Frazier v. Kelly

• Decision Date: 12 January 2022
• Docket Number: 20-0412
• Court: Virginia Supreme Court
• Parties: Everett Frazier, Commissioner, West Virginia Division of Motor Vehicles, Respondent Below, Petitioner v. Michael A. Kelly, Petitioner Below, Respondent

Everett Frazier, Commissioner, West Virginia Division of Motor Vehicles, Respondent Below, Petitioner v. Michael A. Kelly, Petitioner Below, Respondent

No. 20-0412

Supreme Court of Appeals of West Virginia

January 12, 2022

Raleigh County 19-AA-1

MEMORANDUM DECISION

Petitioner Everett Frazier, Commissioner, West Virginia Division of Motor Vehicles (the "Commissioner"), by counsel Patrick Morrisey and Elaine L. Skorich, appeals the Circuit Court of Raleigh County's May 20, 2020, order reversing the February 22, 2019, decision of the Office of Administrative Hearings ("OAH"), which concluded that respondent committed the offense of driving a motor vehicle under the influence of alcohol and affirmed the Commissioner's orders of revocation entered on August 28 2013. Respondent Michael A. Kelly, by counsel David Pence filed a response. The Commissioner filed a reply.

This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. This case satisfies the "limited circumstances" requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate for a memorandum decision rather than an opinion. For the reasons expressed below, the decision of the circuit court is reversed, and this case is remanded to the circuit court for entry of an order consistent with this decision.

On the snowy evening of December 29, 2012, respondent watched a football game and drank beer with a colleague at a restaurant. After the game, respondent drove to the colleague's home so the two could continue their visit before respondent drove home. On his way home, West Virginia State Trooper C.L. Mollohan initiated a stop of respondent's vehicle and, ultimately, arrested respondent for driving under the influence of alcohol ("DUI").^[1] The Division of Motor Vehicles ("DMV") issued Orders of Revocation on August 28 2013, revoking respondent's driver's license for one year for his DUI and his failure to submit to the secondary chemical test. Respondent submitted a request for a hearing on the revocation.

The parties appeared before the Office of Administrative Hearings ("OAH") on April 13, 2018, and November 30, 2018. Trooper Mollohan and respondent testified. In addition, Dr. Lance Platt, a former police officer who currently consults in drug and alcohol cases and is a National Highway Traffic Safety Administration ("NHTSA")-certified trainer, offered expert testimony on respondent's behalf.

Trooper Mollohan testified that he initiated the stop of respondent's vehicle, an SUV, due to his "[e]rratic driving, weaving." The D.U.I. Information Sheet and Criminal Complaint completed by the officer and admitted at the hearing likewise indicate, respectively, that respondent was "weaving" and "swerving erratically." In addition, dash camera footage from the vehicle in which Trooper Mollohan was riding was admitted, which the officer testified showed, "[R]ight here, there's a big deviation in him moving back and forth. You can tell where the lines in the road are, as far as where vehicles had been traveling because it's snow-covered and he's drifting left and right."

Trooper Mollohan elaborated on the driving conditions at the time of the traffic stop and respondent's driving that precipitated the traffic stop, testifying that

[w]hen following behind a vehicle, if it's moving side to side, if you're a cognizant individual who's not intoxicated, then it's easy to see whether there are lines on the road or not. But yes, it was snow-covered and yes, you could tell that he was weaving while he was in front of us. . . . So yes, I did say that you could see the lines on the road where the previous traffic had traveled and that he moved in those lines. . . . But you can tell when a vehicle is weaving in front of you. You don't have to have a line to base it off of.

Trooper Mollohan said that he "couldn't tell you" whether respondent was weaving in his lane, but he said that, in any event, he has been trained that weaving within one's own lane is an appropriate basis to stop a vehicle because

[w]eaving in your lane of traffic would mean that I need to pull you over and see if you have anything going on. It could be a number of things. It could be elderly. It could be sensitivity to light. It could be in the night. It could be low blood sugar. It could be a number of things. It's not strictly pulling someone over with the intent of finding a DUI.

After stopping respondent's vehicle, Trooper Mollohan asked respondent for his driver's license, registration card, and proof of insurance. The officer documented that respondent "attempted to comply but had a difficult time locating his information." Also, the officer testified that, as respondent was searching for this information, respondent "reaches me a firearm without saying anything about it. It is in a pocket holder, that he reaches me a firearm, just grabs it out of the door and hands it to me for whatever reason." Trooper Mollohan noted on the D.U.I. Information Sheet that respondent had the odor of alcohol on his breath, was unsteady exiting the vehicle, staggered while walking to the roadside, and was unsteady standing. Trooper Mollohan also found respondent's speech to be slurred and his eyes bloodshot and glassy. After respondent stepped outside of his vehicle, Trooper Mollohan described that he

moved him from the side of the roadway. I instructed him several times, had to move him. He's still unable to find any of his information. That's why we're trying to find his wallet, something, his identification, insurance, registration, all those types of things. And naturally, officer safety after he hands me a pistol without saying I have a weapon in the vehicle.

Respondent acknowledged that he had "difficulty" driving on the evening of his arrest. He described the road as "snow-packed in parts. . . . [I]n some sections of Section 19, the lanes were obscured, the lines were obscured. And in some places, people were driving literally down the center of the road." He also confirmed that he had some difficulty locating his proof of insurance and registration, but he denied handing his gun to the officer unprompted or muzzle first. Respondent also said that he was "[a]bsolutely not" impaired on the night in question. He claimed he had approximately three light beers while watching the football game at the restaurant and nothing more when he spent time at his colleague's home following the game.

Dr. Platt, who had seen the dash camera footage, observed that it "seemed to be snowing and ic[y]." Dr. Platt noted that the police report indicated that respondent was "swerving erratically," and based on Dr. Platt's viewing of the dash camera footage, he acknowledged that respondent "very well may have gone outside the lanes," and he "did see movement in the lane." Dr. Platt also acknowledged that "weaving is one of the clues that law enforcement officers are taught to observe for a clue of impaired driving." The expert denied that respondent had difficulty getting out of his vehicle, though, because "being unsteady coming out of a car, in my opinion, that's normal." Dr. Platt saw no out-of-the-ordinary movement, such as staggering, on respondent's part. Rather, Dr. Platt "saw a person walking on snow and ice that didn't fall over"; however, Dr. Platt did recall seeing Trooper Mollohan assist respondent by his arm after he exited his vehicle. Dr. Platt discounted Trooper Mollohan's detection of the odor of alcohol on respondent's person, testifying that "the odor of alcohol does not correlate with impairment." Likewise, Dr. Platt discounted the usefulness of bloodshot eyes in detecting impairment, noting that "too many variables . . . could cause a person's eyes to be red and bloodshot."

Regarding the administration of the field sobriety tests, most of which was captured by the dash camera, Trooper Mollohan documented that respondent had equal pupils, no resting nystagmus, and no equal tracking on the D.U.I. Information Sheet in the section related to the horizontal gaze nystagmus ("HGN") test. Trooper Mollohan explained that he marked "no equal tracking" because respondent "didn't track so I couldn't say anything." Instead of tracking the officer's pen with his eyes, respondent "[l]ooked [s]traight ahead." Trooper Mollohan tried to administer the test several times before he ultimately ended it because,

[i]f I ask you to perform a test and I explain it to you, and then I attempt to perform it and you just stare at my face you don't even attempt to follow the pen no matter how many times I move it in front of your face, then I re-address you and say without moving your head, using only your eyes, follow the tip of my pen with your eyes and your eyes only. Do you understand this? And then attempt it again you still just stare at me. That is telling me that you're not willing to follow those instructions.

Respondent, however, testified that he complained to the officer because the officer was holding his flashlight above respondent's eyes, and the test was difficult to perform because of the wind and snow. Respondent also claimed that he recalled telling Trooper Mollohan that he was having trouble hearing him during a subsequent attempt at administering the HGN test, which "seemed to anger" the officer.

Dr Platt was critical of Trooper Mollohan's administration of the HGN test. Dr. Platt claimed that once the officer noted that respondent exhibited "no equal tracking," he should have ended the test. "[I]f a person doesn't exhibit equal tracking of the eyes, there may be a neurological problem that could disqualify them from any type of balance test." Moreover, Dr. Platt...