IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

September 2014 Term FILED 

November 3, 2014 

released at 3:00 p.m. 

RORY L. PERRY II, CLERK No. 13-0837 SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

STEVEN O. DALE, ACTING COMMISSIONER,
 

WEST VIRGINIA DIVISION OF MOTOR VEHICLES,
 

Respondent Below, Petitioner
 

v. 

JIMMIE J. SIZEMORE II, 

Petitioner Below, Respondent 

Appeal from the Circuit Court of Kanawha County
 

Honorable Jennifer F. Bailey, Judge
 

Civil Action No. 11-MISC-153
 

REVERSED
 

Submitted: October 14, 2014 

Filed: November 3, 2014 

Patrick Morrisey, Esq. Michael K. Wallace, Esq. 

Attorney General South Charleston, West Virginia 

Elaine L. Skorich, Esq. Attorney for Respondent 

Assistant Attorney General 

Charleston, West Virginia 

Attorneys for Petitioner 

JUSTICE LOUGHRY delivered the Opinion of the Court. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT
 

1. “The standard of appellate review of a circuit court’s order granting relief 

through the extraordinary writ of prohibition is de novo.” Syl. Pt. 1, Martin v. W.Va. Div. of 

Labor Contracting Licensing Bd., 199 W.Va. 613, 486 S.E.2d 782 (1997). 

2. “Pursuant to West Virginia Code § 17C-5A-2(c) (2008), the Commissioner 

of the DMV has authority to continue an administrative license revocation hearing on his or 

her own motion when an investigative officer, despite a validly issued subpoena, fails to 

appear at the hearing and fails to seek an emergency continuance. Good cause for the 

continuance exists by virtue of the statutory duty imposed on the Commissioner to secure the 

officer’s attendance at the hearing under West Virginia Code § 17C-5A-2(d) (2008) once the 

licensee has specifically requested the officer’s attendance at the revocation proceeding.” 

Syl. Pt. 2, Miller v. Hare, 227 W.Va. 337, 708 S.E.2d 531 (2011). 

3. “‘Prohibition lies onlyto restrain inferior courts from proceeding[] in causes 

over which they have no jurisdiction, or, in which, having jurisdiction, they are exceeding 

their legitimate powers, and may not be used as a substitute for [a petition for appeal] or 

certiorari.’ Syl. Pt. 1, Crawford v. Taylor, 138 W.Va. 207, 75 S.E.2d 370 (1953).” Syl. Pt. 

3, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

LOUGHRY, Justice 

The petitioner, Steven O. Dale, Acting Commissioner of the West Virginia 

Division of Motor Vehicles (“Commissioner”), appeals the October 3, 2013, order of the 

Circuit Court of Kanawha County granting a writ of prohibition requested by the respondent, 

Jimmie J. Sizemore II. Through that order, the circuit court prohibited the Commissioner 

from conducting a second day of an administrative hearing regarding the revocation of Mr. 

Sizemore’s driver’s license. 

Upon consideration of the parties’ briefs and arguments, the appendix record 

submitted on appeal, and the pertinent legal authorities, including Miller v. Hare, 227 W.Va. 

337, 708 S.E.2d 531 (2011), we conclude that the Commissioner had the authority to 

schedule and conduct a second day of the administrative hearing. Accordingly, we reverse 

the circuit court’s October 3, 2013, prohibition order. 

I. Factual and Procedural Background 

On February 24, 2009, Mr. Sizemore was arrested for first offense driving 

under the influence of alcohol (“DUI”). The arresting officer, Sergeant R. L. Foster of the 

Nitro Police Department, completed and forwarded a West Virginia DUI Information Sheet 

to the Division of Motor Vehicles (“DMV”). On March 26, 2009, the Commissioner entered 

an initial order revoking Mr. Sizemore’s driver’s license on the grounds of DUI and refusal 

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to submit to a secondary chemical breath test. See W.Va. Code § 17C-5A-1 (2008) 

(providing for license revocation for DUI or refusal to submit to secondary chemical test); 

W.Va. Code § 17C-5-7 (2008) (providing for license revocation for refusal to submit to 

secondary chemical test). Mr. Sizemore timely requested an administrative hearing before 

the DMV to challenge the initial order, thereby staying the revocation of his license.1 

When seeking the administrative hearing, Mr. Sizemore checked a box on the 

DMV-provided form to indicate that he also requested the police officer’s attendance at the 

hearing. In addition, Mr. Sizemore’s lawyer, Michael K. Wallace, sent a letter to the DMV 

seeking the officer’s attendance at the administrative hearing for purposes of crossexamination. The administrative hearing was initially scheduled for July 31, 2009, but was 

thereafter continued on two separate occasions at Mr. Wallace’s request. A hearing was 

ultimately set for August 5, 2010. 

Complying with Mr. Sizemore’s written demands for the arresting officer’s 

presence at the administrative hearing, the Commissioner issued and served a subpoena on 

Sergeant Foster commanding him to appear and testify at the August 5, 2010, hearing. 

1

Pursuant to West Virginia Code § 17C-5A-2(a) (2008), the Commissioner, upon 

receipt of the timely request for an administrative hearing, was required to stay the initial 

revocation order. 

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However, despite the subpoena, Sergeant Foster failed to attend the hearing.2 Mr. Sizemore 

declined to waive the officer’s attendance and moved for a dismissal of the revocation order 

and the proceedings. The DMV hearing examiner either denied or refused to rule upon the 

motion to dismiss.3 After accepting Mr. Sizemore’s testimony and evidence, the hearing 

examiner adjourned, but did not conclude, the hearing. 

By notice dated November 23, 2010, the Commissioner sua sponte scheduled 

the license revocation matter for a further hearing to be held on March 31, 2011. On March 

30, 2011, Mr. Sizemore filed a petition for a writ of prohibition and an application for stay 

in the Circuit Court of Kanawha County. Citing the arresting officer’s failure to appear on 

August 5, 2010, Mr. Sizemore sought to prohibit the DMV from conducting a second day of 

the hearing. Mr. Sizemore asserted that Sergeant Foster had made an untimely request for 

a continuance of the August 5, 2010, hearing, which the DMV denied.4 Mr. Sizemore argued 

2

In an internal memorandum, the DMV hearing examiner stated that he was unaware 

of any continuance that may have been requested by, or granted to, Sergeant Foster. 

Subsequently, the Commissioner admitted that Sergeant Foster did request a continuance of 

the August 5, 2010, hearing, but that request was denied. 

3

Because the parties did not include the entire record of the August 5, 2010, hearing 

in the appendix record, we are unable to clarify the exact nature of the hearing examiner’s 

ruling. 

4

The respondent has proffered that Sergeant Foster missed the August 5, 2010, hearing 

because he was on a hunting trip. During a hearing held before the circuit court on March 

26, 2013, Mr. Wallace verbally proffered additional facts about the officer’s request for a 

continuance. Mr. Wallace indicated that the officer telephoned the DMV prior to the hearing 

(continued...) 

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that if a driver fails to attend a DMV hearing his driver’s license is automatically revoked; 

therefore, it is unfair and contrary to the DMV’s rules to allow the State an additional 

opportunity to present evidence when the arresting officer fails to attend. 

On the same day the petition for writ of prohibition was filed, the circuit court 

issued a rule to show cause order and granted an ex parte stay of the administrative 

proceedings. The Commissioner filed an answer on April 19, 2011, asserting that he had the 

statutory authority to continue the administrative hearing on his own motion because the 

officer failed to appear as required by the validly-issued subpoena. Nothing further occurred 

in the case for twenty-two months. On January 30, 2013, the Commissioner filed a motion 

to dismiss the petition for writ of prohibition on its merits and for lack of prosecution. 

During a hearing on March 26, 2013, the circuit court denied the 

Commissioner’s motion to dismiss and announced that it would grant the petition for writ of 

prohibition. The circuit court’s Opinion and Order Granting Writ of Prohibition and 

Application for Stay, entered on October 3, 2013, prohibited the Commissioner from 

conducting a second hearing. The circuit court found no rule that would allow the 

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(...continued) 

to seek a continuance and, at the officer’s request, Mr. Wallace also telephoned the DMV to 

indicate his consent to a continuance. Regardless of the circumstances of the request for 

continuance, it is undisputed that the request was denied. 

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Commissioner to conduct a second hearing or to reschedule a properly convened hearing. 

The circuit court opined that while the Commissioner has the authority to continue a hearing 

on his own motion, he “may not exercise [his] authority to deny a pre-hearing continuance 

request and then, post hearing, schedule a second hearing when the first hearing does not 

proceed in a manner that benefits the Commissioner.” The circuit court concluded that the 

Commissioner disregarded the procedural law for DMV hearings. See Syl. Pt. 4, State ex rel. 

Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996) (setting forth factors to support 

award of prohibition relief, including lower tribunal’s persistent disregard for procedural 

law).5 

II. Standard of Review 

As we have previously recognized, “[t]he standard of appellate review of a 

circuit court’s order granting relief through the extraordinary writ of prohibition is de novo.” 

Syl. Pt. 1, Martin v. W.Va. Div. of Labor Contracting Licensing Bd., 199 W.Va. 613, 486 

S.E.2d 782 (1997). With this standard in mind, we examine the parties’ arguments and the 

appendix record before us. 

5

There is an inconsistency between the circuit court’s decision as announced during 

the March 26, 2013, hearing, and the circuit court’s October 3, 2013, written order. During 

the hearing, the judge said “I am going to order that Mr. Sizemore’s licensing privileges are 

restored[.]” However, the order only “prohibited [the Commissioner] from conducting a 

second hearing” and did not address the ultimate issue of whether Mr. Sizemore’s license 

should be revoked. Because we conclude that granting extraordinary relief was erroneous, 

we need not resolve this inconsistency. 

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III. Discussion 

The Commissioner argues that he had the authority to adjourn the 

administrative hearing and sua sponte schedule the matter for a second hearing on a later 

date. As explained below, we agree. 

At the outset, we recognize that the law applicable to this license revocation 

matter is the law that was in effect in 2009, when Mr. Sizemore’s alleged acts of DUI and 

refusal to submit to the secondary chemical test occurred. At that time, under statutes 

enacted and effective in 2008, it was the duty of the Commissioner, through his designated 

hearing examiner, to hold the administrative revocation hearing and decide whether to uphold 

or overturn the initial revocation order. See W.Va. Code § 17C-5A-2 (2008).6 

The law at the time of Mr. Sizemore’s arrest provided that the investigating 

officer “shall not attend the [administrative] hearing” unless requested to do so by the driver 

or the Commissioner, and that the DMV was “solely responsible for causing the attendance 

6

Effective June 11, 2010, the Legislature changed the procedures by which a driver 

may challenge the Commissioner’s initial revocation of a driver’s license. Instead of the 

Commissioner and his designated hearing examiner holding the administrative hearing and 

making the decision whether to uphold or overturn an initial revocation order, those functions 

now rest with an independent hearing board, the Office of Administrative Hearings. See, 

W.Va. Code § 17C-5A-2 (2013). As we recognized in Miller v. Epling, 229 W.Va. 574, 584, 

729 S.E.2d 896, 906 (2012), and Miller v. Smith, 229 W.Va. 478, 482-83, 729 S.E.2d 800, 

804-05 (2012), the Commissioner retained jurisdiction over all cases involving DUI incidents 

that occurred prior to June 11, 2010. 

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of the investigating officers.” W.Va. Code § 17C-5A-2(d) (2008). The requirements and 

procedures for obtaining a continuance of an administrative hearing were set forth in 

legislative rules. These rules provided that the Commissioner could grant a continuance to 

the driver or the arresting officer upon good cause shown if the request for continuance was 

made in writing and received by the Commissioner at least five days prior to the scheduled 

hearing date. W.Va. C.S.R. §§ 91-1-3.8.1, -3.8.2 (2005). “Good cause” included serious 

illness, medical appointments, court appearances, or religious holidays. Id. The rules also 

specified that the Commissioner could postpone or continue a hearing on his own motion for 

good cause, including the unavailability of essential personnel. W.Va. C.S.R. § 91-1-3.8.3 

(2005). Finally, the Commissioner was authorized to grant an “emergency continuance” on 

fewer than five days notice if there was an unexpected emergency. W.Va. C.S.R. § 91-1­

3.8.4 (2005).7 

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The full text of these legislative rules is as follows: 

3.8.1. The Commissioner may grant the person requesting a 

hearing a continuance of the scheduled hearing. The person 

shall make the request for continuance in writing, and it must be 

received by the Commissioner at least five (5) days prior to the 

scheduled hearing date. The Commissioner shall grant the 

request if good cause is shown. Good cause shall include such 

reasons as serious illness, medical appointments, court 

appearances, or religious holidays. In no case may the 

Commissioner grant more than one continuance per partyexcept 

as provided in Subdivisions 3.8.3 and 3.8.4. 

3.8.2.	 In DUI hearings, the Commissioner may also grant a 

(continued...) 

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We discussed and applied this law in Miller v. Hare, 227 W.Va. 337, 708 

S.E.2d 531 (2011), a case with facts very similar to those in the case sub judice. In Hare, the 

Commissioner issued an initial revocation order stemming from an incident of DUI. The 

driver requested both an administrative hearing and the arresting officer’s presence at the 

hearing. The Commissioner issued a subpoena to the officer but the officer failed to appear, 

so the hearing was adjourned and the Commissioner sua sponte rescheduled it for a later date. 

The circuit court issued a writ of prohibition precluding the Commissioner from holding the 

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(...continued) 

continuance to the arresting officer as prescribed in Subdivision 

3.8.1. 

3.8.3. The Commissioner may postpone or continue a hearing 

on his or her own motion. The motion shall be for good cause 

including, but not limited to, docket management, availability of 

hearing examiners or other essential personnel, Division error in 

scheduling or notice, or mechanical failure of essential 

equipment, i.e. recording equipment, file storage equipment, etc. 

3.8.4. The Commissioner may grant an emergency continuance 

on less than five days notice to the person requesting the hearing 

and also the arresting officer in a DUI hearing for unexpected 

personal emergencies of the person, attorney, arresting officer, 

or subpoenaed witnesses. An emergency situation requiring the 

services of an arresting officer en route to a hearing qualifies as 

an unexpected personal emergency. Any emergency 

continuance request may be made by telephone but also must be 

submitted in writing. The written request must be received by 

the Division no later than five (5) days after the date the hearing 

was scheduled or the provisions of Subsection 3.7 will be 

applied as if the party requesting the continuance failed to 

appear. 

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second hearing, but this Court reversed the prohibition order and allowed the Commissioner 

to proceed. We concluded in Hare that the Commissioner’s statutory duty to secure the 

officer’s presence at the hearing upon the driver’s request provided good cause to continue 

the hearing when the officer failed to appear pursuant to subpoena. 

Pursuant to West Virginia Code § 17C-5A-2(c) (2008), 

the Commissioner of the DMV has authority to continue an 

administrative license revocation hearing on his or her own 

motion when an investigative officer, despite a validly issued 

subpoena, fails to appear at the hearing and fails to seek an 

emergency continuance. Good cause for the continuance exists 

by virtue of the statutory duty imposed on the Commissioner to 

secure the officer’s attendance at the hearing under West 

Virginia Code § 17C-5A-2(d) (2008) once the licensee has 

specifically requested the officer’s attendance at the revocation 

proceeding. 

Hare, 227 W.Va. at 338, 708 S.E.2d at 532, syl. pt. 2. Importantly, in Hare, we rejected the 

same arguments that Mr. Sizemore made to the circuit court regarding the alleged unfairness 

of granting a continuance due to an officer’s non-appearance.8 

Mr. Sizemore argues, and the circuit court found, that Hare is distinguishable 

from the instant case because Sergeant Foster requested a continuance of the administrative 

8

Subsequent to Hare, we had another opportunity to address the ramifications under 

the 2008 law of an officer’s failure to appear at a DMV hearing. In Holland v. Miller, 230 

W.Va. 35, 38, 736 S.E.2d 35, 38 (2012), we concluded that the holding in Hare did not apply 

when the driver had failed to request the officer’s presence at the administrative hearing. 

Because Mr. Sizemore and his attorney did request Sergeant Foster’s presence at the hearing, 

Holland is wholly inapposite. 

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hearing, while the officer in Hare did not request a continuance. However, the critical fact 

defeating this argument is that Sergeant Foster’s request for a continuance was denied by the 

Commissioner. Pursuant to § 91-1-3.8.1 of the West Virginia Code of State Rules, the 

Commissioner was not obligated to grant Sergeant Foster’s request.9 Because Sergeant 

Foster was a subpoenaed witness for the August 5, 2010, DMV hearing, he was legally 

required to attend. 

We find that Hare is controlling and dictates the outcome of the instant appeal. 

Mr. Sizemore requested the officer’s presence at the hearing and, in compliance with his 

statutory duty to obtain the officer’s presence, the Commissioner issued a subpoena 

commanding Sergeant Foster to appear. When the officer failed to attend the hearing despite 

the validly-issued subpoena, and when Mr. Sizemore declined to waive the officer’s 

presence, the Commissioner had good cause to adjourn and continue the hearing to a later 

day in order to secure the officer’s testimony.10 

9

West Virginia Code of State Rules § 91-1-3.8.1 allowed the Commissioner to grant 

a continuance so long as specific conditions were met. The appendix record on appeal 

contains little information about Sergeant Foster’s request for a continuance of the August 

5, 2010, hearing, so we are unable to ascertain exactly why the request was denied. We note, 

however, that Mr. Sizemore averred in his petition for a writ of prohibition that Sergeant 

Foster’s request for a continuance was untimely made, and during the circuit court hearing, 

Mr. Wallace indicated that the officer’s request was made verbally. Pursuant to the rules, a 

request for a continuance had to be made in writing at least five days before the scheduled 

hearing date. Id. 

10Although Hare, syllabus point 2, provides an exception if the investigating officer 

(continued...) 

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It is well-settled that “‘[p]rohibition lies only to restrain inferior courts from 

proceeding[] in causes over which theyhave no jurisdiction, or, in which, having jurisdiction, 

they are exceeding their legitimate powers, and may not be used as a substitute for [a petition 

for appeal] or certiorari.’ Syl. Pt. 1, Crawford v. Taylor, 138 W.Va. 207, 75 S.E.2d 370 

(1953).” Hoover, 199 W.Va. at 14, 483 S.E.2d at 14, syl. pt. 3. Because the Commissioner 

acted within his legitimate powers, the circuit court erred in granting this writ of 

prohibition.11 

IV. Conclusion 

For the foregoing reasons, we reverse the circuit court’s prohibition order and 

direct that the Commissioner may proceed with the administrative revocation matter. 

Considering the passage of time, the Commissioner is instructed to conclude the 

administrative matter with the utmost alacrity. 

Reversed. 

10(...continued) 

requests an “emergency continuance,” there is no indication that Sergeant Foster requested 

an “emergencycontinuance” of the August 5, 2010, hearing. Pursuant to West Virginia Code 

of State Rules § 91-1-3.8.4, the Commissioner could grant an “emergency continuance” for 

“unexpected personal emergencies.” Assuming Sergeant Foster’s request was based on a 

planned hunting trip, as the respondent has proffered, such would not constitute an 

unexpected personal emergency. 

11Although the Commissioner raises additional assignments of error on appeal, our 

holding renders it unnecessary for us to address those issues. 

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