Reed v. Pettit

• Decision Date: 13 May 2015
• Docket Number: No. 14–0372.,14–0372.
• Citation: 235 W.Va. 447,774 S.E.2d 528
• Court: West Virginia Supreme Court
• Parties: Patricia S. REED, Commissioner of the West Virginia Division of Motor Vehicles, Petitioner Below, Petitioner v. James PETTIT, Respondent Below, Respondent.

235 W.Va. 447

774 S.E.2d 528

Patricia S. REED, Commissioner of the West Virginia Division of Motor Vehicles, Petitioner Below, Petitioner

v.James PETTIT, Respondent Below, Respondent.

No. 14–0372.

Supreme Court of Appeals of West Virginia.

Submitted April 7, 2015.

Decided May 13, 2015.

Patrick Morrisey, Esq., Attorney General, Elaine L. Skorich, Esq., Assistant Attorney General, Charleston, WV, for Petitioner.

Michael R. Whitt, Esq., Lewisburg, WV, for Respondent.

Opinion

BENJAMIN, Justice:

Petitioner Patricia S. Reed, Commissioner of the West Virginia Division of Motor Vehicles (“DMV”),¹ appeals the March 20, 2014, order of the Circuit Court of Kanawha County. The circuit court's order affirmed the order of the Office of Administrative Hearings (“OAH”), which reversed the DMV's order of revocation revoking the driver's license of Respondent James Pettit for the offense of driving under the influence of alcohol (“DUI”). Upon consideration of the parties' briefs, the record presented, and the oral argument, this Court concludes that the circuit court erred in finding that Mr. Pettit's arrest was unlawful and by reinstating his driver's license. Therefore, we reverse the circuit court's order, and we remand for reinstatement of the DMV's revocation order.

I. FACTUAL AND PROCEDURAL BACKGROUND

The White Sulphur Springs Police Department in Greenbrier County, West Virginia, scheduled a sobriety checkpoint to be held on October 16, 2010, between 8 p.m. and 2 a.m. on U.S. Route 60 West in Harts Run in Greenbrier County. The guidelines governing the operation of sobriety checkpoints are set forth in the police department's “DUI Sobriety Checkpoint Operations Manual” (“Manual”). Pursuant to the Manual, the scheduled checkpoint was announced in the local newspaper. However, in violation of the Manual, the Greenbrier County Prosecutor's Office was not contacted for inclusion in the checkpoint planning.

On October 16, 2010, the Chief of Police of White Sulphur Springs, James Lee Hylton, who was the officer in charge of the checkpoint, moved the checkpoint to U.S. Route 60 East in White Sulphur Springs, a distance of approximately three and one-half to four miles from the originally scheduled location. Chief Hylton testified before the OAH that he moved the location closer to town because of a shortage of available police officers. He explained that because the majority of police calls come from the town, a police officer working the DUI checkpoint in town could more quickly answer a police call. Finally, while the Manual requires six officers to work a sobriety checkpoint plus one officer in charge for a total of seven officers, because the police department was shorthanded at the time, only four officers and one officer in charge actually worked the checkpoint at issue.

Corporal J.W. Hopkins, the investigating officer below, was working at the checkpoint when he encountered Respondent James Pettit. After observing that Mr. Pettit's speech was slurred and his eyes were glassy, Corporal Hopkins asked him if he had been drinking, and Mr. Pettit replied that he had consumed alcohol at home and at a bar. Consequently, Corporal Hopkins administered a series of field sobriety tests. Corporal Hopkins testified before the OAH that Mr. Pettit failed the walk-and-turn, the one-leg stand, and the horizontal gaze nystagmus tests.² Corporal Hopkins further testified that he administered a preliminary breath test which Mr. Pettit failed. According to Corporal Hopkins, he then transported Mr. Pettit to the Greenbrier County Sheriff's Department where he administered a secondary chemical test of Mr. Pettit's breath. The result of the test indicated that Mr. Pettit's blood alcohol content was .157.

By order dated November 16, 2010, the DMV revoked Mr. Pettit's privilege to operate a motor vehicle in this State based on his DUI. Mr. Pettit appealed the revocation, and after a hearing before the OAH, the OAH reversed Mr. Pettit's driver's license revocation. The OAH found that the sobriety checkpoint at issue deviated from the police department's Manual and that these deviations rendered Mr. Pettit's arrest unlawful. Specifically, the OAH found that the Chief of Police did not have the Prosecuting Attorney approve the checkpoint as mandated by the Manual. In addition, the checkpoint was moved from its originally scheduled location without notice to the public. Finally, while the Manual calls for six officers and one officer in charge to be assigned to work a sobriety checkpoint, only four officers and one officer in charge worked the checkpoint at issue.

The DMV appealed the OAH's decision to the Circuit Court of Kanawha County. By order dated March 20, 2014, the circuit court affirmed the decision of the OAH. The DMV now appeals the circuit court's order.

II. STANDARD OF REVIEW

This Court set forth the standard of review dealing with driver's license revocations in syllabus point 1 of Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996), as follows:

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.

With this standard to guide us, we will now review the circuit court's decision below.

III. ANALYSIS

In this case, we are asked to determine the lawfulness of the sobriety checkpoint at which Mr. Pettit was stopped and found to be DUI. West Virginia Code § 17C–5A–2(f) (2010), the statute in force at the time of Mr. Pettit's arrest, provided in pertinent part:

In the case of a hearing in which a person is accused of driving a motor vehicle while under the influence of alcohol, controlled substances or drugs, or accused of driving a motor vehicle while having an alcohol concentration in the person's blood of eight hundredths of one percent or more, by weight ... the Office of Administrative Hearings shall make specific findings as to: ... (2) whether the person was lawfully placed under arrest for an offense involving driving under the influence of alcohol, controlled substances or drugs, or was lawfully taken into custody for the purpose of administering a secondary test....

According to this statute, in a case involving a license revocation due to DUI, the OAH is required to make a specific finding that the person was lawfully arrested.³ Under this Court's precedent, a person cannot be considered lawfully arrested for DUI, as a prerequisite to the administrative revocation of the person's driver's license, unless the underlying traffic stop was legally valid. In Dale v. Ciccone, 233 W.Va. 652, 760 S.E.2d 466 (2014), this Court explained:

As this Court stated in Dale v. Odum, 233 W.Va. 601, 760 S.E.2d 415, 2014 WL 641990 (W.Va. Feb. 11, 2014) (memorandum decision), “absent a valid investigatory stop, a finding that the ensuing arrest was lawful cannot be made.” Id. 606, 760 S.E.2d at 420, 2014 WL 641990 at *5. This issue was also addressed in Dale v. Arthur, 2014 WL 1272550 (W.Va. March 28, 2014) (memorandum decision), as follows:

Our decision in Clower v. West Virginia Department of Motor Vehicles, 223 W.Va. 535, 544, 678 S.E.2d 41, 50 (2009), applied the 2004 version of West Virginia Code § 17C–5A–2(e) which required a specific finding of “whether the person was lawfully placed under arrest for an offense involving driving under the influence of alcohol ... or was lawfully taken into custody for the purpose of administering a secondary test.” The 2008 version of the statute did not contain this language. Miller v. Chenoweth, 229 W.Va. 114, 117 n. 5, 727 S.E.2d 658, 661 n. 5 (2012). However, the Legislature amended the statute in 2010, and restored the language requiring a finding that the person was either lawfully arrested or lawfully taken into custody. Id.

2014 WL 1272550 at *3 n. 2. As this Court observed in Arthur, “the decision to include the requirement is within the prerogative of the Legislature, and it is not to be invaded by this Court.” Id. at *3. Consequently, in cases in which the applicable version of West Virginia Code § 17C–5A–2 has included the requirement for a lawful arrest, as it does in the case sub judice and did in Clower, an individual cannot be con sidered lawfully arrested for DUI where law enforcement did not have the requisite articulable reasonable suspicion to initiate the underlying traffic stop.

Ciccone, 233 W.Va. at 659, 760 S.E.2d at 473. See also Dale v. Barnhouse, No. 14–0056, 2014 WL 6607493 at *3 (W.Va. Nov. 21, 2014) (memorandum decision) (finding that “the investigating officer in this case did not have the requisite articulable reasonable suspicion to initiate a traffic stop and, thus, respondent was not lawfully placed under arrest”); Dale v. Haynes, No. 13–1327, 2014 WL 6676546 (W.Va. Nov. 21, 2014) (memorandum decision) (rejecting Commissioner's argument that an arrest can be lawful absent a valid traffic stop).

In addition, this Court previously has indicated that under W. Va.Code § 17C–5A–2(f), evidence that a person was driving while intoxicated collected incident to an unlawful arrest resulting from an unlawful stop should not be considered by the OAH or the circuit court in appeals involving driver's license revocations. In Dale v. Arthur, No. 13–0374, 2014 WL 1272550 (W.Va. Mar. 28, 2014) (memorandum decision), we determined that the exclusion of evidence collected during an unlawful stop was proper under W. Va.Code § 17C–5A–2(f). In doing so, this Court relied on Clower v. West Virginia Department of Motor Vehicles, 223 W.Va. 535, 678 S.E.2d 41 (2009), superseded by statute as stated in Miller v. Chenoweth, 229 W.Va. 114, 727 S.E.2d 658 (2012), in which we concluded that the revocation of a driver's license was improper and did not address evidence that the motorist had slurred speech, smelled of alcohol, failed field sobriety tests,...