Dale v. Ciccone

• Decision Date: 05 June 2014
• Docket Number: No. 13–0821.,13–0821.
• Citation: 233 W.Va. 652,760 S.E.2d 466
• Court: West Virginia Supreme Court
• Parties: Steven O. DALE, Acting Commissioner of the West Virginia Division of Motor Vehicles, Petitioner v. Anthony CICCONE, Respondent.

233 W.Va. 652

760 S.E.2d 466

Steven O. DALE, Acting Commissioner of the West Virginia Division of Motor Vehicles, Petitioner

v.Anthony CICCONE, Respondent.

No. 13–0821.

Supreme Court of Appeals of West Virginia.

Submitted May 7, 2014.

Decided June 5, 2014.

Syllabus by the Court

1. “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.” Syl. Pt. 1, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996).

2. “Upon 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 jurisdictionof 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).

3. “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[.]” Syl. Pt. 1, in part, State v. Stuart, 192 W.Va. 428, 452 S.E.2d 886 (1994).

4. “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.” Syl. Pt. 2, State v. Stuart, 192 W.Va. 428, 452 S.E.2d 886 (1994).

5. “A police officer may rely upon an anonymous call if subsequent police work or other facts support its reliability and, thereby, it is sufficiently corroborated to justify the investigatory stop under the reasonable-suspicion standard.” Syl. Pt. 4, State v. Stuart, 192 W.Va. 428, 452 S.E.2d 886 (1994).

6. “For a police officer to make an investigatory stop of a vehicle the officer must have an articulable reasonable suspicion that a crime has been committed, is being committed, or is about to be committed. In making such an evaluation, a police officer may rely upon an anonymous call if subsequent police work or other facts support its reliability, and, thereby, it is sufficiently corroborated to justify the investigatory stop under the reasonable-suspicion standard.” Syl. Pt. 5, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996).

7. “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.” Syl. Pt. 3, Carte v. Cline, 200 W.Va. 162, 488 S.E.2d 437 (1997).

8. “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.” Syl. Pt. 2, Albrecht v. State, 173 W.Va. 268, 314 S.E.2d 859 (1984).

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

Anthony Ciccone, Pro Se Respondent.

PER CURIAM:

This is an appeal by Steven O. Dale, Acting Commissioner of the West Virginia Division of Motor Vehicles (hereinafter “DMV”), from an order of the Circuit Court of Kanawha County, West Virginia, reversing the administrative license revocation of Anthony Ciccone (hereinafter “the respondent”). The Office of Administrative Hearings (hereinafter “OAH”) and the circuit court found that the DMV failed to prove that a lawful investigatory traffic stop was accomplished and consequently failed to prove that the respondent was lawfully arrested pursuant to West Virginia Code § 17C–5A–2(f) (2013). Upon thorough review of the statutory framework, briefs, arguments of counsel, record, and applicable precedent, this Court reverses the order of the Circuit Court of Kanawha County and remands for entry of an order reinstating the respondent's administrative license revocation.

I. Factual and Procedural History

On November 4, 2010, the respondent was arrested in Grafton, West Virginia, for driving under the influence of alcohol (hereinafter “DUI”). At an administrative hearing held on March 24, 2011, Sergeant James Davis of the Grafton Police Department testifiedthat he received a telephone call at the police department on the evening of November 4, 2010, from Ms. Sharon Marks. Sergeant Davis testified that Ms. Marks described a vehicle she had observed driving erratically and proceeding south on Route 119.¹ She stated that the vehicle had Delaware registration, and she specifically informed Sergeant Davis that the driver might be intoxicated.

According to Sergeant Davis' testimony, he thereafter drove to the intersection of Route 119 and Route 50 and observed the described vehicle make a proper left turn from Route 50 East onto Route 119 North. Sergeant Davis did not observe any suspicious or erratic driving, but he stopped the vehicle based solely on the telephone call and information obtained from Ms. Marks. Although Sergeant Davis testified that he was not certain of the time of the stop, he estimated that it was approximately 11:33 p.m.

When Sergeant Davis stopped the vehicle, the respondent was not driving. He was seated in the passenger seat. The DUI Information Sheet indicates that by approximately 11:40 p.m., Officer T.R. Rutherford, also with the Grafton Police Department, arrived at the scene. Both officers detected an odor of alcohol on the respondent's breath. They also observed that the respondent had slurred speech and bloodshot eyes. The respondent admitted he had been driving the vehicle until he picked up his friend. The driver informed the officers that he had just recently gotten into the vehicle at the “Dairy King area on Rt. 50” and that the respondent had previously driven from Morgantown, West Virginia, to Grafton on Route 119.² According to Sergeant Davis' testimony, the respondent explained that he had started driving south from Morgantown at approximately 11:00 p.m. He also admitted that he had consumed four bottles of beer. Sergeant Davis further testified that the respondent admitted to driving the vehicle at the time of the complaint. ³ The respondent failed the sobriety tests and was arrested for DUI at 11:59 p.m. The respondent was determined to have a blood alcohol level of .104. ⁴

The DMV issued an order administratively revoking the respondent's license on December 9, 2010. On October 25, 2012, the OAH reversed the respondent's license revocation, finding that the record was not sufficient to prove that the officers had an articulable reasonable suspicion to initiate the traffic stop. The hearing examiner cited State v. Stuart, 192 W.Va. 428, 452 S.E.2d 886 (1994), for the proposition that a police officer may rely on information provided by an informant if subsequent police work or other facts support the reliability of that information. The hearing examiner ultimately found no articulable reasonable suspicion to initiate a traffic stop because only the informant's information was used. No other observations of erratic driving or suspicious activity were made by the investigating officers. Thus, the hearing examiner found the initial traffic stop to be invalid and the resulting license revocation to be improper.

On April 11, 2013, the circuit court held a hearing on the DMV's appeal. By order dated July 25, 2013, the circuit court affirmed the hearing examiner's decision, finding that no valid initial stop occurred because the police officers relied exclusively upon Ms. Marks' tip with no corroborating police investigation or other facts supporting the reliability of the information provided by Ms. Marks. This appeal followed.

II. Standard of Review

In syllabus point one of Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996), this Court explained the standard of review of a circuit court's order:

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.

In syllabus point two of Shepherdstown Volunteer Fire Department v. State ex rel. State of West Virginia Human Rights Commission, 172 W.Va. 627, 309 S.E.2d 342 (1983), this Court also stated:

Upon 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...