IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA 

September 2017 Term 

 

No. 16-0996 

 

JERRY S. STRAUB, 

Petitioner 

v. 

PAT S. REED, COMMISSIONER, 

WEST VIRGINIA DIVISION OF 

MOTOR VEHICLES, 

Respondent 

 

Appeal from the Circuit Court of Cabell County 

The Honorable F. Jane Hustead, Judge 

Case No. 16-C-274 

AFFIRMED 

 

Submitted: October 11, 2017 

Filed: November 1, 2017 

R. Lee Booten, II, Esq. Patrick Morrisey, Esq. 

Huntington, West Virginia Attorney General 

Attorney for Petitioner Janet E. James, Esq. 

Assistant Attorney General 

Charleston, West Virginia 

 Attorneys for Respondent 

JUSTICE WORKMAN delivered the Opinion of the Court.

JUSTICE KETCHUM dissents and reserves the right to file a dissenting opinion. 

FILED 

November 1, 2017 

released at 3:00 p.m. 

EDYTHE NASH GAISER, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA
i 

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. “A driver’s license is a property interest and such interest is entitled 

to protection under the Due Process Clause of the West Virginia Constitution.” Syl. Pt. 1, 

Abshire v. Cline, 193 W.Va. 180, 455 S.E.2d 549 (1995). 

3. “‘A law enforcement officer’s failure to strictly comply with the 

DUI arrest reporting time requirements of W.Va. Code, 17C-5A-l(b) [1994] is not a bar or 

impediment to the commissioner of the Division of Motor Vehicles taking administrative 

action based on the arrest report, unless there is actual prejudice to the driver as a result 

of such failure.’ Syllabus point 1, In re Burks, 206 W.Va. 429, 525 S.E.2d 310 (1999).” 

Syl. Pt. 3, Carpenter v. Cicchirillo, 222 W.Va. 66, 662 S.E.2d 508 (2008). 

4. “On appeal to the circuit court from an order of the Office of 

Administrative Hearings affirming the revocation of a party’s license to operate a motor 

vehicle in this State, when the party asserts that his or her constitutional right to due 

process has been violated by a delay in the issuance of the order by the Office of 
ii 

Administrative Hearings, the party must demonstrate that he or she has suffered actual 

and substantial prejudice as a result of the delay. Once actual and substantial prejudice 

from the delay has been proven, the circuit court must then balance the resulting 

prejudice against the reasons for the delay.” Syl. Pt. 2, Reed v. Staffileno, __ W.Va. __, 

803 S.E.2d 508 (2017). 
1 

WORKMAN, Justice: 

Nearly two years after Petitioner Jerry S. Straub was arrested for driving 

under the influence of alcohol (“DUI”), Respondent Pat S. Reed, Commissioner of the 

West Virginia Division of Motor Vehicles (hereinafter the “DMV”), issued an order 

revoking his driver’s license. On appeal, the Office of Administrative Hearings (the 

“OAH”), affirmed the license revocation. The circuit court upheld that decision. 

On appeal to this Court, Mr. Straub’s primary contention is that the 

procedural delays were so unreasonably excessive they violated his constitutional due 

process rights. Based upon our review of the briefs, legal authorities, appendix record, 

and upon consideration of arguments of counsel, this Court finds no merit to his 

arguments. Therefore, we affirm the order of the circuit court. 

I. FACTS AND PROCEDURAL HISTORY 

A police officer with the Ceredo, West Virginia, Police Department 

arrested Mr. Straub for DUI on January 9, 2011. The officer initiated the traffic stop at 

approximately 3:00 a.m., after he observed Mr. Straub backing his vehicle into oncoming 

traffic and almost striking another vehicle. The officer smelled alcohol on Mr. Straub’s 

breath and noticed his eyes were glassy and bloodshot. Mr. Straub admitted to drinking; 

he told the officer that he had consumed six to eight beers that evening. Mr. Straub failed 

a preliminary breath test, and the results of the secondary chemical test showed his blood 

alcohol concentration level was 0.107%. 
2 

Mr. Straub appeared, pro se, before the City of Ceredo Municipal Court on 

March 10, 2011, and his misdemeanor DUI charge was dismissed. 

For reasons not explained in the record, the DMV maintains that it did not 

receive the DUI Information Sheet from the arresting officer until November 27, 2012. 

The DMV issued an order revoking Mr. Straub’s driving privileges on December 18, 

2012. Thereafter, Mr. Straub requested a hearing with the OAH to challenge the 

revocation. 

Following several continuances for various reasons, the administrative 

hearing eventually took place before a hearing examiner on March 10, 2015.1

 The police 

officer testified about the events surrounding the arrest. When he testified, Mr. Straub did 

not dispute the fact that he was driving while intoxicated. Rather, Mr. Straub testified that 

he felt prejudiced by the delay of the revocation order being issued over twenty-three 

months from the time of his arrest, and the incident then being over four years old. Mr. 

Straub testified that he was employed as a pharmaceutical sales representative, and his 

employer issued notices of potential layoffs regularly. He further testified that during the 

time frame between his arrest for DUI and the administrative hearing, he attempted to 

secure other employment. Mr. Straub claimed that he was interviewed by recruiters, but 

 

1

 During that time, four hearings were scheduled and continued: the first upon Mr. 

Straub’s motion for continuance, the second for failure of the officer to appear, the third 

on the hearing examiner’s sua sponte motion, and the fourth due to Mr. Straub’s motion 

for continuance. 
3 

once they learned that his driver’s license could possibly be revoked, the recruiters would 

no longer continue his job search. Fortunately, Mr. Straub’s employer did not lay him off 

and he continued working while the matter was pending. At the administrative hearing, 

Mr. Straub’s counsel moved to dismiss the case based on the procedural delays. 

 On February 22, 2016, the OAH issued the decision of the hearing 

examiner which was adopted by the final order of the chief hearing examiner. The OAH 

found that Mr. Straub drove a motor vehicle while under the influence of alcohol on 

January 9, 2011. It ordered Mr. Straub’s driver’s license revoked under West Virginia 

Code § 17C-5A-2(j) (2013). The OAH did not address Mr. Straub’s arguments regarding 

procedural delays; it noted the OAH “does not have jurisdiction to deal with issues of 

timing and delay.” 

Mr. Straub appealed the OAH order to the circuit court and requested a stay 

of the revocation order pending that appeal pursuant to West Virginia Code § 17C-5A2(s) (2013). The circuit court held a hearing on the matter and granted Mr. Straub’s 

motion for stay.2

 By order entered October 21, 2016, the circuit court affirmed the OAH 

order, finding no merit to Mr. Straub’s arguments. 

 

2

 At this hearing, the DMV moved to dismiss the matter on jurisdictional grounds, 

and argued that it was not an appeal of a “contested case” pursuant to West Virginia Code 

§ 29A-5-4 (2015), because Mr. Straub did not contest the fact he was driving under the 

influence. The DMV asserted that Mr. Straub’s appeal was akin to a request for the 

(continued . . .) 
4 

Mr. Straub filed this appeal, and presented a motion to stay the circuit 

court’s order pending our appeal. On November 1, 2016, this Court granted this motion. 

II. STANDARD OF REVIEW 

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). With these

standards in mind, we proceed to the merits of this appeal. 

III. DISCUSSION 

Mr. Straub raises four separate, but largely interconnected, assignments of 

error on the subject of procedural delays. In the interest of brevity, we address the related 

issues in the context of his core argument. Mr. Straub asserts that the delays in the 

administrative proceedings violated his constitutional rights guaranteed by the Fifth 

 

extraordinary relief of rescission of a license revocation based upon delay in the 

administrative proceedings. The circuit court denied the DMV’s motion. This issue is not 

squarely before the Court. 
5 

Amendment to the United States Constitution and Article III, section 10 and section 17 of 

the West Virginia Constitution.3 

Delays and Procedural Due Process 

The Legislature has imposed no time limitations on the DMV’s statutory 

authority to issue a revocation order following a driver’s DUI arrest.4 Similarly, the OAH 

has no statutory or regulatory time limitations within which to issue its decision 

following an administrative hearing.5

 Nevertheless, this Court has recognized that “[a] 

driver’s license is a property interest and such interest is entitled to protection under the 

Due Process Clause of the West Virginia Constitution.” Syl. Pt. 1, Abshire v. Cline, 193 

W.Va. 180, 455 S.E.2d 549 (1995). Thus, “due process concerns are raised when there 

are excessive and unreasonable delays in [driver’s] license suspension cases.” Holland v. 

Miller, 230 W.Va. 35, 39, 736 S.E.2d 35, 39 (2012). 

[T]his Court has long recognized the constitutional mandate 

that “‘justice shall be administered without . . . delay.’ W.Va. 

Const. Art. III, § 17.” Frantz v. Palmer, 211 W.Va. 188, 192, 

564 S.E.2d 398, 402 (2001). See Petry v. Stump, 219 W.Va. 

197, 200, 632 S.E.2d 353, 356 (2006); and Allen v. State, 

Human Rts. Comm’n, 174 W.Va. 139, 157, 324 S.E.2d 99, 

118 (1984). We have further declared that “[j]ust as circuit 

court judges ‘have an affirmative duty to render timely 

decisions on matters properly submitted within a reasonable 

time following their submission,’ Syl. Pt. 1, in part, State ex 

 

3

 This is Mr. Straub’s second assignment of error. 

4

See W.Va. Code § 17C-5A-1(c). 

5

See W.Va. Code § 17C-5C-1 et seq. and 105 W.Va. CSR § 1-1 et seq. 
6 

rel. Patterson v. Aldredge, 173 W.Va. 446, 317 S.E.2d 805 

(1984), the obligation to act in a timely fashion is similarly 

imposed upon administrative bodies[.]” Frantz, 211 W.Va. at 

192, 564 S.E.2d at 402. Indeed, as we held in syllabus point 2 

of Frantz, “‘[A]dministrative agencies performing quasijudicial functions have an affirmative duty to dispose 

promptly of matters properly submitted.’ Syl. Pt. 7, in part, 

Allen v. State, Human Rights Comm’n, 174 W.Va. 139, 324 

S.E.2d 99 (1984).” 

Miller v. Moredock, 229 W.Va. 66, 70, 726 S.E.2d 34, 38 (2011).6

In the present case, Mr. Straub complains about two delays. First, the DMV 

issued its order revoking his driver’s license twenty-three months after his arrest for DUI. 

And second, the OAH issued its decision affirming that revocation eleven months 

following the administrative hearing. Mr. Straub asserts these delays were grossly 

excessive, unreasonable, and violated his procedural due process rights guaranteed by the 

 

6

 Mr. Straub’s fourth assignment of error is that the OAH and the DMV’s failure 

to establish internal procedural time limits violated his “constitutional and statutory due 

process rights.” This contention is premised on West Virginia Code § 29A-5-1(a), which 

provides that “[e]ach agency shall adopt appropriate rules of procedure for hearing and 

contested cases[.]” However, we reject the argument that this language creates a statutory 

mandate for the DMV and the OAH to establish strict internal procedural time limits. The 

gist of his argument is that it is unfair to drivers that the DMV and the OAH are not held 

to clearly established deadlines, especially since they are so lackadaisical in performing 

their respective administrative duties. However, this is an argument best made to the 

Legislature, not this Court. See Syl. Pt. 2, Huffman v. Goals Coal Co., 223 W.Va. 724, 

725, 679 S.E.2d 323, 324 (2009) (“This Court does not sit as a superlegislature, 

commissioned to pass upon the political, social, economic or scientific merits of statutes 

pertaining to proper subjects of legislation. It is the duty of the Legislature to consider 

facts, establish policy, and embody that policy in legislation. It is the duty of this Court to 

enforce legislation unless it runs afoul of the State or Federal Constitutions.”). 
7 

Fifth Amendment to the United States Constitution and Article III, sec. 10 and sec. 17 of 

the West Virginia Constitution. 

With regard to the first delay, the DMV counters that the lag in receipt of 

the arresting officer’s DUI Information Sheet following the arrest did not relieve the 

DMV of its statutory duty to revoke Mr. Straub’s driver’s license. We agree. As this 

Court held in syllabus point three of Carpenter v. Cicchirillo, 222 W.Va. 66, 662 S.E.2d 

508 (2008): 

“A law enforcement officer’s failure to strictly comply 

with the DUI arrest reporting time requirements of W.Va. 

Code, 17C-5A-l(b) [1994] is not a bar or impediment to the 

commissioner of the Division of Motor Vehicles taking 

administrative action based on the arrest report, unless there 

is actual prejudice to the driver as a result of such failure.” 

Syllabus point 1, In re Burks, 206 W.Va. 429, 525 S.E.2d 310 

(1999). 

When a driver asserts constitutional error due to a substantial delay in 

holding the administrative license revocation hearing, the pivotal issue is whether he or 

she can demonstrate prejudice. That is, whether the driver’s ability to present his or her 

defense was affected by the delay. In Meadows v. Reed, No. 14-0138, 2015 WL 1588462 

(W.Va. Mar. 16, 2015) (memorandum decision), this Court granted the driver relief after 

we determined that the four-year delay before the matter went to administrative hearing 

was prejudicial to the driver’s ability to defend himself. Significantly, that delay 

encompassed the death of the investigating officer, whose conclusions in the DUI 

information sheet were hotly contested by the driver. In contrast, we declined to grant the 
8 

driver relief in Reed v. Conniff, 236 W.Va. 300, 779 S.E.2d 568 (2015), when there was a 

four-year delay before the matter went to administrative hearing; in Coniff, the delay did 

not prejudice the driver’s ability to mount a defense to the charge. 

Turning to the instant case, we agree with Mr. Straub’s general contention 

that a driver should not be forced to live under the cloud of a pending revocation for 

nearly two years. Nevertheless, Mr. Straub fails to raise any serious argument that he was 

actually prejudiced or unable to adequately present his case when it did go to hearing 

before the OAH. In fact, Mr. Straub presented no evidence at the OAH hearing in defense 

of the DMV’s assertion that he was driving under the influence. 

Instead, by way of analogy, Mr. Straub asserts as his third assignment of 

error that the one-year statute of limitations for misdemeanors7

 should bar the DMV’s 

administrative action, considering the fact his arrest was for misdemeanor DUI. This 

analogy is misplaced on its face and ignores our case law regarding the “clear statutory 

demarcation between the administrative issue on a suspension and the criminal issue on a 

charge of driving while under the influence.” Jordan v. Roberts, 161 W.Va. 750, 757, 

246 S.E.2d 259, 263 (1978). Accordingly, we find the statute of limitations for Mr. 

 

7

See W.Va. Code § 61-11-9 (2014). 
9 

Straub’s DUI criminal charge is in no way germane to his procedural due process 

challenge to the administrative revocation proceeding.

8

 

The instant case is factually similar to In re Petition of Donley, 217 W.Va. 

449, 618 S.E.2d 458 (2005), wherein the driver contended that the delay of almost three 

years between his guilty plea to second offense DUI and the driver’s license revocation 

order violated his constitutional due process rights. In Donley, this Court found such 

delay patently unreasonable. Id. at 452, 618 S.E.2d at 461. Nevertheless, we held that the 

driver was not entitled to relief “because no prejudice flowed from the delay.” Id. 

Likewise, the twenty-three month delay between the DUI arrest and the 

DMV’s issuance of the revocation order in the instant matter was excessive and 

unreasonable. However, Mr. Straub is still not entitled to relief because he can show no 

actual prejudice that flowed from this delay. As mentioned above, at the administrative 

 

8

See Syl. Pt. 3, Carroll v. Stump, 217 W.Va. 748, 619 S.E.2d 261 (2005) 

(“Administrative license revocation proceedings for driving a motor vehicle under the 

influence of alcohol, controlled substances or drugs which are initiated pursuant to 

Chapter 17C of the West Virginia Code are proceedings separate and distinct from 

criminal proceedings arising from driving a motor vehicle under the influence of alcohol, 

controlled substances or drugs. The presentation of a sworn complaint before a magistrate 

and the magistrate’s finding of probable cause and issuance of a warrant are not 

jurisdictional prerequisites to the commencement of administrative license revocation 

proceedings pursuant to Chapter 17C of the West Virginia Code.”); see e.g., Alvarez v. 

State, Dep’t of DMV, 249 P.3d 286, 291-92 (Alaska 2011) (rejecting argument that 

speedy trial limits apply to driver’s license suspension proceedings because “both the 

Alaska and United States Constitutions grant the right to a speedy trial only with regard 

to criminal proceedings, and a license revocation proceeding is not a criminal 

proceeding.”) (footnote omitted). 
10 

hearing Mr. Straub did not dispute the fact that he was driving while intoxicated. 

Therefore, the delay did not hamper Mr. Straub’s defense of the charge; he advanced 

none.

9

 

 We turn now to the second delay. Mr. Straub complains that it took the 

OAH eleven months to issue its final order following the hearing. On this issue, the DMV 

counters that it cannot defend the OAH’s delay because the DMV “has no control over” 

 

9

 For this reason, the correlated first assignment of error lacks merit. Mr. Straub 

argues that the OAH’s hearing officer’s failure to rule upon the procedural delay issue 

was a violation of his “due process rights, in addition to those violations arising from preissuance and post-issuance unreasonable delays[.]” However, Mr. Straub does not cite 

any authority for the proposition that he would be entitled to relief simply due to the 

OAH’s failure to rule on his constitutional arguments. In Matter of Callaghan, 238 

W.Va. 495, 796 S.E.2d 604 (2017), cert. denied sub nom. Callaghan v. W. Virginia 

Judicial Investigation Comm’n, No. 17-54, 2017 WL 2972601 (U.S. Oct. 2, 2017), this 

Court briefly discussed the issue. Looking to other jurisdictions, we noted that an agency 

before which constitutional challenges are raised generally acts with the “presumption 

that its rules and actions were constitutional and reserve[s] to the appropriate judicial 

forum the final resolution of constitutionality.” Id. at 510 n.15, 796 S.E.2d at 619 n.15. 

“[A]lthough the general rule is that agencies do not have the authority to decide 

constitutional issues, agencies must consider and apply constitutional principles in 

determining procedures and rendering decisions in contested cases.” Richardson v. Tenn. 

Bd. of Dentistry, 913 S.W.2d 446, 453 (Tenn. 1995). More specifically, “[w]hen the 

focus of an aggrieved party’s claim is an ‘as applied’ challenge to the constitutionality of 

a statute or any challenge to the constitutionality of an agency rule, the agency may

initially rule on the challenge.” Id. at 455 (emphasis added). Here, Mr. Straub does not 

articulate any real prejudice flowing from the OAH’s failure to address his constitutional 

arguments. 
11 

the OAH. Nevertheless, the DMV states that Mr. Straub’s argument regarding this delay 

lacks merit because he can demonstrate no actual prejudice. 10 We agree. 

When evaluating a procedural due process challenge regarding the OAH’s 

delay in issuing its order after the administrative hearing, we again focus on whether the 

driver demonstrates actual prejudice. And in this circumstance, “the issue of prejudice 

necessarily involves prejudice to a party that occurred after the hearing was held.” Reed 

v. Staffileno, __ W.Va. __, __, 803 S.E.2d 508, 513 (2017) (emphasis added). 

In Staffileno, the driver put forth compelling evidence of prejudice because 

he made a career change during the thirty-nine month period between the OAH 

administrative hearing and its final order. ___ W.Va. at ___, 803 S.E.2d at 513. We 

affirmed the circuit court’s finding that Mr. Staffileno was prejudiced by this delay 

because he would not have retired from his desk job when he did and changed his 

employment to that of a school bus driver, if the OAH had issued a timely decision. Id. 

 

10 The DMV also asserts that Mr. Straub’s failure to bring an action for 

extraordinary relief against the OAH to issue its decision in a timely fashion renders moot 

his complaint about the delay. We disagree. This Court rejected similar arguments in 

Miller v. Moredock, and stated that despite the availability of extraordinary relief as a 

means of seeking issuance of delayed decisions, a party whose driver’s license has been 

revoked should not have to resort to such relief to obtain a decision within a reasonable 

period of time following an administrative hearing. 229 W.Va. at 72 n.7, 726 S.E.2d at 40 

n.7 
12 

Our holding in syllabus point two of Staffileno is dispositive of this issue: 

On appeal to the circuit court from an order of the

Office of Administrative Hearings affirming the revocation of 

a party’s license to operate a motor vehicle in this State, when 

the party asserts that his or her constitutional right to due 

process has been violated by a delay in the issuance of the 

order by the Office of Administrative Hearings, the party 

must demonstrate that he or she has suffered actual and 

substantial prejudice as a result of the delay. Once actual and 

substantial prejudice from the delay has been proven, the 

circuit court must then balance the resulting prejudice against 

the reasons for the delay. 

___ W.Va. at ___, 803 S.E.2d at 510. 

Accordingly, we find the OAH’s eleven-month delay in issuing its final 

order in this matter egregious. A driver should not have to wait this long to receive an 

order following an administrative hearing, and these delays cannot be condoned. 

Nevertheless, we decline to grant Mr. Straub relief because he can identify no actual and 

substantial prejudice, e.g., some type of detrimental change in his circumstances, related 

to the delay in OAH issuing its final order. 

 The circuit court was correct in finding that Mr. Straub demonstrated no 

prejudice by either the delay of the DMV in issuing the revocation order, or the delay in 
13 

the OAH’s issuing its final order. Thus, we find Mr. Straub’s related assignments of error 

regarding procedural delays lack merit.11 

IV. CONCLUSION 

We affirm the October 21, 2016, order of the Circuit Court of Cabell 

County. 

 Affirmed. 

 

11 As his fifth assignment of error, Mr. Straub challenges West Virginia Code § 

17C-5A-2(s)—the procedure for obtaining a stay from the circuit court pending appeal—

and claims the statute violates “the United States and West Virginia constitutional 

guarantees of due process of law, and their concepts of procedural due process, 

substantive due process, and equal protection of law.” 

This Court is at a loss to comprehend why Mr. Straub would assign this error 

considering the fact the circuit court granted his request to stay the revocation order 

pending appeal. “It is an established principle of law that one may not urge the 

unconstitutionality of a statute if he is not harmfully affected by the particular feature of 

the statute alleged to be in conflict with the Constitution.” Wilson v. State, 264 A.2d 510, 

511 (Del. 1970). “A closely related principle is that constitutional rights are personal and 

may not be asserted vicariously.” Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973). 

These principles “reflect the conviction that under our constitutional system courts are 

not roving commissions assigned to pass judgment on the validity of the Nation’s laws.” 

Id. at 610-11. Accordingly, we decline to address this assignment of error.