Muscatell v. Cline, No. 22945

CourtSupreme Court of West Virginia
Writing for the CourtALBRIGHT; WORKMAN
Citation474 S.E.2d 518,196 W.Va. 588
PartiesBeverly S. Jackson MUSCATELL, Petitioner Below, Appellee, v. Jane L. CLINE, Commissioner, Respondent Below, Appellant.
Docket NumberNo. 22945
Decision Date14 June 1996

Page 518

474 S.E.2d 518
196 W.Va. 588
Beverly S. Jackson MUSCATELL, Petitioner Below, Appellee,
v.
Jane L. CLINE, Commissioner, Respondent Below, Appellant.
No. 22945.
Supreme Court of Appeals of West Virginia.
Submitted Jan. 17, 1996.
Decided June 14, 1996.

Page 520

[196 W.Va. 590] 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.

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.

3. "Police officers may stop a vehicle to investigate if they have an articulable reasonable suspicion that the vehicle is subject to seizure or a person in the vehicle has committed, is committing, or is about to commit a crime...." Syllabus point 1, in part, State v. Stuart, 192 W.Va. 428, 452 S.E.2d 886 (1994).

4. "When evaluating whether or not particular facts establish reasonable suspicion, one must examine the totality of the circumstances, which includes both the quantity and quality of the information known by the police." Syllabus point 2, State v. Stuart, 192 W.Va. at 429, 452 S.E.2d at 887.

5. For a police officer to make an investigatory stop of a vehicle the officer must have an articulable reasonable suspicion that a crime has been committed, is being committed, or is about to be committed. In making such an evaluation, a police officer may rely upon an anonymous call if subsequent police work or other facts support its reliability, and, thereby, it is sufficiently corroborated to justify the investigatory stop under the reasonable-suspicion standard.

6. Where there is a direct conflict in the critical evidence upon which an agency proposes to act, the agency may not elect one version of the evidence over the conflicting version unless the conflict is resolved by a reasoned and articulate decision, weighing and explaining the choices made and rendering its decision capable of review by an appellate court.

Jerald E. Jones, West & Jones, Clarksburg, for Appellee.

Paul E. Jordan, Senior Assistant Attorney General, Charleston, for Appellant.

ALBRIGHT, Justice.

Appellant, Jane L. Cline, Commissioner of the West Virginia Division of Motor Vehicles (Commissioner), appeals a final order of the Circuit Court of Harrison County, West Virginia, reversing an order of the Commissioner which had revoked the operator's license of Beverly S. Jackson Muscatell, appellee, for a period of six months for driving under the influence of alcohol. For the reasons we articulate, we reverse the judgment of the Circuit Court of Harrison County and remand with directions.

On August 12, 1993, between 5:30 and 6:00 p.m., Senior Trooper G.L. Brown of the West Virginia State Police was on road patrol in Bridgeport, West Virginia, near the intersection of I-79 and U.S. Route 50. He received a radio call from the State Police Communication Office in Shinnston, West Virginia, requesting him to be on the lookout for a

Page 521

[196 W.Va. 591] small, light blue vehicle traveling toward Clarksburg from the Grafton area. Trooper Brown was informed that the driver of the vehicle, named Beverly S. Jackson Muscatell, might have been involved in a hit and run accident, might be under the influence of alcohol, and might be proceeding toward Clarksburg from Grafton. At the time of the radio call, Trooper Brown did not know the source of the information conveyed to him and considered it anonymous. The trooper later learned that the information came from Trooper Paul Ferguson 1, who was investigating a reported hit-and-run accident in the Grafton area of West Virginia that appears actually to have been a family argument which did not involve any hit-and-run incident.

Shortly after 6:00 p.m., Trooper Brown was traveling east on U.S. Route 50, near the I-79 interchange, when he observed a woman driving west on U.S. Route 50 in a light blue Dodge Omni or Plymouth Horizon, coming from the direction of Grafton and headed toward Clarksburg. The trooper turned around and followed the blue car west on U.S. Route 50. The car turned off U.S. Route 50 onto what is called Bridgeport Hill or old Route 50, going toward Clarksburg. The trooper testified on direct examination that the vehicle straddled or went across the center line one time before coming back to the driving lane. On cross-examination the trooper acknowledged that he earlier had asserted that he observed no improper driving by appellee at the time of the stop. During oral argument before this Court, it also became unclear as to whether the appellee crossed the centerline or simply moved from one westbound lane to another and back again. The trooper further testified that after observing the "straddle" of the centerline, he pulled the vehicle over and asked the subject if her name was Beverly. She answered in the affirmative, and the trooper looked at her operator's license. Trooper Brown advised Ms. Muscatell of the reason for the stop by advising her that a complaint had been made against the type of vehicle she was driving that was coming from Grafton. No damage to the vehicle was observed.

While questioning Ms. Muscatell and obtaining her license, Trooper Brown detected the strong odor of alcohol "from the vehicle and from her person as she was speaking to me briefly there about the incident ...", presumably the events at Grafton involving an argument there. He questioned Ms. Muscatell as to whether she had been drinking, and she admitted to drinking alcoholic beverages. The trooper testified that Ms. Muscatell was visibly upset, apparently over a family dispute which had taken place before she left Grafton. The trooper asked Ms. Muscatell to get out of her vehicle so he could give her some field sobriety tests. He noticed her eyes were red and bloodshot and she had been crying.

Trooper Brown testified that he administered a preliminary breath test with the Alco Sensor III device. The trooper testified that he had been trained on the device and that the device was "approved by my department to use for the purpose of determining a preliminary analysis of how much somebody's had to drink for probable cause to arrest them or not just on, on the one test." The result of the preliminary test indicated Ms. Muscatell's blood alcohol concentration was .210 by weight.

The trooper further testified that he then administered a series of field sobriety tests. Trooper Brown proceeded to administer the walk-and-turn test. He administered the horizontal gaze nystagmus test (HGN), for which he testified he was trained, and recited the indications that appellee did not achieve an acceptable grade on it. Finally, the trooper testified, he administered the one-leg-stand test and described her reactions in his testimony. During the walk-and-turn test, Ms. Muscatell stopped walking to steady herself, lost her balance while walking, and did not turn and pivot correctly. During the HGN test, Ms. Muscatell's eyes could not smoothly follow a stimulus at less than a 45 degree angle from forward gaze. She exhibited

Page 522

[196 W.Va. 592] the presence of distinct nystagmus at maximum deviation from forward gaze. During the one-leg-stand test, Ms. Muscatell used her arms for balance and lowered her foot to the ground. She became frustrated and told the trooper she could not do the test.

"That would have been all the field sobriety tests I would have give her to give me probable cause to make my decision of whether to arrest her or not," the trooper testified. He placed her under arrest for driving under the influence of alcohol at 6:20 p.m. and transported her to the Harrison County Sheriff's Department, where he administered a secondary breathalyzer chemical test. These results were not entered into evidence at the administrative hearing because Trooper Brown did not testify he observed Ms. Muscatell for twenty minutes to ensure she had not ingested food, drink, or other materials by mouth.

Ms. Muscatell was read her rights in preparation for an interview. She signed the form and indicated she did not want counsel, and she would not answer the standardized questions on the form. The interview ended, and Ms. Muscatell was transported to the Harrison County Correctional Center.

Trooper Brown timely filed the "statement of arresting officer" required by law in DUI cases to be submitted to the Division of Motor Vehicles. 2 That statement included the results of the secondary test which were not admitted into evidence in the administrative hearing. Thereupon, the Commissioner issued a notice of revocation of appellee's driver's license which began the proceeding now before us. That notice specified that the revocation was for the offense of driving a motor vehicle in this State under the influence of alcohol. It was sent to Ms. Muscatell on August 20, 1993, and further advised her that, in accordance with W.Va.Code § 17C-5A-1(c) (1994), 3 her privilege to operate a motor vehicle in this State was revoked. 4

Ms. Muscatell timely requested an administrative hearing. On March 28, 1994, the hearing was held before a hearing examiner of the Division of Motor Vehicles. Trooper Brown testified at the hearing, and Ms. Muscatell was represented by counsel. It appears from the transcript of the administrative hearing that in the parallel criminal proceeding against appellee, Trooper Brown had asserted that at the time he stopped appellee in August, 1993, she was not doing any improper driving and that he had no reason to stop appellee other than the anonymous message radioed from...

To continue reading

Request your trial
248 practice notes
  • State v. Berrill, No. 23050
    • United States
    • Supreme Court of West Virginia
    • 14 juin 1996
    ...an error, that was plain, and that affected Mr. Berrill's substantial rights and seriously affected the fairness, integrity, or Page 518 [196 W.Va. 588] public reputation of the judicial proceedings. Syl. pt. 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 This Court has previously determin......
  • State v. Dilliner, No. 29993.
    • United States
    • Supreme Court of West Virginia
    • 2 juillet 2002
    ...its reliability as evidence of intoxication; in both cases we assumed that it was admissible for that purpose. In Muscatell v. Cline, 196 W.Va. 588, 595, 474 S.E.2d 518, 525 (1996), we upheld a DUI conviction where there was a challenge to HGN evidence on the grounds that there had been no ......
  • State v. Boyea, No. 99-061.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 1 décembre 2000
    ...observation of inordinately long stop at stop sign, thus stop was justified 765 A.2d 882 by reasonable suspicion); Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518, 527 (1996) (anonymous report of light blue car traveling certain road having been involved in hit-and-run, corroborated only ......
  • Webb v. West Virginia Bd. of Medicine, No. 30032.
    • United States
    • Supreme Court of West Virginia
    • 3 juillet 2002
    ...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 A. Findings of Fact Support Conclusions of Law In recognition of this standard of review and having reviewed the order of the......
  • Request a trial to view additional results
248 cases
  • State v. Berrill, No. 23050
    • United States
    • Supreme Court of West Virginia
    • 14 juin 1996
    ...an error, that was plain, and that affected Mr. Berrill's substantial rights and seriously affected the fairness, integrity, or Page 518 [196 W.Va. 588] public reputation of the judicial proceedings. Syl. pt. 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 This Court has previously determin......
  • State v. Dilliner, No. 29993.
    • United States
    • Supreme Court of West Virginia
    • 2 juillet 2002
    ...its reliability as evidence of intoxication; in both cases we assumed that it was admissible for that purpose. In Muscatell v. Cline, 196 W.Va. 588, 595, 474 S.E.2d 518, 525 (1996), we upheld a DUI conviction where there was a challenge to HGN evidence on the grounds that there had been no ......
  • State v. Boyea, No. 99-061.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 1 décembre 2000
    ...observation of inordinately long stop at stop sign, thus stop was justified 765 A.2d 882 by reasonable suspicion); Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518, 527 (1996) (anonymous report of light blue car traveling certain road having been involved in hit-and-run, corroborated only ......
  • Webb v. West Virginia Bd. of Medicine, No. 30032.
    • United States
    • Supreme Court of West Virginia
    • 3 juillet 2002
    ...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 A. Findings of Fact Support Conclusions of Law In recognition of this standard of review and having reviewed the order of the......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT