Clower v. Wv. Dept. of Motor Vehicles

• Decision Date: 04 May 2009
• Docket Number: No. 34329.,34329.
• Citation: 678 S.E.2d 41
• Parties: Chad R. CLOWER, Petitioner Below, Appellee v. WEST VIRGINIA DEPARTMENT OF MOTOR VEHICLES, Joseph Cicchirillo, Commissioner, Respondent Below, Appellant.
• Court: West Virginia Supreme Court

678 S.E.2d 41

Chad R. CLOWER, Petitioner Below, Appellee v. WEST VIRGINIA DEPARTMENT OF MOTOR VEHICLES, Joseph Cicchirillo, Commissioner, Respondent Below, Appellant.

No. 34329.

Supreme Court of Appeals of West Virginia.

Submitted April 7, 2009.

Decided May 4, 2009.

Syllabus by the Court

1. "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." Syllabus Point 2, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996).

2. "Evidentiary findings made at an administrative hearing should not be reversed unless they are clearly wrong." Syllabus Point 1, Francis O. Day Co., Inc. v. Director, Division of Environmental Protection, 191 W.Va. 134, 443 S.E.2d 602 (1994).

3. A motorist who makes a turn at an intersection without first using a turn signal to notify others of the intent to make the turn does not violate the provisions of W.Va. Code, 17C-8-9 [1951], read in para materia with the provisions of W.Va.Code, 17C-8-8(a) [1999], where no other traffic may be affected by the movement of the motorist's vehicle.

4. "Police officers may stop a vehicle to investigate if they have an articulable reasonable suspicion that the vehicle is subject to seizure or a person in the vehicle has committed, is committing, or is about to commit a crime[.]" Syllabus Point 1, in part, State v. Stuart, 192 W.Va. 428, 452 S.E.2d 886 (1994).

5. "When evaluating whether or not particular facts establish reasonable suspicion, one must examine the totality of the circumstances, which includes both the quantity and quality of the information known by the police." Syllabus Point 2, State v. Stuart, 192 W.Va. 428, 452 S.E.2d 886 (1994).

Darrell V. McGraw, Attorney General, Janet James, Assistant Attorney General, Charleston, WV, for Appellant.

Carter Zerbe, Esq., Charleston, WV, Alan Riley, Esq., Romney, WV, for Appellee.

KETCHUM, J.

The respondent below and appellant, Joseph Cicchirillo, Commissioner of the West Virginia Division of Motor Vehicles ("the Commissioner"), appeals from an order of the Circuit Court of Hampshire County entered on the November 15, 2007. In its order, the circuit court reversed the Commissioner's administrative order revoking appellee's license to operate a motor vehicle in West Virginia following appellee's arrest for driving under the influence ("DUI"). Among several reasons for reversing the Commissioner, the circuit court found that the arresting officer did not have the "requisite reasonable suspicion" to stop the appellee's vehicle.

After careful consideration of the parties' arguments, the record designated for our consideration, and relevant authorities, we affirm the judgment of the circuit court.

I. Facts & Background

On June 25, 2006, at approximately 1:19 a.m., appellee Chad R. Clower was driving west on U.S. Route 50 within the city limits of Romney, West Virginia. Traveling behind Mr. Clower was Trooper C.T. Kessel of the West Virginia State Police. Trooper Kessel testified that he was returning to the State Police barracks and that his police cruiser and Mr. Clower's vehicle "... were the only vehicles [Trooper Kessel] noticed in that course of roadway at that time" and that Mr. Clower's vehicle "was approximately two city blocks" in front of Trooper Kessel's patrol vehicle.

Trooper Kessel further testified that while he was still approximately two city blocks behind Mr. Clower's vehicle, he saw Mr. Clower make a right turn onto northbound Bolton Street, and that Mr. Clower did not use a turn signal prior to making the turn. Trooper Kessel, who was traveling at about 25 miles per hour, testified that he then sped up his cruiser, turned right onto Bolton Street, and followed Mr. Clower for approximately 3 blocks before initiating a traffic stop of Mr. Clower.

In his testimony, Trooper Kessel stated that the sole justification for the stop was that Mr. Clower had failed to use his turn signal in violation of W.Va.Code, 17C-8-9, which states in part:

Any stop or turn signal when required herein shall be given either by means of the hand and arm or by a signal lamp or lamps or mechanical signal device[.]

No other justification for stopping Mr. Clower was offered.

After pulling Mr. Clower over, Trooper Kessel approached Mr. Clower's vehicle and requested Mr. Clower's insurance and registration information. While Mr. Clower was getting these documents, Trooper Kessel testified that he observed Mr. Clower's eyes to be "glassy"¹ and bloodshot and that Mr. Clower also had slurred speech. Further, Trooper Kessel said he detected the odor of an alcoholic beverage. Trooper Kessel then had Mr. Clower exit the vehicle and perform three field sobriety tests—the walk-and-turn test, one-leg stand test, and the gaze nystagmus. Following these field sobriety tests, Trooper Kessel concluded that probable cause existed to believe that Mr. Clower was DUI. Trooper Kessel then administered a preliminary breath test with an Intoxilyzer which Mr. Clower failed. Mr. Clower was then arrested for suspicion of DUI and taken to the State Police barracks. At the State Police barracks Mr. Clower was administered an approved secondary chemical test, the Intoximeter EC/IR II. The results of the test showed Mr. Clower to have a BAC of .182 percent.² Mr. Clower was thereafter charged with driving under the influence in violation of W. Va.Code, 17C-5-2.

Following Mr. Clower's arrest, Trooper Kessel completed a "Statement of Arresting Officer" and attached to that statement a photocopy of the Intoximeter results. These documents were then sent to the Department of Motor Vehicles as mandated by W.Va. Code, 17C-5A-1(b) [2004], upon receipt of which the Commissioner notified Mr. Clower that his license to operate a motor vehicle in the State of West Virginia was suspended for a period of six-months. As permitted by statute, Mr. Clower requested an administrative hearing to contest the suspension.

On December 5, 2006, a final administrative hearing was heard before the Commissioner's Hearing Examiner on Mr. Clower's challenge of the suspension. At that hearing, Mr. Clower argued that under W.Va. Code, 17C-8-8(a), a driver is only required to use a turn signal when "other traffic may be affected by [the turn]." Because Trooper Kessel was "approximately two city blocks" behind Mr. Clower's vehicle at the time of the turn, and that there were no other cars on the roadway at the time, Mr. Clower argued that the trooper did not have a reasonable, articulable suspicion to stop Mr. Clower. Mr. Clower therefore moved that all evidence be excluded on the grounds that Trooper Kessel did not have reasonable suspicion to stop his vehicle for failing to use a turn signal.

The Hearing Examiner rejected Mr. Clower's arguments, concluding that

West Virginia Code § 17C-8-8(a) does not create an exception to West Virginia Code, § 17C-8-9, upon which the Arresting Officer based his statutory authority to make the traffic stop, whereby [Mr. Clower] would be excused from using a turn signal simply because traffic was unaffected by [Mr. Clower's] failure to do so.

After rejecting Mr. Clower's arguments, the Hearing Examiner concluded that Trooper Kessel "had reasonable grounds to stop" Mr. Clower, that Mr. Clower "was lawfully arrested for an offense" and that "sufficient evidence was presented to show that [Mr. Clower] drove a motor vehicle ... while under the influence of alcohol...."

Based on the Hearing Examiner's findings, the Commissioner entered an order suspending Mr. Clower's license to operate a motor vehicle for six (6) months. Mr. Clower thereafter filed an appeal to the Circuit Court of Hampshire County.

By order filed on November 15, 2007, the circuit court reversed the Commissioner's administrative order, finding inter alia that under the circumstances of the case, Mr. Clower was not required by W. Va.Code, 17C-8-8(a) or 17C-8-9 to have used a turn signal because "no traffic whatsoever could be affected by [Mr. Clower's] failure to signal" and that Trooper Kessel did not have the requisite reasonable suspicion to stop Mr. Clower's vehicle.

The Commissioner now appeals to this Court seeking reinstatement of the order suspending Mr. Clower's license.

II. Standard of Review

In this appeal we are asked to determine whether the circuit court erred in reversing the Commissioner's finding that W.Va.Code, § 17C-8-9 requires a driver of a vehicle to use a turn signal in all instances before making a left or right turn at an intersection. We are also asked whether the circuit court erred in reversing the Commissioner's order suspending Mr. Clower's driver's license on the grounds that Trooper Kessel did not have an articulable reasonable suspicion to stop Mr. Clower's vehicle.

These issues present questions of law that are subject to de novo review.

Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.

Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

We have further held that "[i]n 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." Syllabus Point 2, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996). Further, that "[e]videntiary findings made at an administrative hearing should not be reversed unless they are clearly wrong." Syllabus Point 1, Francis O. Day Co., Inc. v. Director, Division of Environmental Protection, 191 W.Va. 134, 443 S.E.2d 602 (1994).

With these standards in mind, we turn to the issues in ...