Dale v. Oakland, 13-0761

• Decision Date: 05 June 2014
• Docket Number: No. 13-0761,13-0761
• Court: West Virginia Supreme Court
• Parties: STEVEN O. DALE, ACTING COMMISSIONER OF WEST VIRGINIA DIVISION OF MOTOR VEHICLES, Respondent, Petitioner v. DONALD OAKLAND, Petitioner, Respondent

STEVEN O. DALE, ACTING COMMISSIONEROF WEST VIRGINIA DIVISION OF MOTOR VEHICLES, Respondent, Petitioner v. DONALD OAKLAND, Petitioner, Respondent

No. 13-0761

SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2014 Term

FILED: June 6, 2014

Submitted: March 26, 2014

Filed: June 5, 2014

Appeal from the Circuit Court of Marshall County

The Honorable David W. Hummel, Jr., Judge

Civil Action No. 13-CAP-3

REVERSED AND REMANDED

Patrick Morrisey, Esq.

Attorney General

Elaine L. Skorich, Esq.

Assistant Attorney General

DMV - Attorney General's Office

Charleston, West Virginia

Counsel for the Petitioner

J. Thomas Madden III, Esq.

Madden Law Offices

Glen Dale, West Virginia

Counsel for the Respondent

Robert G. McCoid, Esq.

McCamic, Sacco & McCoid, PLLC

Wheeling, West Virginia

Counsel for the Respondent

The Opinion of the Court was delivered PER CURIAM.

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

2. "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).

3. "Where objections were not shown to have been made in the trial court, and the matters concerned were not jurisdictional in character, such objections will not be considered on appeal." Syllabus Point 1, State Road Comm'n v. Ferguson, 148 W. Va. 742, 137 S.E.2d 206 (1964).

4. "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 whetherhe 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).

5. "The 'clearly wrong' and the 'arbitrary and capricious' standards of review are deferential ones which presume an agency's actions are valid as long as the decision is supported by substantial evidence or by a rational basis." Syllabus Point 3, In re Queen, 196 W. Va. 442, 473 S.E.2d 483 (1996).

6. "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." Syllabus Point 1, Albrecht v. State, 173 W. Va. 268, 314 S.E.2d 859 (1984).Per Curiam:

The instant case is before the Court upon the appeal of Petitioner Steven O. Dale, Acting Commissioner of the Division of Motor Vehicles ("Commissioner"), from a June 15, 2013, order of the Circuit Court of Marshall County, reversing a final order of the Office of Administrative Hearings ("OAH") that upheld the Commissioner's order revoking Respondent Donald Oakland's privilege to drive a motor vehicle. The Commissioner alleges that the circuit court erred in ignoring all of the evidence presented that Mr. Oakland drove while under the influence of controlled substances and that Mr. Oakland neither objected to nor rebutted the evidence presented by the Commissioner during the proceedings below. Conversely, Mr. Oakland alleges that the circuit court properly concluded that the hearing examiner was clearly wrong in finding that he was under the influence of marijuana at the time the police officer stopped his vehicle. Mr. Oakland also alleges that the Commissioner was without jurisdiction to enter an order suspending his operator's privileges in the absence of any accompanying arrest, because a lawful arrest is a prerequisite to the issuance of any order of suspension. Upon examination of the petition, the response, the submitted appendices, and the arguments of counsel, we conclude that, for reasons set forth more fully below, the circuit court's order should be reversed and remanded for reinstatement of the Commissioner's order revoking Mr. Oakland's license to operate a motor vehicle.

I.FACTUAL AND PROCEDURAL BACKGROUND

On October 12, 2010, Officer Sean Wilhelm of the Moundsville Police Department, the investigating officer in this matter, observed a blue 2001 Ford Mustang which failed to stop at a stop sign located at Grant Avenue and 3rd Street in Moundsville, Marshall County, West Virginia. Officer Wilhelm initiated a traffic stop of the motor vehicle and identified the Respondent Donald Oakland as the driver of the motor vehicle. Officer Wilhelm detected a strong odor of marijuana emanating from within Mr. Oakland's vehicle as soon as he got behind the vehicle even before he activated the emergency lights.

Officer Wilhelm immediately placed Mr. Oakland in handcuffs, patted him down, and put him in the back of the police cruiser. Officer Wilhelm observed that Mr. Oakland's eyes appeared glassy. Subsequently, Officer Steve Oliver of the Moundsville Police Department arrived at the scene of the traffic stop to provide assistance. Officer Wilhelm noted that Mr. Oakland appeared steady as he exited the vehicle and as he walked to the roadside.

Mr. Oakland admitted to Officer Wilhelm that he had "a joint" and that he smoked marijuana in the car while driving around Moundsville. Officer Wilhelm administered a series of field sobriety tests to Mr. Oakland, including the horizontal gaze nystagmus ("HGN") test, the walk-and-turn test, and the one-leg stand test. Mr. Oakland passed the HGN test. However, he failed the walk-and turn test because during theinstruction phase of the test, he stepped off the line of walk, missed walking in a heel-to-toe manner as instructed, raised his arms for balance, and completed an improper turn. Additionally, Mr. Oakland failed the one-leg stand test because he used his arms for balance and was unable to keep his foot raised off of the ground. After searching Mr. Oakland's car, the officers located a rolled "joint" containing a green leafy substance that they deemed to be marijuana, a partially burnt "joint" and an Altoids tin with a green leafy substance inside. Officer Wilhelm handcuffed Mr. Oakland and transported him to the hospital for the administration of a blood test. Officer Wilhelm waited for the results of the blood test before placing Mr. Oakland under arrest for a criminal offense.

On November 9, 2010, the DMV revoked Mr. Oakland's license. On December 2, 2010, Mr. Oakland requested an administrative hearing before the Office of Administrative Hearings ("OAH"). On January 7, 2011, Mr. Oakland appeared at the administrative hearing and was represented by counsel; however, Mr. Oakland did not testify at the hearing. At the time of the hearing, Officer Wilhelm had not received the results of the blood test but the hearing examiner found that they were not necessary pursuant to Syl. Pt. 4, Coll v. Cline, 202 W.Va. 599, 505 S.E.2d 662 (1998). The OAH upheld the driver's license revocation due to DUI of controlled substances. Mr. Oakland appealed to the Circuit Court of Marshall County which entered a June 15, 2013 order, reversing the decision of the OAH finding that "the material findings of fact upon which the adverse legal conclusions are based are without any basic foundational support." The circuit court found the hearing examiner's findings "so fatally flawed that the [c]ourt is ata loss to adequately describe same other than to say that such were arbitrary, capricious, an abuse of discretion, and a clearly unwarranted exercise of discretion." The circuit court noted that the record did not establish either officer's training or ability to identify marijuana by sight or scent, and failed to show that either officer was capable of giving a field sobriety test. This appeal followed.

II.STANDARD OF REVIEW

With regard to the standard of review, this Court has held that

[o]n 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). Furthermore,

[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.

Syl. Pt. 2, Muscatell v. Cline, 196 W. Va. 588, 474 S.E.2d 518 (1996). Guided by these standards, we proceed to consider the parties' arguments.

III.ANALYSIS

The Commissioner alleges that the circuit court erred in ignoring all of the evidence presented that Mr. Oakland drove while under the influence of controlled substances. Furthermore, the Commissioner asserts that Mr. Oakland neither objected to nor rebutted the evidence presented by the Commissioner during the proceedings below. The Commissioner contends that because sufficient evidence of DUI was presented below, the circuit court's order reversing the OAH was an abuse of discretion. Conversely, Mr. Oakland alleges that the circuit court properly concluded that the hearing...