Reed v. Riner

Decision Date24 September 2015
Docket NumberNo. 13–1180.,13–1180.
Citation778 S.E.2d 568,236 W.Va. 119
PartiesPatricia S. REED, Commissioner of the West Virginia Division of Motor Vehicles, Petitioner Below, Petitioner v. Robin J. RINER, Respondent Below, Respondent.
CourtWest Virginia Supreme Court

Patrick Morrisey, Attorney General, Elaine L. Skorich, Assistant Attorney General, Charleston, WV, for Petitioner.

Harley O. Wagner, The Wagner Law Firm, Martinsburg, WV, for Respondent.

Opinion

DAVIS, Justice:

This is an appeal brought by Petitioner Patricia S. Reed, Commissioner of the West Virginia Department of Motor Vehicles (“the DMV”)1, from an adverse judgment in the Circuit Court of Kanawha County. In its October 23, 2013, order, the circuit court affirmed an order issued by the Office of Administrative Hearings (“the OAH”) reversing a one-year revocation of Respondent Robin J. Riner's (Ms. Riner) drivers license for her failure to submit to a secondary chemical test.2The OAH reversed upon finding that the arresting officer failed to comply with the implied consent statute, West Virginia Code § 17C–5–7(2010) (Supp.2010).3The DMV herein contends that the circuit court erred by affirming the OAH's reversal of Ms. Riner's drivers license revocation on this basis. Upon our review of the parties' briefs and oral arguments, the appendix records designated for our consideration, and the pertinent authorities, we reverse and remand for the reinstatement of the revocation of Ms. Riner's drivers license.

I.FACTUAL AND PROCEDURAL HISTORY

On June 23, 2011, Corporal J. Jones (“Corporal Jones”) of the Berkeley County Sheriff's Department observed a vehicle driven by Ms. Riner cross the center line two times. Corporal Jones executed a traffic stop during which he smelled alcohol. At that time, Ms. Riner admitted that she had consumed one beer. Corporal Jones called for another officer to assist him, and Deputy A.T. Burns (“Deputy Burns”), also of the Berkeley County Sheriff's Department, came to the scene. Deputy Burns, the investigating officer, detected alcohol on Ms. Riner's breath and found that her eyes were bloodshot and that she was speaking quickly. He administered field sobriety tests and determined that she had failed the same. After administering a preliminary breath test (“PBT”),4he placed Ms. Riner under arrest for driving under the influence of alcohol, controlled substances, or drugs (“DUI”) in violation of West Virginia Code § 17C–5–2(2010) (Supp.2010).5

Deputy Burns transported Ms. Riner to the Berkeley County Sheriff's Department where he read to her an implied consent statement. He also gave her a written copy of that statement, which provides as follows:

Pursuant to state law (Chapter 17C, Article 5, Section 7) I am now directing you to take an approved secondary chemical test of your breath for the purpose of determining the alcoholic content of your blood. If you refuse to submit to this test, your privilege to operate a motor vehicle in this state will be revoked for a period of at least 45 days and up to life. If you refuse you will have fifteen minutes in which to change your mind after which time your refusal will be deemed final and the arresting officer will have no further duty to offer you this approved secondary chemical test.

Deputy Burns indicated on the written statement that Ms. Riner refused to sign her name. He then signed the implied consent statement where required.

On July 14, 2011, the DMV's Director of Driver Services sent an order of revocation to Ms. Riner. The order imposed a six-month revocation of her license to operate a motor vehicle in West Virginia for DUI and a one-year revocation resulting from her refusal to submit to the secondary chemical test. Ms. Riner appealed that order to the OAH, which conducted an administrative hearing on March 1, 2012. While providing sworn testimony before the OAH, Ms. Riner stated that, during the conversation in which Deputy Burns read the implied consent statement to her, he also told her three times that she did not have to take the test. She further testified that she “almost felt like he was telling [her] not to do it....” In response, Deputy Burns testified that it was his practice to read and explain the implied consent statement, in addition to answering questions about that statement. He stated that he told people the secondary chemical test was their choice and they did not have to take it if they did not want to do so. He explained that he would not “grab their head and force them [to submit to the test].” Following the hearing, the OAH entered its order affirming the revocation for DUI but reversing the revocation for refusing to submit to the secondary chemical test. As part of its findings, the OAH concluded that Deputy Burns failed to give Ms. Riner “an adequate oral warning of the consequences for refusing to submit to the secondary test....”

The DMV appealed to the Circuit Court of Kanawha County only that portion of the OAH order reversing the one-year revocation of Ms. Riner's license based on her refusal to submit to the secondary chemical test. By order entered on October 23, 2013, the circuit court affirmed the OAH's final order. Following that ruling, the DMV filed the instant appeal from the circuit court's order.6

II.STANDARD OF REVIEW

This Court previously has established the standards for our review of a circuit court's order deciding an administrative appeal as follows:

“On appeal of an administrative order from a circuit court, this Court is bound by the statutory standards contained in W. Va.Code § 29A–5–4(a)and reviews questions of law presented de novo;findings of fact by the administrative officer are accorded deference unless the reviewing court believes the findings to be clearly wrong.” Syllabus Point 1, Muscatell v. Cline,196 W.Va. 588, 474 S.E.2d 518 (1996).

Syl. pt. 1, Miller v. Epling,229 W.Va. 574, 729 S.E.2d 896 (2012). We also note that,

[u]pon 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.[']

Syl. pt. 2, Shepherdstown Volunteer Fire Dept. v. State ex rel. State of W. Va. Human Rights Comm'n,172 W.Va. 627, 309 S.E.2d 342 (1983). AccordSyl. pt. 2, Dale v. Ciccone,233 W.Va. 652, 760 S.E.2d 466 (2014)(per curiam). With these standards in mind, we will address the issues herein raised.

III.DISCUSSION

On appeal, the DMV asserts a single assignment of error: the circuit court and the OAH erred in creating a nonexistent requirement for compliance with West Virginia Code § 17C–5–7(a), the implied consent statute, as there is no requirement therein for an “adequate oral warning.” The DMV argues that the OAH, and the circuit court through its affirmation of the OAH's order, erred by turning the statements of Deputy Burns and Ms. Riner into a credibility issue in determining whether the oral warning given by Deputy Burns was adequate. In response, Ms. Riner contends that the officer went outside of the plain reading of the form by engaging in additional conversation with her; therefore, her refusal to submit to the secondary test was neither knowledgeable nor voluntary.

West Virginia Code § 17C–5–7(a)provides as follows:

If any person under arrest as specified in section four [§ 17C–5–4] [[7]of this article refuses to submit to any secondary chemical test, the tests shall not be given: Provided, That prior to the refusal, the person is given an oral warning and a written statement advising him or her that his or her refusal to submit to the secondary test finally designated will result in the revocation of his or her license to operate a motor vehicle in this state for a period of at least forty-five days and up to life; and that after fifteen minutes following the warnings the refusal is considered final. The arresting officer after that period of time expires has no further duty to provide the person with an opportunity to take the secondary test. The officer shall, within forty-eight hours of the refusal, sign and submit to the Commissioner of Motor Vehicles a written statement of the officer that: (1) He or she had reasonable grounds to believe the person had been driving a motor vehicle in this state while under the influence of alcohol, controlled substances or drugs; (2) the person was lawfully placed under arrest for an offense relating to driving a motor vehicle in this state while under the influence of alcohol, controlled substances or drugs; (3) the person refused to submit to the secondary chemical test finally designated in the manner provided in section four of this article; and (4) the person was given a written statement advising him or her that his or her license to operate a motor vehicle in this state would be revoked for a period of at least forty-five days and up to life if he or she refused to submit to the secondary test finally designated in the manner provided in section four of this article. The signing of the statement required to be signed by this section constitutes an oath or affirmation by the person signing the statement that the statements contained in the statement are true and that any copy filed is a true copy. The statement shall contain
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