STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Steven O. Dale, Acting Commissioner FILED 

Of the West Virginia Division of Motor Vehicles, April 10, 2014 

RORY L. PERRY II, CLERK 

Petitioner Below, Petitioner SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

vs) No. 13-0429 (Kanawha County 12-AA-130) 

Tammy Reed,
 

Respondent Below, Respondent
 

MEMORANDUM DECISION 

Petitioner Steven O. Dale, Acting Commissioner of the Division of Motor 

Vehicles (hereinafter “DMV”), appeals the Circuit Court of Kanawha County’s March 

18, 2013, order affirming the Office of Administrative Hearing’s (hereinafter “OAH”) 

reversal of a portion of respondent’s (hereinafter “Ms. Reed”) driver’s license revocation. 

Petitioner asserts that the circuit court erred in 1) failing to give evidentiary value to 

documentary evidence establishing that implied consent requirements were met; and 2) 

imposing a non-existent duty on the DMV to prove that Ms. Reed understood the implied 

consent law. 

The Court has considered the parties’ briefs and the record on appeal. The 

facts and legal arguments are adequately presented. Upon consideration of the standard 

of review, the briefs, and the record presented, the Court finds that the findings of fact of 

the circuit court are clearly wrong. As more fully explained below, the Court finds that 

the circuit court disregarded this Court’s holdings regarding the proper weight to be given 

documentary evidence in a drivers’ license revocation proceeding and further imposed a 

non-existent requirement to sustain an implied consent revocation. Accordingly, this 

case satisfies the “limited circumstances” requirement of Rule 21(d) of the Rules of 

Appellate Procedure and is appropriate for a memorandum decision rather than an 

opinion. 

In the early morning hours of September 4, 2010, employees of a Go-Mart 

in Mercer County notified Deputy G. C. Paitsel (hereinafter “Deputy Paitsel”) of the 

Mercer County Sheriff’s Department that Ms. Reed had just left the Go-Mart and 

appeared to be intoxicated. Deputy Paitsel observed Ms. Reed make a left turn without 

signaling and turn into an automatic car wash the wrong direction. Deputy Paitsel 

observed Ms. Reed unsteadily exit her vehicle, stagger as she walked toward him, 

smelling of alcohol, with blood shot eyes and slurred speech. Ms. Reed was rude, 

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belligerent, and defiant; Deputy Paitsel observed empty containers of alcohol in her 

vehicle. He placed her under arrest and transported her to the Bluefield City Police 

Department where he administered three field sobriety tests which she failed. Deputy 

Paitsel read Ms. Reed the implied consent statement required by West Virginia Code § 

17C-5-7(a) (2010) warning her that refusal to take a secondary chemical test would result 

in a revocation of her license for 45 days to life.1 The DUI Information Sheet completed 

by Deputy Paitsel indicated that he provided Ms. Reed a written copy of the implied 

consent statement as well.2 Ms. Reed refused the Breathalyzer test. 

Based on the Statement of the Arresting Officer, the DMV revoked Ms. 

Reed’s license for six months for driving under the influence and one year for the implied 

consent violation, to run concurrently. At the hearing before the OAH, Ms. Reed argued 

that the evidence presented by the DMV was insufficient to sustain the implied consent 

revocation because there was no evidence presented 1) that Ms. Reed was given a written 

statement of the implied consent law; and 2) that she understood the implied consent law. 

With regard to the written copy of the implied consent statement, Ms. Reed argued that 

Deputy Paitsel did not testify that he gave her a copy and that no copy of the written 

implied consent statement was in the DMV’s file.3 Ms. Reed further noted that Deputy 

1 During his narrative testimony, Deputy Paitsel stated, “I read her the implied consent and then 

asked her if she wished to take the Breathalyzer.” At no point did he testify, nor was he directly 

asked, whether he gave her a written copy of the implied consent statement as well. At most, 

Deputy Paitsel was asked if he had a copy of the implied consent with him, as none appeared in 

the DMV’s administrative file. See n. 3, infra. Ms. Reed did not testify; therefore, there was no 

evidence presented that Deputy Paitsel did not provide her a copy. 

2 The DUI Information Sheet contains a check-marked box which states “IMPLIED CONSENT 

READ AND COPY PROVIDED TO SUBJECT.” (emphasis added). The DUI Information Sheet 

is signed by Deputy Paitsel and contains the following warning: “The signing of this statement 

constitutes an oath or affirmation that the statements are true and that any copy filed is a true 

copy. Be advised 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.” 

3 Deputy Paitsel testified as follows: 

Q.	 On the breath test, operational check list you marked off that the implied consent 

was read and a copy provided to the subject. Do you have a copy of that, because 

none has been filed as far as the implied consent form that you say you provided 

to her? 

A.	 I turn everything in. I’m not sure. I did not bring a copy with me, no. 

Q.	 The court may correct me if I’m wrong, but I don’t believe there is a copy of the 

implied consent in the file. At least I didn’t get one. 

A.	 I don’t see the report. 

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Paitsel had testified that he could not recall if Ms. Reed expressed understanding of the 

implied consent law.4 The OAH agreed that the absence of a file copy of the written 

implied consent statement, along with the absence of evidence that she understood the 

warning, warranted reversal of the implied consent revocation; the DUI revocation was 

affirmed. Upon the DMV’s appeal to the circuit court, the court agreed with the OAH’s 

rationale and affirmed the OAH’s reversal of the one-year implied consent revocation. 

This appeal followed; the DUI portion of the revocation is not on appeal.5 

This Court has held that 

[o]n 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). West Virginia 

Code § 17C-5-7(a) provides for revocation of a driver’s license for failure to submit to a 

secondary chemical test, in pertinent part as follows: 

If any person under arrest as specified in section four [§ 17C5-4] of this article refuses to submit to any secondary 

chemical test, the tests shall not be given: Provided, That 

prior to the refusal, the person is given an oral warning and a 

written statement advising him or her that his or her refusal to 

submit to the secondary test finally designated will result in 

the revocation of his or her license to operate a motor vehicle 

in this state for a period of at least forty-five days and up to 

life . . . . The officer shall, within forty-eight hours of the 

refusal, sign and submit to the Commissioner of Motor 

Vehicles a written statement of the officer that . . . (4) the 

person was given a written statement advising him or her that 

his or her license to operate a motor vehicle in this state 

4 Deputy Patisel testified: 

Q. Did she acknowledge that she understood it, if you can recall? 

A. I don’t recall. 

5 Ms. Reed did not file a substantive response to the DMV’s petition before the circuit court, but 

rather, merely moved to dismiss on service grounds for the DMV’s failure to serve the petition 

via certified or registered mail. There was no ruling on this motion below, nor did Ms. Reed 

cross-assign this issue as error. Accordingly, this issue has been waived. 

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would be revoked for a period of at least forty-five days and 

up to life if he or she refused to submit to the secondary test 

finally designated in the manner provided in section four of 

this article. . . . Upon receiving the statement the 

commissioner shall make and enter an order revoking the 

person’s license to operate a motor vehicle in this state for the 

period prescribed by this section. 

(emphasis added). As such, to sustain an “implied consent” revocation, one of the 

requirements is that the officer provide oral and written warning that refusal to submit to 

the secondary chemical test will result in revocation. It is undisputed that the only 

evidence admitted in this case that Ms. Reed was given a written warning is the notation 

on the DUI Information Sheet that the implied consent form was “read and copy provided 

to subject.” (emphasis added). During his live testimony, Deputy Paitsel testified only 

that he read the implied consent statement to Ms. Reed. Unquestionably, however, the 

DUI Information Sheet is admissible, affirmative evidence of its contents: 

In an administrative hearing conducted by the Division of 

Motor Vehicles, a statement of an arresting officer, as 

described in W. Va. Code § 17C-5A-1(b)(2004) (Repl. Vol. 

2004), that is in the possession of the Division and is offered 

into evidence on behalf of the Division, is admissible 

pursuant to W. Va. Code § 29A-5-2(b) (1964) (Repl. Vol. 

2002). 

Syl. Pt. 3, Crouch v. W. Va. Div. of Motor Vehicles, 219 W. Va. 70, 631 S.E.2d 628 

(2006). Moreover, West Virginia Code § 29A-5-2(b) (the “State Administrative 

Procedures Act”) provides that “[a]ll evidence, including papers, records, agency staff 

memoranda and documents in the possession of the agency, of which it desires to avail 

itself, shall be offered and made a part of the record in the case[.]” 

In this case, Ms. Reed did not contend, nor did the OAH or circuit court 

conclude, that the DUI Information Sheet was not admissible; rather, both apparently 

took the position that Deputy Paitsel’s live testimony—which was silent on whether he 

gave Ms. Reed a written copy of the implied consent statement—was of greater value 

than the documentary evidence which affirmatively indicated that Ms. Reed was provided 

a copy. However, under similar circumstances, this Court has admonished a lower court 

for such an approach: “[T]he lower court’s view of the evidence revealed a preference 

for testimonial evidence over documentary evidence. Our law recognizes no such 

distinction in the context of drivers’ license revocation proceedings.” Groves v. 

Cicchirillo, 225 W. Va. 474, 481, 694 S.E.2d 639, 646 (2010). 

We acknowledge that the fact that the DUI Information Sheet was 

admissible “does not preclude [its] contents . . . from being challenged during the 

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hearing. Rather, the admission of such a document into evidence merely creates a 

rebuttable presumption as to its accuracy.” Crouch, 219 W. Va. at 76 n.12, 631 S.E.2d at 

634 n.12. However, to the extent that Ms. Reed contends that she sufficiently 

“challenged” the DUI Information Sheet on the issue of being given a written implied 

consent statement, her evidence is lacking. As noted above, Ms. Reed did not testify, nor 

was there any other affirmative evidence, that she was not given a written implied 

consent statement to contradict the DUI Information Sheet. See Lilly v. Stump, 217 W. 

Va. 313, 319, 617 S.E.2d 860, 866 (2005) (reversing circuit court’s reversal of license 

revocation where there was “no testimony in conflict with the officer” regarding 

provision of implied consent form to driver); Dale v. Odum and Doyle, No. 12-1403 (W. 

Va. February 11, 2014) (reversing circuit court’s reversal of license revocation where 

driver failed to rebut evidence contained solely in DUI Information Sheet). Rather, all 

her counsel established is that there was no copy of the statement Deputy Paitsel gave 

Ms. Reed in the DMV’s administrative file. However, the statute does not require that a 

copy of the written statement be admitted into evidence; this argument has previously 

been rejected by this Court. See Gibbs v. Bechtold, 180 W. Va. 216, 219, 376 S.E.2d 

110, 113 (1988) (“Ms. Gibbs also asserts that the record does not support the 

administrative decision because the Implied Consent form was never offered or admitted 

into evidence during the administrative hearing. We find no merit in this argument. The 

record contained sufficient probative evidence from which the Commissioner could 

conclude that the form had been read to Ms. Gibbs.”). Accordingly, the circuit court’s 

conclusion that there was insufficient evidence to establish that Ms. Reed was given a 

written copy of the implied consent warning was clearly wrong. 

As additional grounds for reversal of the revocation, the OAH and circuit 

court further found that the DMV failed to produce sufficient evidence that Ms. Reed 

“understood” the implied consent statement. No authority for this proposition has been 

supplied by Ms. Reed or cited by the OAH or circuit court below. In fact, this Court has 

twice rejected this perceived requirement in In Re Matherly, 177 W. Va. 507, 354 S.E.2d 

603 (1987) and Gibbs, 180 W. Va. 216, 376 S.E.2d 110. In Matherly, the driver argued 

he was “too upset” to understand the implied consent request, to which he did not 

respond. 177 W. Va. at 510, 354 S.E.2d at 606. The Court held: 

When the requirements of W. Va. Code, 17C-5-7 [1983] have 

otherwise been met, and a driver refuses to or fails otherwise 

to respond either affirmatively or negatively to an officer’s 

request that he submit to a blood alcohol content test, the 

driver’s refusal or failure to respond is a refusal to submit 

within the meaning of W. Va. Code, 17C-5-7 [1983]. 

Syl. Pt. 1, Id. The Matherly Court further explained, 

W. Va. Code 17C-5-7 [1983] makes no provision for such a 

[lack of understanding] defense. Nor does the statute require 

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that the refusal be intelligently, knowingly and willingly 

made. The statute requires only that the driver refuse to take 

the test. We will not engraft onto the statute a specific intent 

requirement where it is apparent that none was intended by 

the legislature. 

Id. at 509, 354 S.E.2d at 605. In Gibbs, the driver argued that she was “unable to 

comprehend and respond” to the Trooper’s request that she submit to a blood alcohol test. 

180 W. Va. at 218, 376 S.E.2d at 112. Citing to Matherly, this Court noted that “[w]e 

refused in Matherly to engraft a specific intent requirement by holding that it must be 

proved that the refusal to take the test was knowingly made.” Id. Accordingly, the 

circuit court’s conclusion that the lack of evidence of Ms. Reed’s understanding of 

implied consent warranted reversal of the revocation was erroneous. 

For the foregoing reasons, we reverse that portion of the circuit court’s 

March 18, 2013, order upholding the OAH’s reversal of the implied consent revocation 

and remand for entry of an order reinstating Ms. Reed’s implied consent revocation 

pursuant to West Virginia Code § 17C-5-7(a). 

Reversed and remanded with directions. 

ISSUED: April 10, 2014 

CONCURRED IN BY: 

Chief Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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