date of receipt by the
Commissioner of all operator's and chauffeur's
licenses pursuant to the suspension or
revocation order entered.' 7 West Virginia
Code of State Rules § 91-16-4.1 (eff. April 2,
1986).
In this case the appellee clearly understood his
obligation to surrender his driver's license to the DMV from March
13, 1990 onward. Instead, at some point, he gave possession of his
driver's license to his lawyer. He did not surrender his driver's
license, or request his lawyer to surrender his driver's license,
until September 17, 1990. Therefore, the one-year time period
provided for in W. Va. Code, 17C-5-7 [1988] for eligibility to
reinstate the appellee's driver's license must be calculated from
September 17, 1990, the date the Commissioner of the DMV received
the appellee's driver's license pursuant to the March 13, 1990
revocation order. The order of the trial court reinstating the
appellee's driver's license on June 14, 1991 must be reversed, and
the appellee's driver's license must be revoked for the remainder
of the one-year period.
Based upon the foregoing, the June 14, 1991 order of the
Circuit Court of Kanawha County is reversed.