Dale v. Haynes

Steven O. Dale, Acting Commissioner of the West Virginia Departmentof Motor Vehicles Petitioner Below, Petitioner v. Teresa E. Haynes, Respondent Below, Respondent

No. 13-1327

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

November 21, 2014

(Kanawha County 13-AA-79)

MEMORANDUM DECISION

Petitioner Steven O. Dale, the Acting Commissioner of the West Virginia Department of Motor Vehicles (the "Commissioner"), by counsel Elaine L. Skorich, appeals the order of the Circuit Court of Kanawha County, entered November 18, 2013, that affirmed the Final Order of the Office of Administrative Hearings (OAH). The OAH rescinded the Commissioner's revocation of Respondent Teresa E. Haynes's driver's license for driving under the influence of alcohol ("DUI") on the ground that the Commissioner failed to establish an articulable reasonable suspicion to initiate the traffic stop of respondent's car and, therefore, failed to show that the investigating officer had reason to encounter and then arrest respondent for DUI. Respondent does not make an appearance.

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. Upon consideration of the standard of review, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

On July 30, 2011, Officer Hosby-Brown of the Ranson Police Department in Jefferson County stopped respondent allegedly because she was weaving as she drove and had twice ridden on the white line. Officer Hosby-Brown then summoned Officer Mathew Custer ("the investigating officer") to the scene. Once at the scene, the investigating officer conducted a series of field sobriety tests which respondent failed and then arrested respondent for DUI.

On August 26, 2011, the DMV revoked respondent's driving privileges for DUI for a period of one year.¹ On August 30, 2011, respondent timely requested an administrative hearing to challenge the results of her preliminary breath test and the constitutionality of the traffic stop.

At the January 19, 2012, administrative hearing before the OAH, the Commissioner presented the testimony of the investigating officer who stated as follows: He was summoned to the scene by Officer Hosby-Brown after Officer Hosby-Brown stopped respondent. He smelled alcohol on respondent's breath. Respondent admitted that she had four or five drinks that evening. Her eyes were bloodshot and glassy and her speech was slurred. When the investigating officer asked for respondent's driver's license, she said it was in her purse in the car's trunk. When respondent was ordered to retrieve her license from the trunk, she turned the car on and fumbled with the knobs on the dashboard. She then exited the car, but was unsteady while standing and walking to the rear of her car. She consented to, but failed, two field sobriety tests: the horizontal gaze nystagmus test and the walk-and-turn test. She refused to perform the one-leg-stand test. Her preliminary breath test registered .15%.

Also at the administrative hearing, the Commissioner presented the Incident Report and the DUI Information Sheet, both of which were completed by the investigating officer. The incident report provided the following:

On July 30. 2011 [, respondent's] vehicle was observed to be weaving in its lane and the passenger side tires struck the white fog line on two separate occasions. At 0123[,] a traffic stop was made on said vehicle[.] I asked driver . . . for her driver[']s license[,] vehicle registration[,] and proof of insurance. . . .

As for the DUI Information Sheet, the following boxes were checked under the heading "Vehicle In Motion[:]" "weaving" and "tires on the line marker." Respondent objected to the documents on the ground that neither document mentioned that respondent was stopped by Officer Hosby-Brown and, therefore, both documents wrongfully gave the impression that the investigating officer stopped respondent's car. Despite the objection, the hearing officer admitted both documents into evidence.

Officer Hosby-Brown did not attend the administrative hearing and, therefore, offered no testimony regarding the reason for the stop. Respondent also did not testify at the administrative hearing.

By Final Order entered May 28, 2013, the OAH rescinded the Commissioner's revocation of respondent driver's license. The OAH concluded that the investigating officer's testimony at the administrative hearing was directly contradicted by the information contained within the DUI Information Sheet and the Incident Report. Specifically, the OAH found that

[n]either of the afore-mentioned (sic) documents . . . indicates that the traffic stop was effectuated by another law enforcement officer. Rather, the [i]nvestigating [o]fficer implied, by his omission of this pertinent fact, and [by] affixing his signature to both documents, that the traffic stop was initiated by the [i]nvestigating [o]fficer.

The OAH then concluded that the Commissioner had failed to present evidence sufficient to allow it to make the findings required by West Virginia Code § 17C-5A-2(f).² That section provides as follows:

In the case of a hearing in which a person is accused of driving a motor vehicle while under the influence of alcohol . . . the Office of Administrative Hearings shall make specific findings as to: (1) Whether the investigating law-enforcement officer had reasonable grounds to believe the person to have been driving while under the influence of alcohol . . . ; (2) whether the person was lawfully placed under arrest for an offense involving driving under the influence of alcohol . . . : Provided, That this element shall be waived in cases where no arrest occurred due to driver incapacitation; (3) whether the person committed an offense involving driving under the influence of alcohol . . . ; and (4) whether the tests, if any, were administered in accordance with the provisions of this article and article five of this chapter.

On June 27, 2013, the Commissioner filed a petition for judicial review with the circuit court wherein the Commissioner argued that (1) the OAH was clearly wrong in concluding that the Commissioner had presented insufficient evidence to determine whether respondent was operating a motor vehicle in this state while under the influence of alcohol; and (2) the OAH erred in applying the criminal exclusionary rule to this administrative license revocation proceeding.³

By order entered November 18, 2013, the circuit court found that the OAH did not err in rescinding the Commissioner's revocation order. The circuit court noted that, pursuant to West Virginia Code § 17C-5A-2(f) (2012), it was required to determine whether the person was lawfully placed under arrest for DUI.⁴ The circuit court acknowledged that the Incident Reportand the DUI Information Sheet were "properly admitted into evidence at the administrative hearing and [were] admissible under [West Virginia Code §] 29A-5-2(b)." The circuit court also noted that, pursuant to Crouch v. West Virginia Division of Motor Vehicles, 219 W.Va. 70, 631 S.E.2d 628 (2006), the admission of those documents created a rebuttable presumption as to their accuracy. Id. at 76 n.12, 631 S.E.2d at 634 n.12. However, the circuit court found that respondent's counsel "rebutted the accuracy of [the Commissioner's] evidence by illustrating [the investigating officer's] inconsistent statements regarding what he observed and his role in the arrest." Therefore, the circuit court found that it could not determine whether respondent was lawfully placed under arrest for DUI. With regard to the Commissioner's claim that the OAH applied the exclusionary rule, the circuit court found that the OAH did not apply the exclusionary rule, but— instead—simply found that the Commissioner failed to produce the evidence required by West Virginia Code § 17C-5A-2(f).

The Commissioner now appeals the circuit court's order. This Court explained the standard of review in such appeals in Syllabus Point 1 of Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996), in which we said that

[o]n appeal of an administrative order from a circuit court, this Court is bound by the statutory standards contained in [West Virginia] 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.

This Court has also held that

[u]pon 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 Dep't v. State ex rel. State of W.Va. Human Rights Comm'n, 172 W.Va. 627, 309 S.E.2d 342 (1983). Thus, although deference is given to the administrative agency's factual findings, this Court applies a de novo standard of review to the agency's conclusions of law.

On appeal, the Commissioner first argues that the circuit court...