WV DMV v. Perez - Chemical Test Refusal Appeal Dismissal

1 I N THE I NTERMEDIATE C OURT OF A PPEALS OF W EST V IRGINIA WEST VIRGINIA DI VISION OF MOTOR VEHIC LES, Plaintiff Below, Petiti oner v.) No. 25- ICA -4 69 (Cir. Ct. Monong alia Cnty. Case No. CC- 31-2025-M- AP -6) DILLAN ALLEJAN DRO PEREZ, Defendant Below, Res pondent MEMORANDUM D ECISION Petitioner West Virginia Division of Motor V ehicles (“ DMV ”) appe als the Circuit Court of Monongalia County’s Novemb er 7, 2025, Order Granting Defendant’s Motion to Dismiss Appeal. In that order, the circuit court granted Respon dent Dillan Allejandro Perez’s motion to dismiss the DMV’s appe al of the M agistrate Court of Monongalia County’s “ Order: Failure to Prove Refusal of Secondary Chemical Test. ” At the direction of the Court, both pa rties filed supple mental briefing on the issue of whether a refu sal review hearing is a separate civil procee ding, apart from the underl ying criminal case. 1 After consideri ng the p arties’ briefing on the issue, the record, and the applicable law, we find the appeal was improvidently docketed and this app eal must be dismissed. 2 On April 26, 2025, M r. Perez was arrested for Driving Under the Influence of Alcohol (“DUI”) in Monongalia Count y. The investiga ting o fficer al leged that Mr. Perez refused to submit to th e designated secondary chemical test of breath. On July 15, 2025, Mr. Perez re quested a r efusal review hearing, and the same was set for hearing in magistrate court on August 13, 2025. On July 24, 2025, the DMV sent a Represe ntation Memorandum to the Monongalia County Prosecuting Attor ney, asking her office to represent the DMV’s interests. On August 14, 2025, the mag istrate court entered its “Order: Failure to Prove Refusal of Secondar y Chemical T est” stat in g “that the State has failed to prove by a preponderance of the e vidence that t he defend ant refused to submit to a secondary ch emical test.” The related criminal charge was eve ntually resolved by a pl ea by Mr. Perez to a related charge of Reckless Driving for a fine of $500 and an agree ment that the charge 1 The DM V is represented by Attorney Gen eral John B. McCus key, Esq., and Assistant Attorney General Ela ine L. Skorich, Esq. Mr. Pe rez i s represented by Jared T. Moore, Esq. 2 The Court acknowle dges that the briefing of the parties was helpful in rendering this decision. FILED February 27, 2026 ASHLEY N. DEE M, CHIEF DEPUTY C LERK INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

2 would not be expu ngable. The refusal review issue was assigne d a separate case number from the criminal matter. On September 9, 202 5, the DMV filed a Petiti on for Appeal of Bench Trial which sought to appeal th e ref usal matter to circuit co urt. On September 26, 2025, Mr. Perez filed Defendant’s Motion to Dismiss Appeal. On October 30, 2025, th e circuit court heard argument on the motion to dismiss. Followi ng the hearing, on No vember 7, 2025, the circuit court en tered its Order Granting Defendant’s Motion to Dis miss Appeal. In that order, the circ uit court noted that based on th e record and proffers of counsel, no refusal hearing actua lly too k p lace in magistrate court and therefo re there was no record for the circuit court to review. Further, the circuit court noted that S.B. 130 (2020) eliminated the Office of Administrat ive Hearings (“OAH”) and transferred juri sdiction for refusal hearings t o the c ourts, where county prosecut ors represe nt the State’s interest. The circuit court concluded that the DMV w as unable to identify any statutory a uthority that gave the DMV the abil ity to appear as a party to refusal review hearings or appeal refusal r eview hearings. Accordingly, the circuit court conc luded that the DMV was divested of any statutory authority to prosecute DUI refusal matters by virtue of S.B. 1 30 and there fore the appeal should be dismissed. On Decembe r 4, 2025, the DMV filed its notice of appeal of the circuit court’ s November 7, 2025, order with this C ourt. O n December 15, 2025, this Court enter ed a scheduling order direct ing the parties to file supplemental b riefing on the issue of w hether a refusal review hearing is a separate civil proceeding, apart from the underlying crimina l case. On Decemb er 30, 2025, the D MV filed its sup plemental brief ing arguin g that the refusal re view issue constitutes a separate civi l proceeding. On Janua ry 8, 2026, Mr. Per ez filed his supple mental briefing arguing that the refusal review is sue is a part of the underlying criminal pr oceeding. “It is, of course, axiomatic that a court of limited appellate jurisdiction is obliged to examine its own power to hear a particular case.” James M.B. v. Caro lyn M., 193 W. Va. 289, 292, 456 S.E.2d 16, 19 (1995). In its current form, West Virgi nia Code § 51-11-4(b)(1) (2024) states t hat this Court has appe llate jurisdiction over “[f]inal judgments or orders of a circuit cour t in all civil cases[.]” However, West Virginia Code § 51-11-4(d)(1) provides that this Court does not have appel late juri sdiction over “ [j]udgments or final orders issued in any criminal procee ding in this state[.] ” The question then is whether the underl ying order on appeal constitutes a n order issued in a criminal proceeding 3 or w hether it is an order issued in a separa te civil proceeding. 3 While West Virginia Code § 51-11- 4(d)(1) specifically provides t hat this Court has no appellate jurisdiction over “[j] udgments or final orders” in criminal proce edings, absent limited exceptions inapplicable in this matter, this Court also lacks appellate jurisdiction over “interlocutory a ppeals.” W. Va. Code § 51 -11-4(d)(8). Therefore, thi s

3 To answer the ques tion, a review of the statutor y scheme before and after enactment of S.B. 130 is helpful. Prior to the statutory overhaul that occurred with the enactme nt of S.B. 130 in 2020, the administrative driver’s license rev ocation process was separate from the criminal matter in DUI cases. Under the old scheme, reg ardless of how the criminal matter was resolved, the DMV would have re voked Mr. Perez’s license for refusal of the secondary test based o n the DMV’s receipt of a written statement from the invest igating officer indicating, amongst other things, that the driver refused t o submit to the seco ndary chemical test. See W. Va. Code § 17C-5-7 (1 986). In 2010, the West Virginia Legislature created the OAH to hear and determine administrative appea ls from the DMV’s license revocations. See W. V a. Code § 17C - 5C -1(a) (2010) (creating the OAH); W. Va. Code § 17C-5C-3(3) (2010) (conferring upon OAH appeal author ity over refusal revocation decisions); W. Va. Co de § 17C-5A- 2 (2 010) (creating process for OAH appeal). In those appeals, in a proc ess that was entirely distinct from th e related criminal proc eeding, the OAH would consider, upon a de signated record and af ter a hearing, whether to affi rm, reverse, or mod ify the decision of the DMV to revoke a driver’ s license to operate a motor vehicle. W. Va. Code § 17C-5A-2 (2010). Essentially, in addition to defending against the criminal charge, a driver, such as Mr. Perez, would have to se parately contest the administrative licens e revocation befo re the OAH, where the recor ds in the DMV’s file would be automatically admitted into evidence. See Frazier v. H arless, No. 20-0127, 2021 WL 195293, at *5 (W. Va. Jan. 20, 2021) (memorandum decision) (stating that testimony from in vestigating of ficer is not required, and documentary evidence from DMV file can form the basis for a re vocation decision.). T his cou ld result in the driver’s license being revoked without the investigating officer having to appear to testify or be cr oss -exa mined. Id. However, as a cknowledged by the DMV in its briefing herein, the old scheme had significant other problems as well, which led to the statutory overhaul. See Reed v. Staffileno, 239 W. Va. 538, 545 -46, 803 S.E. 2d 508, 515 - 16 (2017) (finding that O AH’s three -year delay in entering revocation decision followi ng the hearing was prejudicial, resulting in violations of driver’s due process rights). S.B. 130 was en acted, in part, to “provid[e] for a hearing before the court to contest a documented refusal to submit to a secondary chemical test” and “eli minat[e] all statutory provisions authorizi ng or requiring the [DMV]... to take admi nistrative action u pon an individ ual’s licen se on the basis of... refu sal to submit to a seconda ry test abse nt direction from court.” S.B. 130, 2020 Leg., Re g. Sess. (W. Va. 2020). With t he enactme nt of S.B. 130, the Legislature eliminated the sep arate administrative rev ocation process by eliminating the OAH and repealing West Vir ginia Code § 1 7C-5A-2, which prov ided for the separate administrative process. Further, since the enactmen t of S.B. 130, the applicable statutes governing refu sal review matters are contained in Chapter 17 C, Article 5, which is Court has no ap pellate jurisdictio n over orders enter ed in criminal pro ceedings, regardles s of whether they are fi nal or interlocutory.

4 titled “Serious Traf fic Offenses” and contai ns criminal statute s for various forms of vehicular homicide, D UI, and reckless drivin g. In addition to eliminati ng the OAH and repealing the statutory scheme for a separat e administrative process, the Legislat ure enacted West Virginia Code § 17C-5-7a(b) (2020), which states: (b) Effective July 1, 20 20, the court shall enter an order finding that a person charged with a violation of § 17C-5-2 of this code did refuse to submit to a secondary c hemical te st, as required by § 17C-5-4 of this code, subject to the following: (1) At t he person ’ s firs t appearance before t he court, the court shall advise the person that his or her license to operate a motor vehicle shall be revoked for the applicable period provided in subsection (e) of this sectio n, unless the person requests a refusal review hearing within the 30 days foll owing t he first appeara nce; (2) If the person does not reque st a refusal review hearing within 30 days following the first appearance, the co urt shall enter an orde r finding that a person c harged with a violation of § 17C-5 -2 of this code did refuse to sub mit to a secondary che mical test; and (3) If the person r equests a refusal review hearing within 30 days following the first appearance, the court shall conduct the revie w and enter the appropr iate order, as provided in subsection (c) of this section. (emphasis added). Further, West Virginia Code §17C-5- 7a (d) (2 020) provides that “[t] he clerk of the court in which the charges are pending shall immediately transmit any orde r entered pursuant to this section to the Commissio ner of the Division o f M otor Vehicles. ” (emp hasis added). The history of the stat utory scheme, the pla cement of th e applicable statutes in Chapter 17C, Article 5, and t he above quoted statutes ’ re ferences to “person ch arged, ” “first appearance, ” and “court in which the cha rges are pending, ” indi cate that since 2020, the issue of an alleged refusal of the secondary chemic al test is determined by a court of law as part of the cri minal proceeding. While there may be go od reasons t o su pport the DM V’s contention that the issue of an allege d refusal of the secondary chemical test should be a sepa rate civil matter, our

5 Court’s ju risdiction is defined by statute and it would be inappropriate for us to e xpand o ur statutory jurisdiction without clear authority. The DMV cites no precedent from the Supreme Court of App eals of West Virginia since the enactment of S.B. 130 or subsequent legislation pas sed, or rules adopted by, the West Virginia Legislature t hat indicates that the L egislature intended for the administr ative revocation process to be a separate c ivil proceeding. Therefore, in the absence of such authority, we determin e that we do not have jurisdiction to review the underlying “Order: Failure to Prove Refusal of Secondary Chemical Test” as it is an order issued in a criminal proceeding. Accordingly, base d on the foregoing, we conclude that the DMV’s appeal of the November 7, 2025, order was improvidentl y docketed and, there fore, the appeal is dismissed. Dismissed. ISSUED: February 27, 2026 CONCURRED IN B Y: Chief Judge Daniel W. Greear Judge Charles O. L orensen Judge S. Ryan White