Albrecht v. State

Decision Date21 March 1984
Docket NumberNo. 16017,16017
Citation314 S.E.2d 859,173 W.Va. 268
CourtWest Virginia Supreme Court
PartiesMichael J. ALBRECHT v. STATE of West Virginia, W.Va. Dept. of Motor Vehicles, et al.

Syllabus by the Court

1. There are no provisions in either W.Va.Code, 17C-5-1 (1981), et seq., or W.Va.Code, 17C-5A-1 (1981), et seq., that require the administration of a chemical sobriety test in order to prove that a motorist was driving under the influence of alcohol or drugs for purposes of making an administrative revocation of his driver's license.

2. Where there is evidence reflecting that a driver was operating a motor vehicle upon a public street or highway, exhibited symptoms of intoxication, and had consumed alcoholic beverages, this is sufficient proof under a preponderance of the evidence standard to warrant the administrative revocation of his driver's license for driving under the influence of alcohol.

Shuman, Annand & Poe, Charles R. Bailey, Charleston, for appellant.

Fredrick S. Wilkerson, Asst. Atty. Gen., Charleston, for appellees.

MILLER, Justice:

This case involves an appeal by Michael J. Albrecht from a final order entered by the Circuit Court of Kanawha County on April 13, 1983. The order affirmed a suspension of his driver's license by the Department of Motor Vehicles for driving under the influence of alcohol. Mr. Albrecht's primary contention is that an administrative revocation of his license could not occur unless he had been given one of the statutorily designated chemical tests. He also asserts that there was insufficient evidence to support the revocation. We disagree and, therefore, affirm the suspension.

On the evening of February 27, 1982, Trooper Charles W. McDonald of the West Virginia Department of Public Safety received a call requesting him to investigate a traffic accident on Route 16 near Stemson, West Virginia. When he arrived at the scene of the accident, he found a Chevrolet van resting against a utility pole approximately seven or eight feet from the roadway. Mr. Albrecht, who had been driving the van at the time of the accident, was still inside the vehicle.

Trooper McDonald noticed that Mr. Albrecht had difficulty in getting out of the van. When he finally emerged, he was incoherent, staggered, and had to be helped to the trooper's car because he was unable to stand without assistance. Trooper McDonald also noticed that the interior of the van smelled of alcohol. On the basis of these observations, he concluded that Mr. Albrecht was very intoxicated, and arrested him for driving under the influence of alcohol.

Sometime during the night of his arrest, Mr. Albrecht was taken to Calhoun County General Hospital for treatment of his injuries. While he was at the hospital, he admitted to Trooper McDonald that he had consumed two or three twelve-ounce bottles of beer before the accident. He remained at the hospital for three or four days because of the concussion he had sustained when the van hit the utility pole. Upon his release, he was immediately taken before a magistrate for purposes of arraignment.

On March 1, 1982, Trooper McDonald filed an affidavit concerning the arrest with the Department of Motor Vehicles as required by W.Va.Code, 17C-5A-1(b) (1981). The Department entered an order on March 17, 1982, suspending Mr. Albrecht's license on the ground that he had been driving under the influence of alcohol. Mr. Albrecht requested a hearing with regard to this suspension.

On September 15, 1982, a hearing examiner for the Department of Motor Vehicles conducted a hearing at which Trooper McDonald and Mr. Albrecht appeared. Both testified that no one had tested Mr. Albrecht's blood, breath or urine either before or after the arrest. The Department entered a further order dated November 1, 1982, affirming the suspension of Mr. Albrecht's license.

Mr. Albrecht then filed a petition for judicial review in the Circuit Court of Kanawha County and on April 13, 1983, the court upheld the order of suspension entered by the Department.

I.

Mr. Albrecht maintains that the Commissioner of Motor Vehicles had to rescind the initial suspension of his license unless she found that a chemical sobriety test had been properly performed. He bases his argument on the language of W.Va.Code, 17C-5A-2(c) (1981), which requires the Commissioner to make certain findings when a hearing is requested. His argument is that finding number (3) requires the administration of chemical tests in cases such as his:

"The commissioner shall make specific findings as to (1) whether the arresting law-enforcement officer had reasonable grounds to believe such person to have been driving while under the influence of alcohol, controlled substances or drugs, (2) whether such person was lawfully placed under arrest for an offense involving driving under the influence of alcohol, controlled substances or drugs, and (3) whether the tests which were administered were administered in accordance with the provisions of this article and article five of this chapter."

Preceding this language in the same subsection, however, is the following language:

"The principal question at such hearing shall be whether the person did drive a motor vehicle while under the influence of alcohol, or under the influence of any controlled substance, or under the influence of any other drug to a degree which renders him incapable of safely driving, or under the combined influence of alcohol and any controlled substance or any other drug to a degree which renders him incapable of safely driving, or did drive a motor vehicle while having an alcoholic concentration in his blood of ten hundredths of one percent (.10), or more, by weight." (Emphasis supplied)

Driving under the influence of alcohol and driving with an alcoholic concentration of .10% are separate grounds for suspension of a driver's license. This is quite clear from the wording of W.Va.Code, 17C-5A-1(a) (1981), which also states the grounds for revocation of a driver's license in the disjunctive. 1 We have traditionally held that where the disjunctive "or" is used, it ordinarily connotes an alternative between the two clauses it connects. State v. Elder, 152 W.Va. 571, 577, 165 S.E.2d 108, 112 (1968). A chemical test is obviously necessary to establish the concentration of alcohol in a person's blood when that is the intended basis for revocation. However, this does not foreclose proof by other means of another ground for revocation, such as driving under the influence of alcohol.

We are reinforced in this conclusion by W.Va.Code, 17C-5-8, which discusses the admissibility and evidentiary value of chemical tests. The last sentence of that provision clearly indicates that other evidence can be used to establish intoxication: "The provisions of this article shall not limit the introduction in any administrative or judicial proceeding of any other competent evidence bearing on the question of whether the person was under the influence of alcohol, controlled substances or drugs."

The appellant also relies on the second requirement mentioned in the above quoted language from W.Va.Code, 17C-5A-2(c) "whether such person was lawfully placed under arrest for an offense involving driving under the influence of alcohol." Mr. Albrecht points to the following language from W.Va.Code, 17C-5-4 (1981):

"A secondary test of blood, breath, or urine shall be incidental to a lawful arrest and shall be administered at the direction of the arresting law-enforcement officer having reasonable grounds to believe the person to have been driving a motor vehicle upon the public streets or highways while under the influence of alcohol ... as prohibited by section two [ § 17C-5-2] of this article." (Emphasis supplied)

According to his interpretation of this provision, a secondary test of blood, breath or urine must be administered whenever an arrest is made. If the test is not performed, then the arrest is unlawful.

W.Va.Code, 17C-5-4 (1981), deals with the State's right to require a motorist to undergo a chemical test for determining the alcoholic content of his blood. 2 It does not mandate testing in all cases involving an arrest for driving under the influence of alcohol or drugs. We find no language in this section that can be read to mean that chemical tests must be administered in every case.

The phrase "[a] secondary test of blood, breath or urine shall be incidental to a lawful arrest" means that the results of a chemical test are not admissible unless it was done in connection with, or "incidental" to, a lawful arrest. This is the construction we placed on this statutory language in State v. Byers, W.Va., 224 S.E.2d 726 (1976), where we found a blood test to be inadmissible because it was not taken incident to a lawful arrest.

We reject the appellant's contention that this language means that an arrest is unlawful unless a secondary test is performed. As Byers demonstrates, the lawfulness of an arrest is independently determined in light of general arrest principles. If the arrest is unlawful, then the results of a test are inadmissible.

Furthermore, we disagree with the appellant's argument that the language stating that a chemical test "shall be administered at the direction of the arresting law-enforcement officer" means that such...

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