Frazier v. Bragg

• Decision Date: 16 November 2020
• Docket Number: No. 19-0519,19-0519
• Citation: 851 S.E.2d 486
• Parties: Everett FRAZIER, Commissioner of the West Virginia Division of Motor Vehicles, Petitioner v. Gary L. BRAGG, Respondent
• Court: West Virginia Supreme Court

851 S.E.2d 486

Everett FRAZIER, Commissioner of the West Virginia Division of Motor Vehicles, Petitioner

v.Gary L. BRAGG, Respondent

No. 19-0519

Supreme Court of Appeals of West Virginia.

Submitted: October 13, 2020

Filed: November 16, 2020

Patrick Morrissey, Esq., West Virginia Attorney General, Janet E. James, Esq., Assistant Attorney General, Counsel for Petitioner.

J. Patrick L. Stephens, Esq., Underwood Law Office, Huntington, West Virginia, Counsel for Respondent.

HUTCHISON, Justice:

Petitioner Everett Frazier, Commissioner of the West Virginia Division of Motor Vehicles ("the Commissioner" or "DMV"), seeks the reinstatement of an order revoking the driving privileges of Respondent Gary L. Bragg for driving a motor vehicle while under the influence of alcohol, controlled substances and/or drugs ("DUI"). By order entered on May 3, 2019, the Circuit Court of Kanawha County, West Virginia, affirmed the decision of the Office of Administrative Hearings ("OAH") reversing the revocation order on the grounds that the blood sample that Mr. Bragg agreed to give at the request of law enforcement officers was never tested and cannot be located, which deprived Mr. Bragg of the ability to present potentially exculpatory evidence.

Upon careful consideration of the parties’ briefs and oral arguments, the appendix record, and the pertinent legal authority, and for the reasons set forth below, we reverse the circuit court's order and remand this matter for further proceedings.

I. Factual and Procedural Background

On January 16, 2015, while performing routine road patrol in Williamson, Mingo County, West Virginia, Senior Trooper M.J. Miller and Senior Trooper D.M. Williamson of the West Virginia State Police observed a 2006 Chevrolet Impala traveling on First Avenue. The officers observed that the vehicle was weaving, that the driver's sideview mirror was defective in that it did not have glass, and that the driver was not wearing his seatbelt. The officers watched the vehicle turn onto Second Avenue without first signaling a right turn. The officers conducted a traffic stop of the vehicle.

Upon approaching the vehicle, Trooper Miller observed an open container of alcohol in the passenger-side floorboard. Trooper Miller made contact with the driver, identified as Mr. Bragg, and, according to the D.U.I. Information Sheet, observed that he had watery eyes, slurred speech, and the odor of an alcoholic beverage on his breath. At Trooper Miller's request, Mr. Bragg exited his vehicle. Trooper Miller observed Mr. Bragg to be unsteady while exiting, walking to the roadside, and standing. According to Trooper Miller, Mr. Bragg admitted that he had been drinking and had taken Suboxone

prior to driving.

Trooper Miller explained and administered the horizontal gaze nystagmus

("HGN") test to Mr. Bragg. Prior to administering that test, Trooper Miller conducted a medical assessment of Mr. Bragg's eyes, which indicated equal pupils, equal tracking, and no resting nystagmus. Mr. Bragg had vertical nystagmus, which was indicative of a high level of impairment. During the administration of the HGN test, Mr. Bragg's eyes displayed a lack of smooth pursuit, distinct and sustained nystagmus at maximum deviation, and onset of nystagmus prior to forty-five degrees in both eyes. Mr. Bragg refused to take the walk-and-turn and one-leg-stand tests "due to a medical condition with his feet." The D.U.I. Information Sheet also reflected that Mr. Bragg "refused" the preliminary breath test.

Trooper Hall placed Mr. Bragg under arrest for DUI. Thereafter, the officers asked Mr. Bragg if he would agree to submit to a blood draw. Mr. Bragg agreed, and Trooper Williamson transported him to Williamson Memorial Hospital where a blood sample was taken by hospital personnel. Trooper Williamson then took control of the blood sample, which according to the West Virginia State Police Complaint Report, "was entered into temporary evidence." The D.U.I. Information Sheet indicated that analysis of the blood sample would be conducted by the West Virginia State Police Laboratory.

Mr. Bragg was issued an order of revocation for DUI on March 17, 2015, revoking his driving privileges for a period of one year. He timely requested an administrative hearing before the Office of Administrative Hearings (OAH) by completing the Written Objection and Hearing Request Form. Mr. Bragg marked the box on the form, "I wish to challenge the results of the secondary chemical test of the blood, breath or urine."

An administrative hearing was conducted before the OAH on February 3, 2017, at which Mr. Bragg appeared, self represented. Mr. Bragg denied that he had been drinking or that he admitted to Trooper Miller that he had been drinking. He testified that there was a passenger in the vehicle with him who was drinking from an open container of beer at the time of the stop. Mr. Bragg admitted telling the officers that he had taken four milligrams of Suboxone

, his prescribed dosage, approximately two hours before the stop. He denied that he was not wearing his seatbelt and that he failed to use his turn signal. Mr. Bragg could not recall whether his side mirror was defective. With regard to his performance on the HGN test, Mr. Bragg testified that the officer "put a pen in front of my eyes. I explained to him, ‘Sir, I'm blind in this left eye.’ " According to Mr. Bragg, that is why his left eye appeared "watery." Further, although the D.U.I. Information Sheet noted that Mr. Bragg "refused" the preliminary breath test, Mr. Bragg testified that he agreed to the test, that Trooper Miller twice attempted to administer the test using two separate devices, but that neither device worked. It was then that the officers asked Mr. Bragg if he would submit to a blood draw, to which Mr. Bragg agreed.

The D.U.I. Information Sheet was admitted into evidence and Trooper Miller testified largely consistent with the information contained therein. Though not noted on the D.U.I. Information Sheet, Trooper Miller recalled, consistent with Mr. Bragg's testimony, that there was a passenger in Mr. Bragg's vehicle at the time of the stop. Counsel for the Commissioner did not ask Trooper Miller to confirm or refute Mr. Bragg's testimony that he agreed to the preliminary breath test and that the devices were defective, or to explain, in light of this testimony, why he noted on the D.U.I. Information Sheet that Mr. Bragg "refused" this test. With regard to the HGN test, the Commissioner similarly did not attempt to refute Mr. Bragg's testimony that he was blind in his left eye and did not ask Trooper Miller to account for this fact in the HGN test results noted on the D.U.I. Information Sheet, which made no reference to Mr. Bragg being blind in one eye.

Finally, the evidence showed that the blood sample that was taken from Mr. Bragg following his arrest was never tested. According to Trooper Miller, Trooper Williamson, who transported Mr. Bragg to the hospital for the blood draw, obtained custody and control of the blood sample but the West Virginia State Police Laboratory had no record of it ever being received. By the time the administrative hearing was conducted, Trooper Williamson was no longer employed with the State Police and did not testify at the hearing. Trooper Miller did not know whether the blood sample was ever sent to the State Police Lab or, if it was sent, whether it was properly logged in. Counsel for the Commissioner represented to the OAH that the blood sample was no longer in the custody of the State Police. The whereabouts of the blood sample was unknown.

On November 26, 2018, the OAH entered a Corrected Final Order in which it determined that there was evidence of the use of alcohol, drugs, controlled substances, or any combination, and that the officers lawfully arrested Mr. Bragg for DUI. However, focusing exclusively on the fact that Mr. Bragg's blood sample was taken but never tested, the OAH reversed the order of revocation. Relying on West Virginia Code § 17C-5-9 (2013), which provides that a driver arrested for DUI has the right to demand a blood or breath test,¹ the OAH found that, based upon our cases construing this statute,

individuals who voluntarily submit to a blood sample at the request of the Investigating Officer should be afforded the [s]ame due process protections as those who demand a blood test. The Investigating Officer's failure to test blood or to make blood evidence available to [Mr. Bragg] for further testing denied Mr. Bragg[ ] [his] statutory due process rights under W. Va. Code § 17C-5-9 and is grounds for reversal of the [Commissioner's] Order of Revocation[.]²

(Footnote added). The OAH thus concluded that Mr. Bragg "did not commit an offense described in West Virginia Code § 17C-5-2, in that the [Commissioner] did not prove by a preponderance of the evidence that [Mr. Bragg] drove a motor vehicle in this State while under the influence of alcohol, controlled substances and/or drugs on [January 16,] 2015." The order of the OAH was approved by Final Order of Chief Hearing Examiner entered on December 4, 2018.

The Commissioner appealed the decision of the OAH to the Circuit Court of Kanawha County. Also relying on West Virginia Code § 17C-5-9, the circuit court found that a driver's statutory and due process rights under this statute are not contingent upon who requests the blood test and that Mr. Bragg's

failure to request a blood test is completely rational in light of being told by at least one – and possibly two – West Virginia State Troopers that a blood draw would be performed and his blood sample tested for alcohol. This test never occurred, nor was the sample preserved to be made available to [Mr. Bragg] for independent testing.

The circuit court affirmed the OAH's decision to reverse the revocation of Mr. Bragg's driving privileges. It is from the circuit court's May 3, 2019, order that the Commissioner now appeals.

II. Standard of Review

This Court reviews a circuit...