Carte v. Cline, 23862
| Decision Date | 15 July 1997 |
| Docket Number | No. 23862,23862 |
| Citation | 488 S.E.2d 437,200 W.Va. 162 |
| Parties | Mark A. CARTE, Petitioner Below, Appellee, v. Jane L. CLINE, Commissioner, Division of Motor Vehicles, State of West Virginia, Respondent Below, Appellee, v. Douglas W. ROYER, Intervenor/Respondent Below, Appellant. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. An arresting officer in a DUI case is a party to a license revocation hearing, within the meaning of W.Va.Code § 17C-5A-1, et seq., and within the meaning of the State Administrative Procedures Act,W.Va.Code § 29A-1-1, et seq., who has standing to appeal an adverse administrative decision.
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." Syllabus Point 2, Albrecht v. State, 173 W.Va. 268, 314 S.E.2d 859 (1984).
3. W.Va.Code § 17C-5A-1a (a) (1994) does not require that a police officer actually see or observe a person move, drive, or operate a motor vehicle while the officer is physically present before the officer can charge that person with DUI under this statute, so long as all the surrounding circumstances indicate the vehicle could not otherwise be located where it is unless it was driven there by that person.
Pamela Games-Neely, Prosecuting Attorney, Martinsburg, for Appellee Carte.
Darrell V. McGraw, Jr., Attorney General, Jacquelyn I. Custer, Senior Assistant Attorney General, Charleston, for Appellee Cline.
Robert C. Stone, Jr., Martinsburg, for Appellant.
Appellant, Douglas W. Royer, appeals an order entered by the Circuit Court of Berkeley County, West Virginia, on March 16, 1996. The circuit court's order affirmed a prior reversal of the order of the Commissioner of the Division of Motor Vehicles (Commissioner). The court's previous order had reinstated the appellant's driving privilege after his license had been revoked for driving under the influence of alcohol. Appellant contends the circuit court erred by concluding the arresting officer, Sergeant Mark Carte, has standing to appeal the Commissioner's order and in concluding the Commissioner's order resulted from an error of law and was clearly wrong. We believe the circuit court was correct, and therefore, we affirm the order of the Circuit Court of Berkeley County.
On June 11, 1994, appellant was arrested by Sergeant Mark Carte and charged with driving under the influence of alcohol. Pursuant to W.Va.Code § 17C-5A-1(c) (1994), 1 the appellant's privilege to drive was administratively revoked by order of Jane Cline, the Commissioner of the Division of Motor Vehicles of the State of West Virginia (DMV). The appellant appealed the administrative revocation and was granted an administrative hearing, pursuant to W.Va.Code § 17C-5A-2 (1994), 2 on April 26, 1995.
At the administrative hearing, Sergeant Mark Carte testified that he received a call at approximately 4:20 A.M. during the morning of April 11, 1994. The caller stated that a suspicious vehicle was sitting at a stop light in the access driveway of the K-Mart Store and Lowe's parking lot, which enters onto State Route 45 in Berkeley County, West Virginia. The officer went to the scene and there observed a 1991 blue Camaro sitting at the intersection with the appellant slumped behind the wheel. The appellant appeared to be passed out with the engine running, the transmission in drive, and his foot on the brake. The officer awoke the appellant and had him shut off the engine. While speaking with the appellant, the officer noticed the odor of alcohol on the appellant's breath.
The officer asked to see the appellant's drivers license, registration, and insurance information. The appellant provided the documentation. The officer then asked the appellant to get out of the vehicle and perform three field sobriety tests, the walk and stand test, the one leg stand test, and the horizontal gaze nystagmus (HGN) test. The officer noted the appellant was unable to properly complete any of the three tests, so the appellant was placed under arrest for driving under the influence of alcohol (DUI).
The appellant was provided a copy of the West Virginia Implied Consent Law, which was explained to him. He agreed to take the intoxilyzer test. 3 The appellant was then read his Miranda rights, 4 and he agreed to give an interview about the incident. When asked if he had been driving, the appellant answered "you know I was;" when asked where he was going, he replied "going home." He did not know the name of the street or highway on which he was driving, but stated that his direction of travel was "south." When asked if he had been drinking, he replied "yes"; when asked what he had been drinking, he replied "beer"; and when asked how much, he replied "ten or twelve."
On cross-examination, the appellant asked Sergeant Carte only one question; that is, if the vehicle was stationary when the officer arrived on the scene. The officer responded that it was. The appellant presented no witnesses and did not testify in his own behalf at the administrative hearing.
On September 29, 1995, the Commissioner entered an order, which reversed the appellant's drivers license revocation and reinstated his driving privileges. The order concludes "the State failed to present sufficient evidence to prove Douglas W. Royer drove a motor vehicle, in this State, while under the influence of alcohol, controlled substance or drugs," and relies on the definition of "driving" as it is stated in State v. Taft, 143 W.Va. 365, 102 S.E.2d 152 (1958). Syllabus Point 1 of Taft states, in part, "there must be an intentional movement of the automobile by the defendant." Thereafter, Sergeant Carte, with the assistance of the Berkeley County Assistant Prosecuting Attorney, 5 filed a petition for appeal in the Circuit Court of Berkeley County, seeking review of the Commissioner's final order. On appeal to the circuit court, the Commissioner was represented by the Attorney General of West Virginia.
The central issue below was whether the trooper had standing to seek appellate review of an adverse ruling following an administrative hearing. A secondary issue was whether the Commissioner was justified in relying upon State v. Taft, 143 W.Va. 365, 102 S.E.2d 152 (1958), to conclude the trooper offered insufficient evidence to prove the appellant had intentionally operated a motor vehicle on June 11, 1994.
The circuit court entered an order on January 23, 1996, concluding that "Trooper Carte was and is a 'party' within the meaning of W.Va.Code § 17C-5A-1 et seq. and within the meaning of the [Administrative Procedures] Act, therefore Trooper Carte has standing to file the instant appeal." The court also found the Commissioner's ruling that the appellant did not drive a motor vehicle while under the influence of alcohol as defined by State v. Taft, 143 W.Va. 365, 102 S.E.2d 152 (1958), was clearly wrong and resulted from an error of law. The Commissioner's order was found to be insufficient because it contained no findings of fact or conclusions of law, pursuant to W.Va.Code § 29A-5-3 (1964). Therefore, the case was remanded to the DMV for further proceedings. The appellant filed a motion to alter or amend the court's judgment, which motion was denied by the court on March 14, 1996. It is from this order that the appellant brings this appeal.
In Muscatell v. Cline, 196 W.Va. 588, 594-95, 474 S.E.2d 518, 524-25, (1996), this Court discussed the standard of review for administrative orders that are appealed to this Court following appeal to the circuit court, by stating:
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) (1964) 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. Philyaw v. Gatson, 195 W.Va. 474, 466 S.E.2d 133 (1995), and W.Va.Code § 29A-5-4-(g) (1964).
In cases where the circuit court has amended the result before the administrative agency, this Court reviews the final order of the circuit court and the ultimate disposition by it of an administrative law case under an abuse of discretion standard and reviews questions of law de novo. Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995).
This is a case of first impression in West Virginia. The appellant's main thrust on appeal is that the circuit court erred by concluding that Sergeant Carte has standing to appeal the Commissioner's order. Appellant argues there is no statutory scheme provided in the traffic regulations section of the West Virginia Code for an officer to appeal the reinstatement of a license revocation, and the State Administrative Procedures Act (APA), W.Va.Code § 29A-5-4(g) (1964), only sanctions review by a court if the "substantial rights of the petitioner" have been prejudiced. Therefore, it is the position of the appellant that the arresting officer lacks standing to appeal the license reinstatement. The Commissioner concurs with the appellant and asserts that only the licensee is entitled to seek judicial review. Sergeant Carte argues he has standing to appeal the reinstatement of a license revocation because as the arresting officer, he was treated as a party in all respects and is referred to as a party in the state regulations. After careful consideration, we agree that the right to seek circuit court review extends to the arresting officer, as well as to the licensee and the Commissioner.
The procedure by which a license to operate a motor vehicle is revoked is...
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