Dale v. McCormick

• Decision Date: 26 September 2013
• Docket Number: No. 12–0153.,12–0153.
• Citation: 231 W.Va. 628,749 S.E.2d 227
• Court: West Virginia Supreme Court
• Parties: Steven O. DALE, Acting Commissioner of the West Virginia Division of Motor Vehicles, Petitioner v. Donna L. McCORMICK, Respondent.

231 W.Va. 628

749 S.E.2d 227

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

v.Donna L. McCORMICK, Respondent.

No. 12–0153.

Supreme Court of Appeals of

West Virginia.

Submitted Sept. 10, 2013.

Decided Sept. 26, 2013.

SYLLABUS BY THE COURT

1. “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 Prot., 191 W.Va. 134, 443 S.E.2d 602 (1994).

2. “The horizontal gaze nystagmus test is a field sobriety test, and a driver's performance on the test is admissible as evidence that the driver may have consumed alcohol and may, therefore, be impaired. The results of the horizontal gaze nystagmus test are entitled to no greater weight than other field sobriety tests such as the walk-and-turn test and the one-leg stand test.” Syllabus point 1, White v. Miller, 228 W.Va. 797, 724 S.E.2d 768 (2012).

3. “Upon a challenge by the driver of a motor vehicle to the admission in evidence of the results of the horizontal gaze nystagmus test, the police officer who administered the test, if asked, should be prepared to give testimony concerning whether he or she was properly trained in conducting the test, and assessing the results, in accordance with the protocol sanctioned by the National Highway Traffic Safety Administration and whether, and in what manner, he or she complied with that training in administering the test to the driver.” Syllabus point 2, White v. Miller, 228 W.Va. 797, 724 S.E.2d 768 (2012).

4. “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).

Janet E. James, Senior Assistant Attorney General, Charleston, WV, for Petitioner.

David O. Moye, Hurricane, WV, for Respondent.

PER CURIAM:

This appeal was brought by Steven O. Dale, Acting Commissioner of the West Virginia Division of Motor Vehicles (“DMV”),¹ from an order of the Circuit Court of Lincoln County that reinstated the revoked driver's license of Donna L. McCormick. Before this Court, DMV contends that the circuit court erred in disregarding evidence of field sobriety and intoximeter tests and in determining that DMV's revocation order was biased, prejudicial and reached in a preconceived manner. After a careful review of the briefs, record submitted on appeal and listening to the arguments of the parties,² we reverse and remand for reinstatement of DMV's revocation order.

I.FACTUAL AND PROCEDURAL HISTORY

In the early morning hours of January 6, 2007, Trooper D.J. Miller was traveling ³ on Route 3 in Griffithsville, West Virginia, when he observed a car traveling toward him swerving and crossing the centerline. The car, which was being driven by Ms. McCormick, made a U-turn and drove onto Sugar Tree Road. Ms. McCormick stopped the car in a parking area, but half of the car remained in the roadway. After Trooper Miller approached Ms. McCormick, he detected an odor of alcohol coming from the vehicle. He further observed her eyes were glassy, her speech was slurred, and she was unsteady and staggering while walking on the roadside. Ms. McCormick admitted to Trooper Miller that she previously had drank two mixed alcoholic beverages, that she was drinking while driving, and that she had poured out alcohol from her window before she stopped.⁴

Trooper Miller administered three field sobriety tests to Ms. McCormick. She failed all three tests.⁵ Ms. McCormick was placed under arrest for DUI and taken to the town hall in Hamlin, West Virginia. While at the town hall, Trooper Miller performed an Intoximeter chemical test of Ms. McCormick's breath. The results of the chemical test indicated that Ms. McCormick had a blood-alcohol content level of .105 at the time the test was administered.⁶

As a result of Ms. McCormick's arrest for DUI, her driver's license was revoked for six months. Ms. McCormick challenged the revocation and a hearing was held in April 2007. Subsequent to the hearing, DMV issued an amended final order in 2009 revoking Ms. McCormick's driver's license for six months. ⁷ Ms. McCormick appealed the revocation to the circuit court. In 2012, the circuit court issued an order reversing DMV's amended final order. This appeal was thereafter prosecuted by DMV.

II.STANDARD OF REVIEW

The circuit court order appealed in this case is a reversal of the DMV's revocation of Ms. McCormick's driver's license. Our review of an appeal from a circuit court's decision involving an administrative agency order is governed by the standard set forth in syllabus point one of Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996):

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.

Moreover, as this Court explained in Modi v. West Virginia Board of Medicine, 195 W.Va. 230, 239, 465 S.E.2d 230, 239 (1995),

findings of fact made by an administrative agency will not be disturbed on appeal unless such findings are contrary to the evidence or based on a mistake of law. In other words, the findings must be clearly wrong to warrant judicial interference. Accordingly, absent a mistake of law, findings of fact by an administrative agency supported by substantial evidence should not be disturbed on appeal.

(Citations omitted). With these standards in mind, we now consider the parties' arguments.

III.DISCUSSION

A. Field Sobriety Tests

On appeal to this Court, DMV asserts that the circuit court disregarded evidence of field sobriety and intoximeter tests. Each issue will be addressed separately.⁸ Trooper Miller administered three field sobriety tests to Ms. McCormick prior to placing her under arrest. Those tests included the walk and turn, the one leg stand, and the horizontal gaze nystagmus test. In its reversal of DMV's revocation order, the circuit court found that the field sobriety tests were not administered according to law. In making this determination, the circuit court set out the following in its order:

9. Petitioner was never given the opportunity [to] take the field sobriety tests as promulgated by the West Virginia State Police Academy and in accordance to the NHTSA standards.

....

19. Pursuant to Bias v. Cline,[ ⁹] the officer must administer the field sobriety tests according to the methods and procedures instructed at the West Virginia State Police Academy and in accordance with the National Highway Traffic Safety Administration, or NHTSA.

20. According to Bias, the Court has “determined that in order to use field sobriety tests to determine whether there is probable cause to arrest a driver, they must be administered in strict compliance with the procedures prescribed by the NHTSA.”

(footnote added).

The above passages from the circuit court's order represent the sum total of all the findings relied on by the court to conclude that Trooper Miller did not perform the field sobriety tests according to law. The circuit court's order does not cite one example of something Trooper Miller was required to do, but failed to do. The order merely restated an unsupported conclusion three times. We find no basis in the trial court's order that supports its rejection of the evidence of the field sobriety tests.

Moreover, in our review of Trooper Miller's testimony, we find that he provided sufficient evidence that he properly administered the field sobriety tests. During the administrative hearing, Trooper Miller testified in relevant part as follows:

Tpr. Miller: She was the driver. I asked her if she had anything to drink. She said she had, had two mixed drinks that evening. I got her out of the vehicle. Performed a set of field sobriety tests on her. I demonstrated them to her as well. When she was getting out of the vehicle, she kind of, kind of waddled, you know, a little bit, I could tell she wasn't real steady exiting. The first one I done was the horizontal gaze nystagmus, which is with the eyes. I told her, I demonstrated what I was going to do and she did show nystagmus in both eyes. Her eyes were glassy. I then done the walk-and-turn test. She failed it as well. She wasn't able to complete it. She was, she almost fell when she was making the turn. She was raising her hands up. She was missing heel-to-toe. She stepped off the line. She completely failed it as well. The last test I done was the one-leg stand. She, she failed it bad too. She [was] swaying and hopping up and down, using her arms. I demonstrated it to her before and she completely failed it....

The hearing examiner determined this evidence was sufficient to find that Trooper Miller properly performed the field sobriety tests. The circuit court summarily rejected this evidence without any showing that the hearing examiner was clearly wrong in crediting the evidence. This Court has made clear that “[e]videntiary findings made at an administrative hearing should not be reversed unless they are clearly wrong.” Syl. pt. 1, Francis O. Day Co., Inc. v. Director, Div. of Envtl. Prot., 191 W.Va. 134, 443 S.E.2d 602 (1994).

Although the circuit court's order failed to set out an adequate basis for rejecting the evidence of Trooper Miller's field sobriety tests, Ms. McCormick made two objections to the testimony during the hearing: (1) failure to lay a foundation and (2) proof of general acceptance of the horizontal gaze nystagmus test. Both objections are raised in this...