Frazier v. Null

• Decision Date: 15 April 2022
• Docket Number: 20-0225
• Citation: 874 S.E.2d 252
• Parties: Everett FRAZIER, Commissioner, West Virginia Division of Motor Vehicles, Petitioner Below, Petitioner v. Douglas H. NULL, Respondent Below, Respondent
• Court: West Virginia Supreme Court

874 S.E.2d 252

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

v.Douglas H. NULL, Respondent Below, Respondent

No. 20-0225

Supreme Court of Appeals of West Virginia.

Submitted: January 7, 2022

Filed: April 15, 2022

Patrick Morrisey, Esq., West Virginia Attorney General, Elaine L. Skorich, Esq., Assistant Attorney General, Charleston, West Virginia, Counsel for Petitioner

David Pence, Esq., Charleston, West Virginia, Counsel for Respondent

Armstead, Justice:

Respondent, Douglas H. Null, was arrested for driving a motor vehicle while under the influence of alcohol, controlled substances, or drugs ("DUI"), and a sample of his blood was drawn for testing. The West Virginia Division of Motor Vehicles ("DMV") revoked Mr. Null's driving privileges, but when Mr. Null appealed the revocation to the Office of Administrative Hearings ("OAH"),¹ DMV advised that the blood sample had been destroyed without testing. In light of this information, OAH reinstated Mr. Null's driving privileges, finding that the destruction of the blood sample, without testing, deprived him of potentially exculpatory evidence and violated his right to due process. On appeal, the Circuit Court of Kanawha County, West Virginia, agreed with OAH, and Petitioner, Everett J. Frazier, Commissioner of the Division of Motor Vehicles, (the "Commissioner") filed this appeal.

Based on the record before us, the arguments of the parties, and the applicable law, we find that OAH's application of the law to its factual findings was incorrect and that OAH incorrectly reversed the revocation of Mr. Null's driving privileges; therefore, we reverse.

I. FACTUAL AND PROCEDURAL BACKGROUND

On May 26, 2014, a West Virginia State Trooper stopped Mr. Null for speeding. According to the DUI Information Sheet, Mr. Null's speech and departure from the vehicle were normal, but his eyes were bloodshot, and he was unsteady walking and standing. A marijuana bowl with residue was found in the car, and Mr. Null admitted to smoking a bowl of marijuana. When the trooper performed field sobriety tests, Mr. Null failed the horizontal nystagmus

test, the walk-and-turn test, and the one-leg-stand test. The trooper took Mr. Null to a hospital for his blood to be drawn. Though a sample was taken, it was not analyzed and was later destroyed.

The DMV sent Mr. Null a revocation order, and he requested a hearing before OAH. After various continuances, OAH held an evidentiary hearing in March 2016. The trooper did not appear for the hearing because he was no longer employed by the State Police and DMV could not subpoena him. Accordingly, and over Mr. Null's objection, DMV proceeded against Mr. Null based on the DUI Information Sheet.²

Mr. Null testified in his own defense. According to him, he had not been smoking marijuana just before the stop, and he was the one who requested a blood test. On cross-examination, he testified that both the possession and the DUI charges had been dismissed. He also admitted that he told the trooper that he had smoked marijuana. He claimed, however, that he said this because he did not think the trooper would believe anything else—which is why he "absolutely wanted a blood test ... to prove that [he] hadn't smoked[ ] or ... wasn't intoxicated at the time." He blamed the failed field sobriety tests on uneven pavement, his weight, lack of balance, and nervousness, though he admitted that his "weight issue" would not have affected his eyes. He also admitted that he signed the DUI Information Statement—which included an admission that he had been under the influence of marijuana—but he claimed that he had not written those remarks, that he did not read them, and that he had only "30 seconds to read" the interview section. According to him, the bowl was not his but, rather, belonged to a prior passenger who had smoked marijuana in his vehicle. Mr. Null testified: "I guess whenever he got out of the car, it come out of his pocket or something." However, there was no testimony or evidence that he requested the results of his blood test or requested an opportunity to perform his own test on the blood sample. Rather, he merely checked a box saying that he wanted to challenge them.

In August 2019, OAH entered a final order reversing the revocation. According to the order, the trooper "had reasonable grounds to believe that ... [Mr. Null]" was DUI because he had bloodshot eyes, he was unsteady while walking and standing, he admitted to smoking a bowl of marijuana, he had a bowl (with residue) in the car, and he failed field sobriety tests. OAH also found that there was "evidence" that Mr. Null had used drugs and that he was "lawfully arrested" for DUI. OAH further found that the trooper "requested ... [Mr. Null] submit to a blood draw" and that Mr. Null "agreed" and "did not initiate the blood draw ...." Nevertheless, OAH reversed the revocation, reasoning, based on our holdings in Reed v. Hall³ and Reed v. Divita ,⁴ that the State violated Mr. Null's due process rights under West Virginia Code § 17C-5-9 (eff. 2013) when it deprived him of the opportunity to present potentially exculpatory evidence as a result of his blood sample.

The Commissioner⁵ appealed to circuit court, and the circuit court affirmed OAH's decision. The circuit court stated that it was "hesitant to disregard the live testimony of an individual placed under oath in favor of a piece of paper[,]" and so the circuit court credited Mr. Null's testimony. However, the circuit court found that it did not matter who requested the blood test because our holding in Divita was not limited "to a mere determination regarding who requested the blood test." The circuit court reasoned that an investigating officer's request for a blood sample removes a driver's "impetus ... to ... request a blood draw" and assures the driver "that a blood draw will occur if [the driver] acquiesce[s]." The circuit court "decline[d] to hold that [a] driver's due process rights are contingent upon a race between the driver and the police officer to first request a blood draw and/or an analysis thereof." Accordingly, the circuit court agreed that Mr. Null's statutory and due process rights under West Virginia Code § 17C-5-9 were violated and found that the State's failure to test the blood sample (or make the sample available to Mr. Null for testing) "foreclosed" consideration of evidence that Mr. Null committed DUI. The Commissioner appeals from the circuit court's February 14, 2020 order.

II. STANDARD OF REVIEW

In this appeal, the Commissioner challenges a circuit court order that affirms an administrative decision. We have 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 [(g) (eff. 2021)] 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). West Virginia Code § 29A-5-4(g) (eff. 2021)⁶ requires a court to reverse, vacate, or modify an administrative agency's order or decision if a petitioner's substantial rights have been prejudiced because the agency's findings, inferences, conclusions, decision, or order (1) violates constitutional or statutory provisions; (2) exceeds the agency's statutory authority or jurisdiction; (3) was made upon unlawful procedures; (4) is affected by other error of law; (5) is clearly wrong in view of the reliable, probative, and substantial evidence on the whole record; or (6) is arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. See also Syl. Pt. 2, Shepherdstown Volunteer Fire Dep't v. State ex rel. State of W. Va. Hum. Rts. Comm'n , 172 W. Va. 627, 309 S.E.2d 342 (1983). With these standards of review in mind, we will consider the Commissioner's appeal.

III. ANALYSIS

In this appeal, the Commissioner objects that the circuit court substituted its judgment for that of the factfinder, and showed an improper preference for testimonial evidence over documentary evidence, when it found that Mr. Null was the one who requested the blood test. According to the Commissioner, West Virginia Code § 17C-5-9 —which both OAH and the circuit court invoked in support of their decisions—does not apply unless the driver demands that his or her blood be drawn for testing.⁷ Mr. Null responds, however, that there is no practical difference between requesting a blood test and agreeing to a blood test and argues that a citizen's due process right should not "hinge on who won the race to ask for a blood test first." We agree with the Commissioner.

A. OAH's findings of fact are entitled to deference.

As we have consistently held, "findings of fact by the administrative officer are accorded deference unless the reviewing court believes the findings to be clearly wrong." Muscatell at 590, 474 S.E.2d at 520, syl. pt. 1, in part. This rule flows logically from the statute, which provides that appeals in contested cases are to be decided "upon the record made before the agency" and that a circuit court may not receive testimony "except ... in cases of alleged irregularities in procedure before the agency[ ] not shown in the record ...." W. Va. Code § 29A-5-4(f). Indeed, by statute, a reviewing court may not reverse "administrative findings" unless they are "[c]learly wrong in view of the reliable, probative, and substantial evidence on the whole record[.]" W. Va. Code § 29A-5-4(g)(5) ; Syl. Pt. 1, in part, Antero Res. Corp. v. Steager , 244 W. Va. 81, 851 S.E.2d 527 (2020) (quoting Syl. Pt. 1, in part, Griffith v. ConAgra Brands, Inc. , 229 W. Va. 190, 728 S.E.2d 74 (2012) ) (stating that "[f]indings of fact of the administrative law judge will not be set aside or vacated unless clearly wrong").

In this case, OAH found that the...