### FILED No. 17-0174 – Reed, DMV Commissioner v. Boley 

### April 26, 2018 released at 3:00 p.m. EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS Justice Ketchum dissenting: OF WEST VIRGINIA Four years! It took over four ye ars from the date of Mr. Boley’s arrest, August 11, 2011, until the date he received a ruling from th e OAH, November 10, 2015. Unbelievably, it took the OAH two and a half years between the administrative hearing and the date it issued its order revoking Mr. Bo ley’s driver’s license. Why the two and a half year delay? I’ll let the circuit court’s order speak for itself: “The Respondent [DMV] presented no evidence to the Court addressing the reason or cause for the delay of the decision to revoke [Mr. Boley’s] drivi ng privileges.” (Emphasis added). Sadly, this case is not an anomaly. We had one just like it recently in which there was a two-year delay between th e defendant’s arrest for DUI and the DMV’s entry of its initial revocation order. I dissented in that case as well: “Justice shall be administered without . . . delay.” W.Va. Const. art. III, § 17. That commendable constitutional mandate was heinously ignored in this case. It took the DMV almost two years after the defe ndant was arrested and charged with DUI to enter its administrati ve revocation. Thereafter, it took the OAH nearly one year to affirm the administrative revocation. All of these dela ys have caused this defendant, who was arrested in 2011, to live with the specter of a pending driver’s license revoca tion for the better part of a decade. This is completely unreasonable and at odds with our constitutional mandate that jus tice be administered without delay.

1Straub v. Reed , 239 W.Va. 844, ___, 806 S.E.2d 768, 775-76 (2017) (Ketchum, J., dissenting). 1

Sound familiar? It should . The majority opinion in Straub and in the present case have given the OAH carte blanche to take years, literally years, to enter an order following a revocation pr oceeding. These enormous de lays offend all notions of due process and fundamental fairness. See Holland v. Miller , 230 W.Va. 35, 39, 736 S.E.2d 35, 39 (2012). (“[D]ue process concerns are raised when there are excessive and unreasonable delays in license suspension cases.”). As Straub and the present case make clear, the OAH may wait at least two and a ha lf years before entering an order without suffering any repercussions. How long must the OAH delay before this Court says enough is enough? Five years? A decade? By way of analogy, imagine if this Court encountered a two and a half year delay in the context of a misdemeanor DU I criminal matter. A DUI misdemeanor offense must be brought within one year under W.Va. Code § 61 -11-9 [2002]. If it is not

1 In Reed v. Conniff , 236 W.Va. 300, 308, 779 S. E.2d 568,576 (2015), this Court correctly observed “[s]ome delays are presumptively prejudicial, and if found to be presumptively prej udicial, then the government has the burden to rebut the presumption.” Petry v. Stump , 219 W.Va. 197, 200, 632 S.E.2d 3 53, 356 (2006). We have little difficulty in concluding that the overall four-year delay in this matter and circumstances surrounding the various continuances are of such a na ture as to render the delay presumptively prejudicial. See Petry , 219 W.Va. 197, 632 S.E.2d 353 (finding six-year dela y presumptively prejudicial); In re Petition of Donley , 217 W.Va. 449, 618 S.E.2d 458 (2005) (finding three-year delay unreasonable); Meadows v. Reed , No. 14–0138, 2015 WL 1588462 (W.Va. March 16, 2015) (finding four-year delay re sulted in prejudice to driver).

2brought within one year, the case is dism issed. The defendant is not required to demonstrate how he/she was prejudiced by the delay. We should adopt and apply that

rule in the instant case. That is, if the DMV takes two years after the arrest to enter its initial revocation order, as we saw in Straub , or if the OAH takes two and a half years between the administrative hearing and the date it enters its revocation order, as in the present case, the case should be dismissed because of the unreasonable delay without requiring the defendant to demonstrate prejudice. Based on all of the foregoing, I dissent.

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