Court says judge shouldn't have allowed new arguments

By Justin Anderson | Jun 22, 2009

CHARLESTON – The West Virginia Supreme Court says a circuit judge should not have allowed a woman to introduce new arguments when she appealed the revocation of her driver's license.

Kanawha Circuit Court Judge Tod Kaufman on Nov. 16, 2007, reversed former state Division of Motor Vehicles Commission Joseph Cicchirillo's final order revoking the license of Sharon G. Noble.

Cicchirillo moved to revoke Noble's license after she was arrested by Ronceverte police on Jan. 12, 2007, and charged with drunken driving.

The commissioner's action came after a DMV hearing examiner determined that revocation was in order.

Noble argued to Kaufman that the revocation should not stand because the arresting officer didn't make Ronceverte's ordinance against drunken driving into the record.

She argued state law requires the DMV commissioner to make findings that a municipal drunken driving ordinance contains the same elements as the state law.

She said that since the officer did not introduce a copy of the local ordinance into the record, she had no opportunity to defend herself against the specifics of the ordinance. And there was no way for the commissioner to determine whether the ordinance mirrored state law.

Kaufman agreed with Noble and ordered her driving privileges reinstated.

But the DMV, in its appeal to the Supreme Court, said it was improper for Kaufman to permit the argument about the ordinance, because Noble didn't bring it up during the DMV hearing.

The agency said it was improper because the circuit court was acting in an appellate role.

The unsigned opinion, released June 11, cited part of a 1999 decision that said the court's general rule "is that non-jurisdictional questions ... raised for the first time on appeal, will not be considered."

"Ms. Noble's argument, while novel, was raised for the first time before the circuit court," the opinion says. "In other words, Ms. Noble asked the circuit court to consider a non-jurisdictional question, outside the record made before the commissioner, that was made for the first time on appeal. It was error for the circuit court to have granted relief and to have set aside the commissioner's final order under these circumstances."

Supreme Court case number: 34328

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