724 S.E.2d 768 (W.Va. 2012), 11-0171, White v. Miller

Docket Nº:11-0171.
Citation:724 S.E.2d 768, 228 W.Va. 797
Opinion Judge:KETCHUM, C.J.:
Party Name:Dr. Joe J. WHITE, Jr., Petitioner Below, Petitioner v. Joe E. MILLER, Commissioner, West Virginia Division of Motor Vehicles, Respondent Below, Respondent.
Attorney:Carter Zerbe, Esq., David Pence, Esq., Carter Zerbe & Associates, PLLC, Charleston, WV, for the Petitioner. Darrell V. McGraw, Jr., Attorney General, Janet E. James, Senior Assistant Attorney General, Charleston, WV, for the Respondent.
Judge Panel:Justice DAVIS concurs and reserves the right to file a concurring opinion. Justice WORKMAN concurs, in part, and dissents, in part, and reserves the right to file a concurring and dissenting opinion. Justice BENJAMIN disqualified. DAVIS, J., concurring: WORKMAN, Justice, concurring, in part, and ...
Case Date:March 26, 2012
Court:Supreme Court of Appeals of West Virginia
 
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Page 768

724 S.E.2d 768 (W.Va. 2012)

228 W.Va. 797

Dr. Joe J. WHITE, Jr., Petitioner Below, Petitioner

v.

Joe E. MILLER, Commissioner, West Virginia Division of Motor Vehicles, Respondent Below, Respondent.

No. 11-0171.

Supreme Court of West Virginia.

March 26, 2012

Submitted March 6, 2012.

Page 769

[Copyrighted Material Omitted]

Page 770

Syllabus by the Court

1. The horizontal gaze nystagmus test is a field sobriety test, and a driver's performance on the test is admissible as evidence that the driver may have consumed alcohol and may, therefore, be impaired. The results of the horizontal gaze nystagmus test are entitled to no greater weight than other field sobriety tests such as the walk-and-turn test and the one-leg stand test.

2. Upon a challenge by the driver of a motor vehicle to the admission in evidence of the results of the horizontal gaze nystagmus test, the police officer who administered the test, if asked, should be prepared to give testimony concerning whether he or she was properly trained in conducting the test, and assessing the results, in accordance with the protocol sanctioned by the National Highway Traffic Safety Administration and whether, and in what manner, he or she complied with that training in administering the test to the driver.

3. A driver's license to operate a motor vehicle in this State cannot be administratively revoked solely and exclusively on the results of the driver's horizontal gaze nystagmus test. Rather, additional evidence in conjunction with the horizontal gaze nystagmus test is required for revocation: for example, the results of other field sobriety tests; the results of a secondary chemical test; whether the vehicle was weaving on the highway; whether the driver admitted consuming an alcoholic beverage; whether the driver exhibited glassy eyes or slurred speech; and/or whether the odor of an alcoholic beverage was detected.

4. " Sobriety checkpoint roadblocks are constitutional when conducted within predetermined

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operational guidelines which minimize the intrusion on the individual and mitigate the discretion vested in police officers at the scene." Syl. pt. 1, Carte v. Cline, 194 W.Va. 233, 460 S.E.2d 48 (1995).

5. " A person who wishes to challenge official compliance with and adherence to sobriety checkpoint operational guidelines shall give written notice of that intent to the commissioner of motor vehicles prior to the administrative revocation hearing which is conducted pursuant to W.Va.Code § 17C-5A-2." Syl. pt. 2, Carte v. Cline, 194 W.Va. 233, 460 S.E.2d 48 (1995).

6. " Where there is a direct conflict in the critical evidence upon which an agency proposes to act, the agency may not select one version of the evidence over the conflicting version unless the conflict is resolved by a reasoned and articulate decision, weighing and explaining the choices made and rendering its decision capable of review by an appellate court." Syl. pt. 6, Muscatell v. Cline, Comm'r, 196 W.Va. 588, 474 S.E.2d 518 (1996).

Carter Zerbe, Esq., David Pence, Esq., Carter Zerbe & Associates, PLLC, Charleston, WV, for the Petitioner.

Darrell V. McGraw, Jr., Attorney General, Janet E. James, Senior Assistant Attorney General, Charleston, WV, for the Respondent.

KETCHUM, C.J.:

This case is before this Court upon the appeal of Dr. Joe J. White, Jr., (" White" ) from the December 13, 2010, order of the Circuit Court of Kanawha County. The order affirmed the decision of the Commissioner of the West Virginia Division of Motor Vehicles to revoke White's license to operate a motor vehicle in this State for six months. The basis of the revocation was the determination of a police officer at a sobriety checkpoint that White was driving while under the influence of alcohol. White denies that he was under the influence of alcohol, challenges the admissibility of the horizontal gaze nystagmus test as an indicator that he was intoxicated, and challenges the lawfulness of the sobriety checkpoint.

Upon careful examination of the record and the briefs and argument of counsel, this Court is of the opinion that the order of the circuit court affirming the Commissioner's decision to revoke White's license should be reversed. In so ruling, although this Court confirms and clarifies the admissibility of evidence concerning the horizontal gaze nystagmus test as a field sobriety test, we conclude that White is entitled to a new administrative hearing based upon his challenge to the sobriety checkpoint.

Accordingly, the December 13, 2010, order of the Circuit Court of Kanawha County is reversed, and this case is remanded to the administrative level solely on the issue of the lawfulness of the sobriety checkpoint.

I.

Factual Background

On July 6, 2007, at 8:22 p.m., White, driving a Toyota Highlander, was stopped by police at a sobriety checkpoint on MacCorkle Avenue in Charleston, West Virginia. White, a 51 year-old medical doctor, had worked ten hours that day at a local hospital. White had not been speeding or driving erratically and was calm and cooperative at the checkpoint. Charleston Police Officer B. Lightner, however, detected the odor of an alcoholic beverage on White's breath and noticed that his eyes were glassy. White was unsteady in stepping out of his vehicle. White informed Officer Lightner that he had consumed four beers over an hour and a half period after leaving the hospital.1

Officer Lightner directed White to perform three field sobriety tests: (1) the walk-and-turn test, (2) the one-leg stand test and (3) the horizontal gaze nystagmus test. According to Officer Lightner, White failed all three tests and also failed a preliminary breath

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test.2 White's secondary chemical test, however, later conducted at the police department, revealed a blood alcohol content of .076, below the statutory limit of .08 in West Virginia. See, W.Va.Code, 17C-5A-1 [2004].3 See also, Code of State Rules: 64-10-1. [2005], et seq. (concerning methods and standards for chemical tests for intoxication). Moreover, shortly after taking the field sobriety tests, White, whose left leg is about half an inch shorter than his right leg, informed Officer Lightner that he walks with a limp. White's comment about his limp was noted in the Interview section of the police Information Sheet completed that evening. Referring to the walk-and-turn and one-leg stand tests, White subsequently testified that the limp affects his balance.

Officer Lightner placed White under arrest for first offense driving under the influence of alcohol, W.Va.Code, 17C-5-2 [2007], and filed a statement to that effect with the Division of Motor Vehicles.4

II.

Procedural Background

Soon after, White's license to operate a motor vehicle in this State was administratively revoked for six months by the Division of Motor Vehicles. White, represented by counsel, challenged the revocation, and an evidentiary hearing was conducted on April 23, 2008.

Two witnesses for the State testified: Charleston Police Sergeant Shawn Williams and Officer Lightner. Sergeant Williams, the police department's Highway Safety Director, supervised the sobriety checkpoint on July 6, 2007, and testified that the checkpoint was established and conducted pursuant to standardized, predetermined guidelines. The location for the checkpoint, for example, was selected on the basis of traffic volume, accident data and alcohol related arrests. The location was also selected on the basis of visibility in relation to motorists and police officers and the availability of nearby parking areas. Williams further testified that the media was advised of the checkpoint in advance by mass e-mail. Moreover, Williams stated that a section of Kanawha Boulevard, in Charleston, was selected as an alternate route for drivers seeking to avoid the checkpoint.5

Officer Lightner testified that he had been trained to administer field sobriety tests, as were other police officers in this State, pursuant to the manual issued by the National Highway Traffic Safety Administration (" NHTSA" ). Section VIII of the manual is entitled " Concepts and Principles of the Standardized Field Sobriety Tests" and includes instructions for the walk-and-turn test, the one-leg stand test and the horizontal gaze nystagmus test. Officer Lightner testified that he explained the horizontal gaze nystagmus test to White and explained, and demonstrated, the walk-and-turn and one-leg

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stand tests to him. White failed all three tests, as well as the preliminary breath test.

White objected to the submission by the State of the field sobriety tests and the results thereof on the ground that a proper foundation for admission of that evidence had not been established. In addition, he asserted that the horizontal gaze nystagmus test should not be considered because it lacked scientific reliability. White's objections were overruled by the hearing examiner. Moreover, White asserted, unsuccessfully, that his cross-examination concerning the validity of the sobriety checkpoint was rendered ineffective because he had not been provided with a copy of the standardized, predetermined guidelines referred to by Sergeant Williams.

During his subsequent testimony at the hearing, White denied driving while under the influence of alcohol and stated that his limp and altered sense of balance affected the way he stepped out of the Toyota Highlander as well as his performance on the walk-and-turn and one-leg stand tests. Moreover, emphasizing his medical training, White testified that nystagmus of the eyes can result from other causes, such as fatigue.

By decision effective May 11, 2009, the Commissioner of the...

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