Dale v. Painter

234 W.Va. 343

765 S.E.2d 232

Steven O. DALE, Acting Commissioner of the West Virginia Division of Motor Vehicles, Respondent Below, Petitioner

v.Christina PAINTER, Petitioner Below, Respondent.

No. 13–1225.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 1, 2014.

Decided Oct. 30, 2014.

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

David Moye, Esq., Winfield, WV, Counsel for the Respondent.

Opinion

BENJAMIN, Justice:

The petitioner, Steven O. Dale, Commissioner of the West Virginia Division of Motor Vehicles (“Commissioner”), revoked respondent Christina Painter's driver's license on September 9, 2010, for the offense of driving under the influence of alcohol with a blood alcohol concentration (“BAC”) of 0.15 percent or more. Following an administrative hearing on December 6, 2011, before the Office of Administrative Hearings (“OAH”), the chief hearing examiner entered an order on April 27, 2012, affirming the Commissioner's order of revocation. Ms. Painter appealed to the Circuit Court of Putnam County which, by order entered on October 28, 2013, reversed the OAH's order. The Commissioner now appeals to this Court, arguing that the circuit court erred in reversing the revocation order of the OAH. Having conducted a thorough review of this case, we find that the circuit court did commit reversible error, and we therefore reverse and remand the circuit court's October 28, 2013, order.

I. FACTUAL AND PROCEDURAL BACKGROUND

On August 21, 2010, Officer J.J. Garbin of the Nitro Police Department arrested Ms. Painter for driving under the influence of alcohol. The Commissioner revoked Ms. Painter's driver's license on September 9, 2010. Ms. Painter requested a hearing before the OAH to contest the revocation. The hearing took place on December 6, 2011. Only Officer Garbin and Ms. Painter testified.

Officer Garbin testified that he initiated a traffic stop of Ms. Painter's vehicle at 12:07 a.m. on August 21, 2010, because she was traveling 41 mph in a 25 mph zone. Officer Garbin observed that Ms. Painter was unsteady as she exited the vehicle and walked to the roadside, but that she was normal while standing. He smelled the odor of alcohol coming from Ms. Painter's vehicle, described her speech as slow, and stated that her eyes were glassy. He testified that Ms. Painter denied having consumed any alcohol that evening.

Officer Garbin administered three field sobriety tests: the horizontal gaze nystagmus test, the walk and turn test, and the one leg stand test. Ms. Painter failed all three tests. Officer Garbin administered a preliminary breath test,¹ and then at 12:15 a.m., he placed Ms. Painter under arrest for driving under the influence of alcohol.

Ms. Painter testified that while Officer Garbin transported her to the Nitro Police Department for processing, she made a phone call to her daughter:

A [Ms. Painter] ... I asked to call my daughter from the squad car because my daughter was home alone. I called my daughter that's in law school and told her what was going on. I said I did not want to alarm her, but I wanted to let her know what was going on. I don't remember where I was going with that. Oh, he overheard my conversation with my daughter, and she said, “Well, Mom, you don't sound like you've been drinking,” and I said, “It could be something to do with that surgery. I remember they warned me about that.”²

So he was well aware that I had the surgery. And then I told my daughter I'm going to have to get a blood test.

Q [Commissioner's counsel]³Did you tell the officer there himself?

A No, not this officer.

Q Did you ever tell them?

A At Western Regional I told them. I asked him if he heard my conversation, and he didn't offer me one.

(Footnotes and emphasis added.)

Upon arriving at the police department, Officer Garbin administered a second breath test at approximately 12:55 a.m. That test showed that Ms. Painter's BAC was 0.164%. Ms. Painter was then transferred to the Western Regional Jail. Ms. Painter claims that she made a request for a blood test at the jail.

Q [Ms. Painter's counsel]⁴ Christina, [y]ou discussed earlier that you had asked for a blood test and that you had actually specifically asked for a blood test at Western Regional. Can you talk about that for me, please?

A [Ms. Painter] Well, they already put me in a cell, and somebody was walking by, a guard or somebody. I don't know what [h]is position or rank was, but I said, “Please have someone give me a blood test.” I said, “That's the only way you're going to know,” but I never heard anything from anybody. I don't even know if they reported my request.

Q How long had you been at the jail when that happened? Was that right when you arrived or after hours?

A No, it wasn't right when I arrived. I was kind of scared. I didn't really want to say anything, you know, and then finally, you know, I had better say something here, and it was shortly after I arrived.

(Footnote added.)

The chief hearing examiner of the OAH entered an order on April 27, 2012, affirming the Commissioner's order of revocation. The OAH's order concluded that the Commissioner had proved by a preponderance of the evidence that Ms. Painter “drove, exhibited symptoms of intoxication, and consumed alcohol” so as to warrant the administrative revocation of her driver's license for driving under the influence of alcohol. The order further stated:

Additionally, even though [Ms. Painter] requested a blood test and was never given one, both the totality of the evidence and the fact that the secondary chemical test results were not borderline dictate that [Ms. Painter] drove with a blood alcohol concentration of fifteen hundredths of one percent, or more, by weight. It is acknowledged that in accordance with West Virginia [C]ode § 17C–5–9 and Moczek v. Bechtold, 178 W.Va. 553, 363 S.E.2d 238 [] (1987), [Ms. Painter] has the right to a blood test after having submitted to a designated secondary chemical test of her breath. In sum, the evidence presented by the Respondent was not negated by the Investigating Officer's failure to afford [Ms. Painter] a blood test.

Ms. Painter appealed the order of the OAH to the circuit court.⁵ The circuit court held a hearing on the matter on July 10, 2013, and entered its order on October 28, 2013, granting the petition for appeal and reversing the revocation ordered by the OAH. The circuit court found that “[t]he Chief Hearing Examiner specifically made a finding that Ms. Painter requested a blood test in accordance with W. Va.Code § 17C–5–9 and that Ms. Painter was not afforded this statutory right.” In support, the circuit court noted, “In light of the record made before the Chief Hearing Examiner, it is plausible—in fact, it is uncontroverted—that the petitioner requested a blood test.” The circuit court continued:

The record indicates that Ms. Painter requested a blood test twice. The first request was made to the Investigating Officer and the second request was made to someone at Western Regional Jail. The Chief Hearing Examiner, however, only made a specific finding as to the request made to the Investigating Officer. Consequently, the [c]ourt will limit its review specifically to this finding.

In conclusion, the circuit court stated:

The [c]ourt FINDS that [Ms. Painter's] constitutional and statutory rights have been violated. To deny these rights prevents one from obtaining evidence necessary for their defense and hinders the truth finding function of a judicial proceeding. Also, such an interpretation eviscerates a statutory right granted by the West Virginia Legislature.

If an individual is given a constitutional and statutory right, and said right is violated, there must be some relief for this violation. In the case at bar, the appropriate relief can be found in W. Va.Code § 29A–5–4(g)(1).⁶ That code section provides that if an administrative agency's decision violates an individual's constitutional or statutory rights a reviewing court shall reverse, vacate, or modify the order. In the case at bar, the [c]ourt REVERSES and VACATES the Chief Hearing Examiner's decisions because its application of the law to the facts and its conclusions of law violate [Ms. Painter's] constitutional and statutory rights.

(Footnote added.)

The Commissioner now appeals the circuit court's October 28, 2013, order.

II. STANDARD OF REVIEW

Our standard of review in appeals dealing with driver's license revocation proceedings is well established:

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). “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. ” Syl. pt. 2, id.

III. ANALYSIS

On appeal, the Commissioner asserts that the circuit court erroneously found as fact that Ms. Painter requested a blood test in accordance with W. Va.Code § 17C–5–9 (1983)⁷ and was not provided with one. The Commissioner contends that the circuit court's finding was not supported by reliable, probative, and substantial evidence on the whole record. The Commissioner further argues that because the circuit court's factual findings are flawed, the court's conclusion of law that Ms. Painter's right to a blood test was violated constitutes reversible error. In her summary response brief, Ms. Painter argues that the circuit court did not err in finding that Ms. Painter requested a blood test, that the request was denied, and that her right to a blood test...