1 

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS 

Robert C. Kroner, 

Plaintiff Below, Petitioner

vs.) No. 21-0997 (Berkeley County CC-02-2021-AA-3) 

Everett Frazier, Commissioner, 

West Virginia Division of Motor Vehicles, 

Defendant Below, Respondent 

MEMORANDUM DECISION 

 

Petitioner Robert C. Kroner appeals the order of the Circuit Court of Berkeley County, 

West Virginia, entered on November 11, 2021, that affirmed the April 15, 2021, order of the Office 

of Administrative Hearings (“OAH”) revoking petitioner’s driver’s license and commercial 

driver’s license for driving a motor vehicle in West Virginia while under the influence of alcohol, 

controlled substances, and/or drugs (“DUI”).1 Everett Frazier, Commissioner of the West Virginia 

Division of Motor Vehicles (“DMV”), responds in support of the circuit court order.2 Upon our 

review, we determine that oral argument is unnecessary and that a memorandum decision 

affirming the circuit court’s order is appropriate. See W. Va. R. App. P. 21. 

On March 12, 2020, the investigating officer arrested petitioner for DUI. The “West 

Virginia Driver’s Information Sheet” and documents submitted to the DMV indicate that the 

investigating officer initiated a traffic stop after witnessing the petitioner’s car crossing the solid 

white fog line and because the driver side brake light was not functioning. After observing 

bloodshot and glassy eyes and detecting the odor of alcohol, the investigating officer questioned 

petitioner, who admitted to consuming beer with dinner that night. The investigating officer 

administered standardized field sobriety tests that provided impairment detection clues and 

administered a preliminary breath test prior to arresting the petitioner. After being transported to 

the Jefferson County Sheriff’s Office, petitioner received the “West Virginia Implied Consent 

Statement” and underwent the designated secondary chemical test, which indicated a blood alcohol 

concentration level of .114% by weight. 

1 Petitioner appears by counsel Bradley J. Wright. Respondent appears by Attorney General 

Patrick Morrisey and Assistant Attorney General Elaine L. Skorich. 

2 Respondent was identified below as the Department of Transportation, however, Everett 

Frazier, Commissioner of the West Virginia Division of Motor Vehicles, is identified herein as the 

appropriate respondent in this matter. 

FILED

September 15, 2023

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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On April 16, 2020, the DMV sent petitioner an order of revocation notice for DUI. 

Petitioner filed a written objection and requested an administrative hearing on May 6, 2020. After 

several continuances, on February 2, 2021, the OAH held a hearing. The DMV moved for 

admission of the certified DMV revocation file,3 including the “West Virginia DUI Information 

Sheet” and criminal complaint completed by the investigating officer, and it was admitted into 

evidence (“DMV Exhibit 1”). The investigating officer did not appear at the hearing. The petitioner 

appeared at the hearing but did not testify. The OAH also entered into evidence the dismissal of 

petitioner’s related criminal case, in which the prosecutor listed the reason for dismissal as

“prosecutorial discretion – Giglio issue.”4 No other evidence was provided with regard to the 

criminal dismissal, although petitioner’s counsel and the hearing examiner generally discussed at 

the hearing that the investigating officer was under investigation for false swearing in a criminal 

complaint. On April 15, 2021, the OAH entered its final order affirming the DMV’s DUI 

revocation order. On May 5, 2021, petitioner filed an appeal with the Circuit Court of Berkeley 

County, West Virginia, and filed a motion for stay of the revocation order. After a hearing on the 

motion to stay, it was denied by order dated May 28, 2021. 

On November 11, 2021, the circuit court entered an order affirming the OAH’s final order. 

The circuit court found that the investigating officer was not called to testify by either petitioner 

or the DMV. Further, the circuit court found that there was no evidence presented related to the 

meaning of the notation of a “Giglio issue” referenced in the dismissal of the criminal complaint, 

only a generalized proffer. Given the general rule that dismissal of the underlying criminal case is 

not considered in an administrative proceeding before the OAH for license revocation set out in 

Syllabus Point 4 of Miller v. Epling, 229 W. Va. 574, 729 S.E.2d 896 (2012), the circuit court 

found the vague notation and generalized proffer insufficient to rebut the presumption of accuracy 

of the DMV’s administrative record, DMV Exhibit 1, and, specifically, the information provided 

by the investigating officer’s report and statement in the “West Virginia DUI Information Sheet.” 

The circuit court also determined that the OAH findings were not arbitrary and capricious and the 

3 The agency file is provided in the appendix record and includes the order of revocation, 

the “Intox EC/IR-II” test slip, the “West Virginia DUI Information Sheet-DMV-314,” the criminal 

complaint, the “Court Disposition Reporting” form, the “Uniform Traffic Citation,” an “Implied 

Consent” form, an envelope from the investigating officer to DMV, a driver history inquiry, and 

the order of disqualification for petitioner’s commercial driver’s license. 

4 It is undisputed that this is a shorthand reference to Giglio v. United States, 405 U.S. 150 

(1972). In Giglio, the government was responsible for false testimony by one of its witnesses even 

though the trial prosecutor was unaware of the falsity. There, the critical witness had been 

promised immunity in exchange for his testimony by an assistant district attorney and denied under 

oath that he had received such an offer. The government’s failure to correct this testimony that 

called into question witness credibility was found to violate constitutional due process rights and 

require a new trial. Id. at 154-55; see generally In re Investigation of W. Va. State Police Crime 

Lab’y, Serology Div., 190 W. Va. 321, 438 S.E.2d 501 (1993) (discussing Giglio and stating that 

State bears responsibility for false evidence); see also W. Va. Trial Ct. R. 32.02(a) (providing that 

State shall disclose exculpatory evidence to defendants in criminal cases pursuant to Giglio and 

Brady v. Maryland, 373 U.S. 83 (1963)). 
3

Giglio issue was not ignored by the OAH. It also concluded that the OAH properly reconciled the 

evidence and provided a reasoned and articulate decision capable of being reviewed regarding the 

Giglio issue. Finally, the circuit court denied petitioner’s request for a hearing to develop 

additional evidence, finding that there was sufficient opportunity to do so during the OAH hearing.

Petitioner appeals this order. 

Petitioner argues before this Court that the circuit court erred when it concluded that he 

failed to rebut the presumption of accuracy afforded the DUI information sheet, and when it 

concluded that a “Giglio issue” with the State’s only witness was not enough to rebut that 

presumption. He also argues that the circuit court erred in ruling that the OAH findings regarding 

the DUI information sheet were sufficient for review and supported by evidence on the record as 

a whole. This Court reviews the order on appeal under the following standard: 

“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). Syl. Pt. 1, Dale v. Odum, 233 W. Va. 601, 760 S.E.2d 415 (2014).

Syl. Pt. 1, Frazier v. Talbert, 245 W. Va. 293, 858 S.E.2d 918 (2021).

We agree with the circuit court that, in this case, the vague reference to a Giglio issue in 

the related criminal case was insufficient to rebut the presumption of accuracy afforded DMV 

Exhibit 1 before the OAH. The OAH properly admitted into evidence DMV Exhibit 1, and, in the

administrative proceeding, it was entitled to a rebuttable presumption of accuracy. See Frazier v. 

Fouch, 244 W. Va. 347, 353, 853 S.E.2d 587, 593 (2020) (discussing caselaw related to statutory 

obligation of OAH to receive DMV file and the rebuttable presumption as to its accuracy); Crouch 

v. W. Va. Div. of Motor Vehicles, 219 W. Va. 70, 76 n.12, 631 S.E.2d 628, 634 n.12 (2006) (noting 

that the fact that a document is admissible under a statute does not preclude a challenge to the 

contents of the document during the hearing and that instead it merely creates a rebuttable 

presumption as to its accuracy). The general rule for OAH proceedings on license revocations is 

that the dismissal of the underlying criminal case has no effect on an administrative proceeding 

for license revocation. See Syl. Pt. 4, Miller v. Epling, 229 W. Va. 574, 729 S.E.2d 896 (2012). In 

this case, based on petitioner’s argument, the OAH admitted evidence of the dismissal of the 

related criminal case. While there was a vague reference to Giglio in the dismissal of petitioner’s 

criminal case, there was no evidence or testimony explaining that reference and its application to 

petitioner’s specific case. Petitioner had the opportunity to put on evidence, but he did not seek to 

call the investigating officer,

5 and, based on our review of the appendix record, he did not provide 

5 Although petitioner points to a statement by the OAH hearing examiner that he felt it was 

unlikely the investigating officer would appear even if an enforcement action were undertaken, 

that statement was made during the hearing. Petitioner does not indicate that he subpoenaed or 

attempted to secure the investigating officer’s testimony prior to the hearing, and he did not make 

a request related to the investigating officer during the administrative hearing, or seek to reopen 
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other testimony or evidence to contradict any factual statements within the DUI information sheet

or provide information regarding any Giglio issue. In addition, we agree with the circuit court that 

the OAH findings were sufficient for review and supported by evidence in the appendix record as 

a whole. The OAH noted petitioner’s argument but found no details were provided except that the 

investigating officer was under investigation for false swearing on a criminal complaint. The OAH 

also noted that petitioner did not testify in rebuttal of DMV Exhibit 1. As such, we agree with the 

circuit court that the OAH findings demonstrate that it did not ignore the Giglio issue and that the 

findings regarding the accuracy of DMV Exhibit 1 are sufficient for meaningful review and

supported by the appendix record as a whole. We find no error in the decision. 

For the foregoing reasons, we affirm the circuit court’s November 11, 2021, order

affirming the order of revocation issued by the DMV. 

Affirmed.

ISSUED: September 15, 2023

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker

Justice Tim Armstead

Justice John A. Hutchison

Justice C. Haley Bunn

DISSENTING:

Justice William R. Wooton

Wooton, Justice, dissenting:

I dissent to the majority’s resolution of this case. I would have set this case for oral

argument to thoroughly address the error alleged in this appeal. Having reviewed the parties’ briefs 

and the issues raised therein, I believe a formal opinion of this Court was warranted, not a 

memorandum decision. Accordingly, I respectfully dissent.

the matter for that evidence at the circuit court due to an irregularity in procedure based on the 

hearing examiner’s remarks under West Virginia Code § 29A-5-4(f).