IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2020 Term

_______________

No. 19-0350

_______________

EVERETT FRAZIER, 

Commissioner of the West Virginia Division of Motor Vehicles,

Petitioner

v.

JOHN H. FOUCH, III,

Respondent

____________________________________________________________

Appeal from the Circuit Court of Kanawha County

The Honorable Jennifer F. Bailey, Judge

Civil Action No. 18-AA-223

REVERSED AND REMANDED WITH DIRECTIONS

____________________________________________________________

Submitted: October 6, 2020

Filed: November 6, 2020

Patrick Morrisey, Esq.

Attorney General

Elaine L. Skorich, Esq.

Assistant Attorney General

Steven E. Dragisich, Esq.

Assistant Attorney General

Charleston, West Virginia

Counsel for Petitioner

David Pence, Esq.

Zerbe & Pence, PLLC

Charleston, West Virginia

Nigel E. Jeffries, Esq.

Charleston, West Virginia

Counsel for Respondent

CHIEF JUSTICE ARMSTEAD delivered the Opinion of the Court.

FILED

November 6, 2020

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
SYLLABUS BY THE COURT

1. “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). 

2. “In cases where the circuit court has [reversed] the result before the 

administrative agency, this Court reviews the final order of the circuit court and the 

ultimate disposition by it of an administrative law case under an abuse of discretion 

standard and reviews questions of law de novo.” Syl. Pt. 2, Muscatell v. Cline, 196 W. Va. 

588, 474 S.E.2d 518 (1996). 

3. “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).
1

ARMSTEAD, Chief Justice:

The Office of Administrative Hearings (“OAH”) entered an order affirming 

the revocation of Respondent John H. Fouch’s (“Mr. Fouch”) driver’s license for driving 

under the influence of alcohol (“DUI”).1

 The arresting officer did not attend the OAH 

hearing but the OAH relied on the officer’s DUI information sheet in its ruling affirming 

the revocation. The circuit court reversed the OAH’s order, concluding that “the decision 

of the hearing examiner to admit [the arresting officer’s] reports and to consider the notes 

made therein without proper authentication[,] which impermissibly shifted the burden of 

proof from the DMV to [Mr. Fouch,] was arbitrary, capricious, and an abuse of discretion.” 

On appeal, Petitioner Everett Frazier, Commissioner of the West Virginia 

Division of Motor Vehicles (“DMV”), asserts the circuit court erred by: 1) ruling that the 

DMV’s records, including the DUI information sheet, should not have been admitted into 

evidence and considered by the OAH; and 2) ruling that the DMV has the burden of

securing the arresting officer’s attendance at the OAH hearing.

After review, we agree with both of the DMV’s arguments. We therefore 

reverse the circuit court’s March 6, 2019, order, and remand this matter to the circuit court 

for further proceedings consistent with our ruling herein. 

1 When the revocation order was entered, Patricia S. Reed was the Commissioner 

of the West Virginia Division of Motor Vehicles. Pursuant to Rule 41(c) of the Rules of 

Appellate Procedure, the current commissioner, Everett Frazier, has been automatically 

substituted as the named petitioner herein.
2

I. FACTUAL AND PROCEDURAL BACKGROUND

Mr. Fouch was arrested and charged with DUI on April 15, 2013. According 

to the DUI information sheet completed by the arresting officer, Officer Charles 

Thompson, four eyewitnesses saw Mr. Fouch “almost hit . . . [a] gas station” while driving

in Wayne County, West Virginia. Further, the DUI information sheet provides that Mr. 

Fouch had the odor of an alcoholic beverage on his breath; staggered while walking; 

staggered while standing; had slurred speech; exhibited a lethargic attitude, and bloodshot 

eyes; admitted to drinking and taking sleeping medication prior to driving; and failed 

several field sobriety tests.2

 Officer Thompson arrested Mr. Fouch for DUI, transported 

him to the police station, and administered a secondary chemical test which revealed that 

Mr. Fouch’s blood alcohol content was .120%.

The DMV entered an order revoking Mr. Fouch’s driver’s license on April 

25, 2013. Because Mr. Fouch was employed as a commercial driver, the DMV also entered 

an order of disqualification of his commercial driver’s license. Mr. Fouch timely requested 

a hearing before the OAH to contest the revocation and disqualification orders. 

The OAH hearing was scheduled for August 13, 2013. At the request of both 

the DMV and Mr. Fouch, the OAH issued a subpoena for Officer Thompson to appear at 

2 The DUI information sheet provides that during the walk-and-turn test, Mr. Fouch 

could not keep his balance, stopped while walking, missed heel-to-toe, stepped off the line, 

and took an “incorrect number of steps.” Regarding the one leg stand test, the DUI 

information sheet provides that Mr. Fouch “could not perform test[,] could barely stand.”
3

this hearing. This hearing was continued sua sponte by the OAH hearing examiner due to 

a family emergency. 

The hearing was rescheduled for March 5, 2014. At the request of the DMV, 

the OAH issued a subpoena to Officer Thompson to appear at this hearing. Both parties 

moved for a continuance because Officer Thompson failed to appear and because counsel 

for Mr. Fouch was ill.

The hearing was rescheduled for October 9, 2014. At the request of Mr. 

Fouch, the OAH issued Officer Thompson a subpoena to appear at this hearing. He did 

not appear. The DMV moved to continue the hearing because counsel “states that she was 

just made aware of possible video evidence and would like time to obtain it.” Mr. Fouch 

did not object to the continuance.

The hearing was rescheduled for July 28, 2015. Once again, the OAH issued

Officer Thompson a subpoena to appear at the hearing.3

 He failed to appear. The DMV 

moved to continue the hearing due to Officer Thompson’s failure to appear. Mr. Fouch 

objected “because the [DMV] has continued this matter twice previously.” The OAH

hearing examiner granted the continuance.

The hearing was rescheduled for February 17, 2016. The OAH issued 

Officer Thompson a subpoena to appear at this hearing. Officer Thompson failed to 

3 It is unclear which party requested the subpoena for this hearing.
4

appear.

4

 The DMV moved to continue the hearing due to Officer Thompson’s failure to 

appear. The OAH’s order granting the continuance provides that there was no objection to 

the DMV’s motion to continue.

The hearing was rescheduled for June 15, 2016. Officer Thompson was 

issued a subpoena but failed to appear at the hearing. Counsel for the DMV stated:

I have mailed the subpoena and emailed the subpoena 

to his [Officer Thompson’s] personal email. So I do not know 

why he’s not making [an] appearance here today. With that, 

and that being the fourth time [he’s failed] to appear, I would 

ask that you just accept the DMV submission . . . under [W. 

Va. Code §] 29A-5-2(b) as the record of what the 

Commissioner’s file entails.

Mr. Fouch objected to the DMV’s records being admitted and moved to 

dismiss the revocation. The following exchange took place at the hearing:

Counsel for Mr. Fouch: I want to object to that being 

received into the record. As both of you all know, I conduct 

extensive cross examinations of these officers with regard to 

their ability to conduct the tests and recognize certain clues that 

are contained in the report, spend quite a bit of time doing that, 

and I’d object to that being admitted. And I’d further move 

that due to the fact that we’ve been here – this is the fourth time 

without the officer present – that it be dismissed. My client 

(unintelligible) has paid me quite a bit of money to come down 

here and pays me every time that I’m down here, because I 

have to prepare, and, he certainly shouldn’t be penalized for 

the officer’s inaction. I move to dismiss.

Hearing Examiner: I can’t – I don’t have the authority 

to dismiss it. With regard to admitting the DUI Information 

Sheet, we do take these into evidence under [W. Va. Code §] 

4 It is unclear which party requested the subpoena for this hearing.
5

29A-5-2(b) but that doesn’t mean I’m going to give it, you 

know, full weight or any weight for that matter. If you do want 

the officer here, we can continue it and, you know, try to get 

him –

Counsel: No, I certainly don’t want my client to have 

to incur further expenses.

The hearing examiner admitted the DMV’s records over Mr. Fouch’s 

objection. The DMV’s records consisted of 1) Officer Thompson’s DUI information sheet, 

2) the “Intox EC/IR-II Subject Test” sheet which showed the results of Mr. Fouch’s 

secondary chemical breath test, and 3) the West Virginia Implied Consent Statement.

The hearing proceeded, and Mr. Fouch was the only witness who testified.

He stated that he did not consume alcohol on the night he was arrested. He testified that 

he rinsed his mouth with Listerine and had used an Albuterol breathing treatment prior to 

driving his intoxicated nephew to the gas station. Mr. Fouch stated that his nephew was 

acting erratically while in the car, stating that he grabbed the steering wheel, and “was 

sticking his head out [of] the sunroof and was yelling at people[.]” According to Mr. 

Fouch, his nephew continued to cause a scene when they arrived at the gas station. Officer 

Thompson arrived at the gas station, and began questioning Mr. Fouch. In sum, Mr. 

Fouch’s testimony was that he did not consume alcohol prior to driving, and that his use of 

Listerine and an Albuterol treatment skewed the results of the secondary chemical test. 

Following Mr. Fouch’s testimony, his counsel vouched the record that he 

would have cross-examined Officer Thompson on a number of issues. Counsel for the 
6

DMV did not make any closing argument, she simply stated, “I’ll just let the record stand 

where it’s at.”

The OAH entered its final order upholding the DMV’s orders of revocation 

and disqualification on June 26, 2017. The OAH explained its ruling as follows:

The Petitioner stated that he did not drink alcohol and 

believes the Listerine or Albuterol caused the high blood 

alcohol content reading. However, when residual mouth 

alcohol is present, the Intox EC/IR-II shows such a result. In 

this case, the Intox EC/IR-II printout does not show a “residual 

mouth alcohol” reading. Additionally, the secondary chemical 

test was administered to the Petitioner more than one hour after 

the time of initial contact, which means the Listerine or 

Albuterol would have to have lingered for more than one hour 

in the Petitioner’s mouth, which is highly unlikely. The 

Petitioner’s testimony simply does not add up. Therefore, the 

Order of Revocation should be affirmed. 

Mr. Fouch filed an appeal of the OAH’s ruling in the Circuit Court of 

Kanawha County. He alleged that he was denied his right to confront his accuser, and that 

he suffered actual prejudice because the DMV did not secure the presence of Officer 

Thompson at the administrative hearing. 

The circuit court entered its final order on March 6, 2019. It determined that 

“the decision of the hearing examiner to admit the investigating officer’s reports and to 

consider the notes made therein without proper authentication[,] which impermissibly 

shifted the burden of proof from the DMV to [Mr. Fouch,] was arbitrary, capricious, and 

an abuse of discretion.” Further, the circuit court found that “W. Va. Code § 29A-5-2(b) 

describes the designation of the record for purposes of appeal and is not a rule concerning 

the admission of evidence in administrative proceedings as it would directly conflict with 
7

the application of the West Virginia Rules of Evidence.” The circuit court concluded that 

“Officer Thompson’s reports were not properly admitted pursuant to the West Virginia 

Rules of Evidence, and, therefore, should not have been considered by the hearing 

examiner.” The circuit court’s order also provided that the DMV was responsible for

securing the attendance of Officer Thompson at the OAH hearing. Based on the foregoing, 

the circuit court reversed the OAH’s order. 

Following entry of the circuit court’s order, the DMV filed the instant appeal.

II. STANDARD OF REVIEW

This Court has previously established the standards for our review of a circuit 

court’s order deciding an administrative appeal: 

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). 

Further, “[i]n cases where the circuit court has [reversed] the result before 

the administrative agency, this Court reviews the final order of the circuit court and the 

ultimate disposition by it of an administrative law case under an abuse of discretion 

standard and reviews questions of law de novo.” Syl. Pt. 2, Muscatell. With these standards 

as guidance, we consider the parties’ arguments.
8

III. ANALYSIS

The DMV asserts the circuit court erred by ruling that: 1) the DMV’s records 

should not have been admitted into evidence and considered by the OAH; and 2) the burden 

is on the DMV to secure the arresting officer’s attendance at the OAH hearing. We address 

both of these arguments in turn.

A. DMV’s Records

The first issue is whether the OAH erred by admitting the DMV’s records, 

including Officer Thompson’s DUI information sheet, into evidence and considering them 

in its order upholding the revocation of Mr. Fouch’s driver’s license. This issue requires 

us to examine W. Va. Code § 29A-5-2(b) (1964).

5

 It 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, and no other factual information or 

evidence shall be considered in the determination of the case. 

Documentary evidence may be received in the form of copies 

or excerpts or by incorporation by reference.

5 When examining this statute, we are mindful of our rules of statutory 

interpretation. This Court has held that in deciding the meaning of a statutory provision, 

“[w]e look first to the statute’s language. If the text, given its plain meaning, answers the 

interpretive question, the language must prevail and further inquiry is foreclosed.” 

Appalachian Power Co. v. State Tax Dep’t of W. Va., 195 W. Va. 573, 587, 466 S.E.2d 

424, 438 (1995); see also Syl. Pt. 2, Crockett v. Andrews, 153 W. Va. 714, 172 S.E.2d 384 

(1970) (“Where the language of a statute is free from ambiguity, its plain meaning is to be 

accepted and applied without resort to interpretation.”); and Syl. Pt. 2, State v. Epperly, 

135 W. Va. 877, 65 S.E.2d 488 (1951) (“A statutory provision which is clear and 

unambiguous and plainly expresses the legislative intent will not be interpreted by the 

courts but will be given full force and effect.”).
9

This Court addressed W. Va. Code § 29A-5-2(b) in 2006, holding that

[i]n 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).

The circuit court determined that this syllabus point was inapplicable in the 

present case “as this case concerns a modern administrative review hearing before the 

OAH, and not the DMV.” In essence, the circuit court ruled that the creation of the OAH 

in 2010, which divested the DMV of its responsibility to conduct administrative hearings,

rendered syllabus point three of Crouch inapplicable.

During oral argument in this matter, counsel for the DMV argued that this 

Court has addressed this issue in two recent decisions and rejected the circuit court’s 

analysis. According to the DMV, this Court has concluded that the OAH remains

statutorily obligated to receive the DMV’s records into evidence. We agree. 

This Court noted in a recent decision that “[i]t is well-settled that the DMV 

file is to be accepted into evidence at a hearing before the OAH.” Frazier v. Condia, No. 

19-0465, 2020 WL 4355713, at *2 (W. Va. July 30, 2020)(memorandum decision). The 

Court in Condia recognized the mandatory direction contained in W. Va. Code § 29A-5-

2(b) 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[.]” (Emphasis added). Further, the Court
10

explained that the creation of the OAH in 2010 did not change the mandatory direction that 

the DMV’s file shall be offered and made part of the record: 

We have repeatedly reminded litigants that this premise 

continues to hold true, though the agency in possession of the 

administrative file is no longer responsible for conducting the 

administrative hearing. See W. Va. Code § 17C-5C-5(a) (Repl. 

Vol. 2013) (2010) (recognizing the “transition of the 

administrative hearing process from the Division of Motor 

Vehicles to the Office of Administrative Hearings”). In 2010, 

“[t]he Office of Administrative Hearings [was] created as a 

separate operating agency within the Department of 

Transportation.” W. Va. Code § 17C-5C-1(a) (2010) (Repl. 

Vol. 2013).

Id. at *2.6

In another recent decision, Frazier v. Riddel, No. 19-0197, 2020 WL 

4355641 (W. Va. July 30, 2020)(memorandum decision), the Court considered an appeal 

of a circuit court’s order that was nearly identical to the order on appeal in this matter. As 

in the present matter, the circuit court in Riddel determined that syllabus point three of 

Crouch “is inapplicable as this case concerns a modern administrative review hearing 

before the OAH, and not the DMV.” Additionally, the circuit court’s order in Riddel

concluded that the DMV “is not entitled to have [its] file made part of the administrative 

record without introducing documentary evidence through an appropriate witness.” Id. at 

*2. The Court rejected the circuit court’s analysis in Riddel, stating:

6 The Court in Condia also noted that this Court has continued to rely on syllabus 

point three of Crouch in cases decided since the OAH was created in 2010. See Syl. Pt. 7, 

Dale v. Odum, 233 W. Va. 601, 760 S.E.2d 415 (2014).
11

The circuit court opined that the creation of the independent 

OAH in 2010, which divested the DMV of its responsibility to 

conduct administrative hearings, created a “modern 

administrative review hearing” process that rendered our prior 

syllabus points interpreting this statute null. See Syl. Pt. 3, 

Crouch v. W. Va. Div. of Motor Vehicles, 219 W. Va. 70, 631 

S.E.2d 628 (2006) (“In an administrative hearing conducted by 

the Division of Motor Vehicles, a statement of an arresting 

officer, . . . 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).”). We have, however, continued to uphold this 

legislative requirement in the decade since the OAH began.

Id. at *3 (Emphasis added, footnote omitted).

We find this Court’s analysis in Condia and Riddel to be directly applicable 

to the instant matter. The circuit court clearly erred by ruling that the DMV’s file, including 

Officer Thompson’s DUI information sheet, should not have been admitted into evidence 

and considered by the OAH. While the circuit court issued its ruling in this case prior to 

our decisions in Condia and Riddel, we note that this Court also addressed this issue in a 

2018 case, which was decided prior to the circuit court’s ruling in the instant matter. In 

the 2018 case, the Court ruled: 

We have previously stated that “[w]ithout a doubt, the 

Legislature enacted W. Va. Code § 29A-5-2(b) with the intent 

that it would operate to place into evidence in an administrative 

hearing [‘a]ll evidence, including papers, records, agency staff 

memoranda and documents in the possession of the agency, of 

which it desires to avail itself.[’]” Crouch, 219 W.Va. [at] 76, 

631 S.E.2d [at] 634. As evidenced by the use of the word 

“shall,” admission of the evidence identified in the statute is 

mandatory. Id. The secondary chemical test result was in the 

DMV’s possession, and the DMV sought to avail itself of the 

result. Accordingly, the result of the secondary chemical test 

should have been admitted into evidence, subject to a 
12

rebuttable presumption as to its accuracy. Id. at 76, n.12, 631 

S.E.2d at 634, n.12 (“We point out that the fact that a document 

is deemed admissible under the statute does not preclude the 

contents of the document from being challenged during the 

hearing. Rather, the admission of such a document into 

evidence merely creates a rebuttable presumption as to its 

accuracy.”).

Reed v. Lemley, No. 17-0797, 2018 WL 4944553, at *4 (W. Va. Oct. 12, 2018) 

(memorandum decision).7

7 We also note that in a 2014 case, Dale v. Reynolds, No. 13-0266, 2014 WL 

1407375, at *4 (W. Va. April 10, 2014) (memorandum decision), this Court provided that

there is no requirement that the evidence of record be 

testimonial as opposed to documentary. See W. Va. Code § 

29A-5-2(b) (“All 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, and no other factual 

information or evidence shall be considered in the 

determination of the case. Documentary evidence may be 

received in the form of copies or excerpts or by incorporation 

by reference.”). See also Syl. pt. 3, Crouch v. W. Va. Div. of 

Motor Vehicles, 219 W. Va. 70, 631 S.E.2d 628 (2006) 

(holding that statements of the arresting officer are admissible 

in the context of driver’s license revocation proceedings); Dale 

v. Odum, ––W. Va. ––, –– S.E.2d ––, 2014 WL –– (Nos. 12–

1403 & 12-1509 Feb. 11, 2014) (per curiam) (relying on 

Crouch to reinstate a license revocation where the driver 

argued that the evidence contained in the DUI Information 

Sheet was inadmissible hearsay).

It follows that testimony is not necessary for the DMV 

to meet its burden of proof. Documentary evidence can form 

the basis for a revocation decision if it is supported by 

substantial evidence.
13

Based on the foregoing, we find that the OAH was statutorily obligated to 

receive the DMV’s file, including Officer Thompson’s DUI information sheet, into 

evidence. The circuit court’s ruling to the contrary was clearly erroneous.

B. Securing Witness Attendance at an OAH Hearing

The DMV’s second assignment of error is that the circuit court erred by 

finding that the DMV was required to secure the arresting officer’s attendance at the OAH 

hearing. The circuit court’s order provides the following analysis on this issue:

Pursuant to W.Va. Code § 17C-5C-4a (2012), the OAH 

has legislative and procedural rule-making authority, and W. 

Va. Code R. § 105-1-11, et seq. and W. Va. Code R. § 105-1-

1413, et seq. concerns the subpoena process and the failure to 

appear of witnesses. W. Va. Code R. § 105-1-1414.3 provides, 

“The OAH may enter an order reversing the Commissioner’s 

Order of Revocation if the Commissioner, his counsel, or his 

designee does not abide by the requirements set forth in 

subdivision 9.5.C. of these rules.” W. Va. Code R. § 105-1-

9.5(c) provides, “If a written motion for an emergency 

continuance with evidence of good cause is not received by the 

OAH in a timely manner, the OAH may deem it a failure of the 

party requesting the continuance to appear at the hearing. The 

OAH may deem it a failure of the party requesting the 

continuance to appear at the hearing even if an order continuing 

the hearing was issued provided that such order was based 

solely on the oral representations of the party making the 

motion.” When read together, the Court finds that the OAH 

contemplated the reversal of the Commissioner’s revocation 

when the DMV failed to produce its necessary witness, the 

arresting officer, at OAH hearings.

(Emphasis added).

Upon review, we disagree with the circuit court’s conclusion. Our statutory 

law addressing OAH hearings provides that the party desiring testimony from a particular 
14

witness, including an arresting officer, has the responsibility of securing that individual’s 

testimony. Specifically, W. Va. Code § 17C-5A-2(c)(3) (2015) provides that the OAH 

may issue subpoenas commanding witnesses to appear at the request of a party or the 

party’s legal representative; that the party requesting the subpoena “shall be responsible 

for service of the subpoena upon the appropriate individual;” and that “[i]f a person does 

not obey the subpoena or fails to appear, the party who issued the subpoena to the person 

may petition the circuit court wherein the action lies for enforcement of the subpoena.” 

(Emphasis added).8

 

8 West Virginia Code § 17C-5A-2(c)(3) provides, in full:

The Office of Administrative Hearings may issue 

subpoenas commanding the appearance of witnesses and 

subpoenas duces tecum commanding the submission of 

documents, items or other things. Subpoenas duces tecum shall 

be returnable on the date of the next scheduled hearing unless 

otherwise specified. The Office of Administrative Hearings 

shall issue subpoenas and subpoenas duces tecum at the request 

of a party or the party’s legal representative. The party 

requesting the subpoena shall be responsible for service of the 

subpoena upon the appropriate individual. Every subpoena or 

subpoena duces tecum shall be served at least five days before 

the return date thereof, either by personal service made by a 

person over eighteen years of age or by registered or certified 

mail, return receipt requested, and received by the party 

responsible for serving the subpoena or subpoena duces tecum: 

Provided, That the Division of Motor Vehicles may serve 

subpoenas to law-enforcement officers through electronic mail 

to the department of his or her employer. If a person does not 

obey the subpoena or fails to appear, the party who issued the 

subpoena to the person may petition the circuit court wherein 

the action lies for enforcement of the subpoena.
15

The clear, unambiguous language of this statute provides that “the party”

seeking to compel a witness to appear at an OAH hearing has the responsibility to request 

the subpoena, and the responsibility to petition the circuit court for enforcement of the 

subpoena when the witness fails to appear. Thus, we find no support for the circuit court’s 

conclusion that the DMV was required to secure Officer Thompson at the OAH hearing. 

In the present case, both the DMV and Mr. Fouch requested that subpoenas be issued to 

compel Officer Thompson to appear at the OAH hearing. The OAH issued these 

subpoenas, but Officer Thompson failed to appear. Neither the DMV, nor Mr. Fouch, 

petitioned the circuit court to enforce their subpoenas. Based on the foregoing, we find 

that the circuit court erred by ruling that the DMV was required to secure Officer 

Thompson’s attendance at the OAH hearing.

C. Remand

Having concluded that the circuit court’s analysis was erroneous, we find it 

necessary to remand this matter to the circuit court for further proceedings. On remand, 

the circuit court must consider Mr. Fouch’s appeal of the OAH’s order in light of our ruling 

herein that: 1) the OAH did not err by admitting the DMV’s records into evidence; and 2)
16

the DMV did not have the burden of securing Officer Thompson’s attendance at the OAH 

hearing.9

 

While we find that the DMV’s records, including the DUI information sheet,

were properly admitted and considered by the OAH, we note that “the fact that a document 

is deemed admissible under the statute does not preclude the contents of the document from 

being challenged during the 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. 

9 On remand, the circuit court must conduct its inquiry pursuant to the statutory 

standards contained in W. Va. Code § 29A-5-4 (1998). This Court has outlined those 

standards as follows: 

Upon judicial review of a contested case under the West 

Virginia Administrative Procedure Act, Chapter 29A, Article 

5, Section 4(g), the circuit court may affirm the order or 

decision of the agency or remand the case for further 

proceedings. The circuit court shall reverse, vacate or modify 

the order or decision of the agency if the substantial rights of 

the petitioner or petitioners have been prejudiced because the 

administrative findings, inferences, conclusions, decisions or 

order are: “(1) In violation of constitutional or statutory 

provisions; or (2) In excess of the statutory authority or 

jurisdiction of the agency; or (3) Made upon unlawful 

procedures; or (4) Affected by other error of law; or (5) Clearly 

wrong in view of the reliable, probative and substantial 

evidence on the whole record; or (6) Arbitrary or capricious or 

characterized by abuse of discretion or clearly unwarranted 

exercise of discretion.”

Syl. Pt. 2, Shepherdstown Volunteer Fire Dep’t v. State ex rel. State of W. Va. Human 

Rights Comm’n, 172 W. Va. 627, 309 S.E.2d 342 (1983).
17

IV. CONCLUSION

We reverse the circuit court’s March 6, 2019, order, and remand this matter 

to the circuit court for further proceedings consistent with our ruling herein.

 Reversed and Remanded with Directions.