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Nichols v. State7/3/2003
rt months earlier.
This Court has stated that "[a]lthough W.Va. Code 29A-5-4g [governing judicial review of contested administrative cases] outlines the circumstances when a circuit court must reverse an administrative order, the code provides little guidance on when '[t]he court may remand . . . for further proceedings.' . . . [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." Hinerman v. W.Va. Dept. of Motor Vehicles, 189 W.Va. 353, 355, 431 S.E.2d 692, 694 (1993). Having recognized a driver's license as "a property interest which requires the protection of this State's Due Process Clause before" it can be suspended, syl. pt. 1, in part, Jordan v. Roberts, 161 W.Va. 750, 246 S.E.2d 259 (1978), this Court is reluctant to deprive Appellant of that interest given the failure of both Appellant and Deputy Webb to appear at the scheduled DUI hearing. "'Aside from all else, due process means fundamental fairness.'" Choma v. W.Va. Div. of Motor Vehicles, 210 W.Va. 256, 260, 557 S.E.2d 310, 314 (2001) (quoting Pinkerton v. Farr, 159 W.Va. 223, 230, 220 S.E.2d 682, 687 (1975).).
Accordingly, we find the elements of mandamus have been met in this case. Appellant timely requested a DUI hearing. His failure to appear at the scheduled hearing due to his good faith belief that his appearance was not required and Deputy Webb's failure to appear implicate application of both 91 C.S.R. §§1-3.7.1 and 2. Under these unique facts, it is unclear whether the revocation of Appellant's driver's license should be restored or dismissed. As a matter of fundamental fairness then Appellant should be afforded another DUI hearing. Because it is the Commissioner's legal duty to conduct such hearing and because Appellant has no other adequate remedy, a writ of mandamus should have been granted by the circuit court. Accordingly, we reverse the circuit court's May 28, 2002 Order and we remand this matter to the circuit court with directions to enter an order granting Appellant the mandamus relief he seeks.
IV. CONCLUSION
For the reasons stated, the May 28, 2002 order of the Circuit Court of Kanawha County is reversed to the extent it denied Appellant's petition for a writ of mandamus and we remand this case to the circuit court with directions to compel the Commissioner to afford Appellant a DUI hearing.
Reversed and remanded with directions.
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