Reed v. Hill, 14–0103.

• Decision Date: 27 February 2015
• Docket Number: No. 14–0103.,14–0103.
• Citation: 235 W.Va. 1,770 S.E.2d 501
• Court: West Virginia Supreme Court
• Parties: Patricia S. REED, Commissioner, West Virgini a Division Of Motor Vehicles Petitioner Below, Petitioner v. Jeffrey HILL, Respondent Below, Respondent.

235 W.Va. 1

770 S.E.2d 501

Patricia S. REED, Commissioner, West Virgini a Division Of Motor Vehicles Petitioner Below, Petitioner

v.Jeffrey HILL, Respondent Below, Respondent.

No. 14–0103.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 27, 2015.

Filed Feb. 27, 2015.

Patrick Morrisey, Esq., Attorney General, Janet E. James, Esq., Senior Assistant Attorney General, Charleston, WV, for Petitioner.

Todd F. La Neve, Esq., Clarksburg, WV, for Respondent.

Opinion

LOUGHRY, Justice.

The petitioner, Patricia S. Reed, Commissioner of the West Virginia Division of Motor Vehicles (“Commissioner”),¹ appeals the Circuit Court of Kanawha County's December 30, 2013, order affirming the November 13, 2012, order of the Office of Administrative Hearings (“OAH”). The OAH reversed the Commissioner's January 28, 2011, order that administratively revoked the respondent Jeffrey Hill's driver's license for driving a motor vehicle while under the influence of alcohol (“DUI”). The OAH found there was insufficient evidence that the respondent was DUI or was lawfully arrested for DUI. After carefully considering the parties' briefs and oral argument, as well as the appendix record on appeal and the applicable law, we reverse the circuit court's order for the reasons set forth below and remand this matter for reinstatement of the Commissioner's revocation order.

I. Factual and Procedural Background

Deputy Edwin Delgado of the Taylor County Sheriff's Department testified that on the early morning of October 24, 2010, his police cruiser was nearly hit head-on by an oncoming vehicle, requiring the deputy to take quick evasive action to avoid a collision. He indicated that the driver of the other vehicle took no action to avoid a collision and, in the deputy's estimation, was traveling in excess of the posted speed limit. The deputy turned his cruiser around, caught up with the other vehicle, and initiated a traffic stop at 2:07 a.m.

The stopped vehicle was driven by the respondent, Jeffrey Hill, and contained two passengers. At the administrative hearing in this matter, Mr. Hill denied speeding and denied that he was driving down the very center of the roadway; however, he admitted that he was driving toward the center of the unlined roadway and that he also had to swerve to avoid striking the police car. He testified that immediately after swerving, he knew he was going to be pulled over. Mr. Hill has conceded that the officer had sufficient grounds to stop his vehicle.²

Upon having Mr. Hill exit the vehicle, Deputy Delgado smelled an odor of an alcoholic beverage emanating from both the vehicle and from Mr. Hill's breath. The deputy observed that Mr. Hill had bloodshot and glassy eyes, was a bit unsteady while standing, talked in a continuous and excited manner, and had a slight slur in his speech. The deputy attributed the slur to both nervousness and to alcohol impairment. Mr. Hill admitted that he had been drinking beer, but he chose to drive his friend's car because he believed that he was in a better condition to drive than were his friends. The deputy administered three field sobriety tests-the horizontal gaze nystagmus (“HGN”), the walk and turn, and the one leg stand-and a preliminary breath test (“PBT”) to Mr. Hill.³ Mr. Hill passed the walk and turn and one leg stand tests. As to the HGN test, the deputy wrote on the DUI Information Sheet that he observed two detection clues in each of Mr. Hill's eyes. Two detection clues in each eye constitutes a total of four detection clues, which is a failing score. However, at the administrative hearing, the deputy gave contradictory testimony about his observations during the HGN test and testified to his belief that Mr. Hill had passed the test.

Mr. Hill took the PBT at 2:15 a.m. The PBT registered a blood alcohol concentration (“BAC”) of .114. Deputy Delgado arrested Mr. Hill for DUI at 2:25 a.m. and subsequently transported him to the police station.⁴ See W.Va.Code § 17C–5–2 (2010) (defining criminal DUI to include driving under the influence of alcohol or driving with a BAC of .08 or more). Mr. Hill executed the West Virginia Implied Consent Statement and, at 4:11 a.m., registered a BAC of .108 on the designated secondary chemical breath test.

Deputy Delgado wrote on the DUI Information Sheet that during a post-arrest interview, Mr. Hill admitted that he had consumed four twelve-ounce bottles of light beer in a period of one hour.⁵ However, during the administrative hearing, Mr. Hill testified that he had consumed this amount of beer over a longer period of time. Mr. Hill also testified that he had stopped drinking one hour before driving because he wanted to “sober up,” but he then denied that he was under the influence of alcohol.⁶ Finally, Mr. Hill's father testified that when he saw the respondent approximately one hour after the arrest, his son did not appear to be impaired.⁷

Upon receipt of the DUI Information Sheet completed by Deputy Delgado, the Commissioner entered an order on January 28, 2011, administratively revoking Mr. Hill's driver's license for DUI. See W.Va.Code § 17C–5A–1 (2008) (providing for revocation of driver's license if person drives under the influence of alcohol or drives with a BAC of .08 or more).⁸

Mr. Hill timely challenged the revocation at the OAH. After holding an evidentiary hearing, the OAH reversed the Commissioner's revocation order. The OAH concluded that the deputy had sufficient reasonable suspicion to initiate the traffic stop, but did not have reasonable grounds to believe that Mr. Hill was driving under the influence of alcohol or to make a lawful arrest. See W.Va.Code § 17C–5A–2(f) (2010). In reaching these conclusions, the OAH found that the HGN test was improperly administered and must be disregarded; that Mr. Hill passed two field sobriety tests despite continuously talking to the officer, and his talking would have been distracting to Mr. Hill thus making it harder to pass those tests; and that the PBT result must be disregarded because Deputy Delgado was not properly certified to administer the PBT and had failed to observe Mr. Hill for fifteen minutes before administering the test. The OAH's order did not mention the secondary chemical test result.

The Commissioner appealed to the circuit court, which affirmed the OAH on December 30, 2013. In addition to discounting the evidence of the HGN and PBT tests, the circuit court concluded that the results of the secondary chemical test should be disregarded because, in the circuit court's opinion, Deputy Delgado did not constantly observe Mr. Hill for the required twenty minutes prior to the administration of the secondary test.

Seeking reinstatement of the revocation order, the Commissioner now appeals the circuit court's order to this Court.

II. Standard of Review

This Court applies the following standard of review when reviewing a circuit court's order in an administrative appeal:

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.

Syl. Pt. 1, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996).

Upon judicial review of a contested case under the West Virginia Administrative Procedure Act, Chapter 29A, Article 5, Section 4(g), the circuit court may affirm the order or decision of the agency or remand the case for further proceedings.

The circuit court shall reverse, vacate or modify the order or decision of the agency if the substantial rights of the petitioner or petitioners have been prejudiced because the administrative findings, inferences, conclusions, decisions or order are: “(1) In violation of constitutional or statutory provisions; or (2) In excess of the statutory authority or jurisdiction of the agency; or (3) Made upon unlawful procedures; or (4) Affected by other error of law; or (5) Clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or (6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.”

Syl. Pt. 2, Shepherdstown Volunteer Fire Dept. v. State ex rel. State of W.Va. Human Rights Comm'n, 172 W.Va. 627, 309 S.E.2d 342 (1983). With these precepts in mind, we turn to a consideration of the case before us.

III. Discussion

West Virginia Code § 17C–5A–2(f) requires the OAH to make specific findings after considering the evidence in an administrative hearing. These findings include whether the investigating law enforcement officer had reasonable grounds to believe the person was driving under the influence of alcohol, whether the person was lawfully placed under arrest, and whether the tests, if any, were administered in accordance with the law.⁹ When overturning the Commissioner's revocation order, the OAH concluded that Deputy Delgado did not have sufficient evidence of DUI to arrest Mr. Hill during the traffic stop. For the reasons discussed below, this was error. While the OAH was not clearly wrong to disregard the results of the HGN and PBT tests, there still remained evidence of DUI providing the deputy with probable cause to arrest Mr. Hill. Moreover, when considering all of the evidence of DUI, including the .108 BAC result on the secondary chemical breath test, the Commissioner's revocation order should have been upheld.

A. PBT and HGN Test Results

The OAH found that Deputy Delgado did not properly administer the HGN test because he failed to perform a pre-assessment to ascertain whether Mr. Hill's eyes displayed equal tracking. The OAH also found that the deputy gave conflicting evidence regarding his observations during the HGN test. In prior cases, we have explained that a police officer's failure to satisfy some requirements for administering an HGN test goes to the weight of the evidence, not to its...