Hinerman v. Dept. Motor Vehicles
Annotate this Case_____________
No. 20905
_____________
ROBERT J. HINERMAN,
Petitioner Below, Appellee
v.
WEST VIRGINIA DEPARTMENT OF
MOTOR VEHICLES,
Respondent Below, Appellant
___________________________________________________________
Appeal from the Circuit Court of Marshall County
Honorable John T. Madden, Judge
Civil Action No. 90-AP-40W
REVERSED
___________________________________________________________
Submitted: May 4, 1993
Filed: June 11, 1993
Mark A. Karl, Esq.
Moundsville, West Virginia
Attorney for the Appellee
Darrell V. McGraw, Jr., Esq.
Attorney General
Paul E. Jordan, Esq.
Senior Assistant Attorney General
Charleston, West Virginia
Attorneys for the Appellant
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. "'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.' Syllabus Point 2,
Shepherdstown Volunteer Fire Dept. v. West Virginia Human Rights
Comm'n, [172] W. Va. [627], 309 S.E.2d 342 (1983). Syl. pt. 1,
Johnson v. State Dep't of Motor Vehicles, 173 W. Va. 565, 318 S.E.2d 616 (1984)." Cunningham v. Bechtold, 186 W. Va. 474, 413 S.E.2d 129 (1991).
2. "Where there is evidence reflecting that a driver was operating a motor vehicle upon a public street or highway, exhibited symptoms of intoxication, and had consumed alcoholic beverages, this is sufficient proof under a preponderance of the evidence standard to warrant the administrative revocation of his driver's license for driving under the influence of alcohol." Syllabus Point 2, Albrecht v. State, 173 W. Va. 268, 314 S.E.2d 859 (1984).
Per Curiam:
The West Virginia Department of Motor Vehicles appeals an
order of the Circuit Court of Marshall County requiring the
Department to hold a second administrative hearing concerning the
revocation of Robert J. Hinerman's license for driving under the
influence (DUI). The Department maintains that a second hearing
should not be required to take Mr. Hinerman's testimony because Mr.
Hinerman, after proper notification, chose not to appear at his
administrative hearing. Because the record does not show that Mr.
Hinerman's rights were prejudiced, we find that a second hearing
should not be required and reverse the order of the circuit court.
About 4:00 a.m. on January 28, 1989, Patrolman L. E.
Booton of the Moundsville City Police Department saw Mr. Hinerman
slumped over the steering wheel of a pickup truck which was stopped
at a green light with its engine running. When the officer opened
the door to put the truck's transmission into park, he smelled
alcohol and noticed that the then awakened driver's eyes were
bloodshot and glassy. After Mr. Hinerman failed three field
sobriety tests, he was arrested for DUI in violation of W. Va.
Code, 17C-5-2(d) [1986]. Mr. Hinerman's secondary chemical test
indicated a .15 blood alcohol level.
On February 9, 1989, the Department issued an order
revoking Mr. Hinerman's license for ten years because of the
current violation and a previous revocation that occurred in
December 1985 when Mr. Hinerman refused to submit to a secondary
chemical test. Mr. Hinerman requested an administrative hearing
and after several continuances the hearing was scheduled for June
6, 1989. Notice of the hearing was mailed to Mr. Hinerman's
current address and his lawyer received a copy. Although Mr.
Hinerman failed to appear at the hearing, his lawyer was present
and cross-examined the arresting officer. At the conclusion of the
hearing, Mr. Hinerman's lawyer said that although the hearing
notice had been sent to Mr. Hinerman's current address Mr. Hinerman
might not have the hearing notice because he is working out of
state and then he "move[d] to keep the record open so Mr. Hinerman
can appear." Mr. Hinerman's request was denied and after the
Department affirmed the revocation, Mr. Hinerman appealed to the
circuit court. Initially, the circuit court affirmed the
revocation, but after considering Mr. Hinerman's motion for
reconsideration, the circuit court ordered the Department to
conduct a second hearing in order to consider Mr. Hinerman's
testimony.See footnote 1 The Department then appealed to this Court.
The scope of judicial review of decisions of the
Department was stated in Syllabus Point 1, Johnson v. State Dept.
of Motor Vehicles, 173 W. Va. 565, 318 S.E.2d 616 (1984):
"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." Syllabus Point 2, Shepherdstown
Volunteer Fire Dept. v. West Virginia Human
Rights Comm'n, [172] W. Va. [627], 309 S.E.2d 342 (1983).
See also Cunningham v. Bechtold, 186 W. Va. 474, 413 S.E.2d 129,
(1991); Gibbs v. Bechtold, 180 W. Va. 216, 218, 376 S.E.2d 110, 112
(1988).
Although W. Va. Code 29A-5-4(g) [1986] outlines the
circumstances when a circuit court must reverse an administrative
order, the code provides little guidance on when "[t]he court may
. . . remand the case for further proceedings." Given the limited
resources of the Department (see Cline v. Maxwell, ___ W. Va. ___,
___ S.E.2d ___ (No. 21508 Filed April 8, 1993)), a decision to
remand must be based on at least a showing of a procedural error,
a violation of a substantial right held by the petitioner or a
problem that occurred through no fault of the petitioner. See CDS,
Inc. v. Camper, ___ W. Va. ___, 428 S.E.2d 44 (1993) (per curiam)
(remanding a case to include inadvertently omitted reports). In
the present case, Mr. Hinerman, after proper notice, failed to
attend his administrative hearing. The record indicates that Mr.
Hinerman was aware of the hearing but decided to go to work.
Apparently Mr. Hinerman testified before the circuit court that "he
had not slept for a number of hours, did drink beer and had
consumed 'Nyquil' cold medication."See footnote 2 Given the circumstances, we
find no justification for requiring the Department to conduct a
second hearing.
In Syllabus Point 2, Albrecht v. State, 173 W. Va. 268,
314 S.E.2d 859 (1984), we said:
Where there is evidence reflecting that a
driver was operating a motor vehicle upon a
public street or highway, exhibited symptoms
of intoxication, and had consumed alcoholic
beverages, this is sufficient proof under a
preponderance of the evidence standard to
warrant the administrative revocation of his
driver's license for driving under the
influence of alcohol.
In the present case, the officer who arrested Mr.
Hinerman testified that Mr. Hinerman failed three field sobriety
tests and that the secondary chemical test indicated a 1.5 blood
alcohol level. The officer was cross-examined at the
administrative hearing by Mr. Hinerman's lawyer. We also note that
in a letter dated May 3, 1990, Mr. Hinerman admitted that he had
been drinking but claimed that he "was more exhausted than drunk."
We find this evidence sufficient proof under a preponderance of the
evidence standard to warrant the administrative revocation of Mr.
Hinerman's driver's license for driving under the influence of
alcohol.
For the above stated reasons, we reverse the order of the
Circuit Court of Marshall County and affirm the administrative
revocation of Mr. Hinerman's license.
Reversed.
Footnote: 1The circuit court's order requiring a second hearing contained no findings of fact or conclusions of law. Rule 52(a) of the W. Va. Rules of Civil Procedure [1988] states that a trial court hearing a case without a jury shall state upon the record its findings of fact and conclusions of law. See South Side Lumber Co. v. Stone Construction Co., 151 W. Va. 439, 152 S.E.2d 721 (1967). Footnote: 2The record does not contain a transcript of the circuit court hearing, but information concerning the hearing is contained a letter to circuit court from the prosecuting attorney who represented the Department below.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.