Frazier v. Ramadan

895 S.E.2d 25

Everett FRAZIER, Commissioner, West Virginia Division of Motor Vehicles, Respondent Below, Petitioner,

v.Jad H. RAMADAN, Petitioner Below, Respondent.

No. 22-0223

Supreme Court of Appeals of West Virginia.

Submitted: September 27, 2023

Filed: November 6, 2023

Syllabus by the Court

1. "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 Dep’t v. State ex rel. W. Va. Hum. Rts. Comm’n, 172 W. Va. 627, 309 S.E.2d 342 (1983).

2. "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[(g)] 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).

3. "Since a reviewing court is obligated to give deference to factual findings rendered by an administrative law judge, a circuit court is not permitted to substitute its judgment for that of the hearing examiner with regard to factual determinations. Credibility determinations made by an administrative law judge are similarly entitled to deference. Plenary review is conducted as to the conclusions of law and application of law to the facts, which are reviewed de novo." Syl. Pt. 1, in part, Cahill v. Mercer Cnty. Bd. of Educ., 208 W. Va. 177, 539 S.E.2d 437 (2000).

4. "Where there is evidence reflecting that a driver was operating a motor vehicle upon a public street or highway, exhibited symptoms of intoxication, and had consumed alcoholic beverages, this is sufficient proof under a preponderance of the evidence standard to warrant the administrative revocation of his driver’s license for driving under the influence of alcohol." Syl. Pt. 2, Albrecht v. State, 173 W. Va. 268, 314 S.E.2d 859 (1984).

5. "A person is ‘under the influence’ if the person (1) consumed, used, took, or ingested alcohol, controlled substances, or drugs and (2) the alcohol, controlled substances, drugs, or any combination thereof impaired the person’s ability to operate a motor vehicle with ordinary care." Syl. Pt. 4, Casto v. Frazier, 248 W. Va. 554, 889 S.E.2d 276 (2023).

6. "There are no provisions in either W. Va. Code, 17C-5-1 (1981), et seq., or W. Va. Code, 17C-5A-1 (1981), et seq., that require the administration of a chemical sobriety test in order to prove that a motorist was driving under the influence of alcohol or drugs for purposes of making an administrative revocation of his driver’s license." Syl. Pt. 2, Albrecht v. State, 173 W. Va. 268, 314 S.E.2d 859 (1984).

Appeal from the Circuit Court of Monongalia County, The Honorable Phillip D. Gaujot, Judge, Civil Action No. 19-AA-3

Patrick Morrisey, Esq., Attorney General, Elaine L. Skorich, Esq., Assistant Attorney General, Charleston, West Virginia, Counsel for the Petitioner

Charles C. Wise III, Esq., Jordan C. Maddy, Esq., Bowles Rice LLP, Morgantown, West Virginia, Counsel for the Respondent

WOOTON, Justice:

The petitioner Everett J. Frazier, Commissioner of the West Virginia Division of Motor Vehicles ("DMV"), appeals the final order of the Circuit Court of Monongalia County, West Virginia, which reversed the final order of the Office of Administrative Hearings ("OAH") entered on March 1, 2022, upholding the respondent Jad H. Ramadan’s administrative driver’s license revocation for a period of five years for driving under the influence ("DUI"). On appeal, the DMV argues that the court: 1) erred as a matter of law by extending the presumptions contained in West Virginia Code section 17C-5-8(b)(1) (2021), a statute which applies solely to impairment by alcohol, to impairment by controlled substances and/or drugs;¹ 2) abused its discretion by substituting its judgment for that of the fact finder below (the OAH) regarding the weight given to the results of the standardized field sobriety tests; and 3) abused its discretion by substituting its judgment for that of the fact finder below (the OAH) regarding the credibility of the respondent’s expert witness. Based upon our review of the parties’ briefs and oral arguments, the applicable law, the appendix record, and all other matters submitted before the Court, we find the court erred in substituting its judgment for that of the OAH in regard to the weight given to the field sobriety tests and the credibility of the respondent’s expert. Accordingly, we reverse the court’s decision and remand this case to the court for entry of an order reinstating the OAH’s order upholding the administrative revocation of the respondent’s driver’s license.

I. Facts and Procedural Background

On July 9, 2015, during a heavy rainstorm, the respondent was driving his vehicle in Morgantown, West Virginia, when he collided with the rear end of the vehicle in front of him. Detective John Wilhelm, an off-duty sheriff’s deputy with the Monongalia County Sheriffs Department, testified at the OAH hearing that he was travelling home when he came upon the accident and stopped his vehicle behind the two vehicles involved in the crash. He was the first law-enforcement officer to arrive on the scene of the accident and observed the respondent staggering. The detective asked the respondent to lean on the detective’s car so that the respondent wouldn’t fall. Det. Wilhelm testified that he spoke with the respondent and noted that the respondent’s speech was slurred. The detective also stated that he noticed the respondent had mud on his clothing; the respondent told him that he had fallen down a couple of times. The detective testified that he believed that the respondent was impaired.

Two West Virginia State Police officers responded to the accident scene – then-Trooper C.M. Griffith, who was the investigating officer, and Senior Trooper S.W. Scholobohm, who was the assisting officer. Both state troopers testified at the OAH hearing that the respondent had difficulty standing, his speech was slurred and incoherent, his eyes were droopy, and his pupils were dilated. According to Trooper Griffith, the respondent told her that he had taken Suboxone that had been prescribed for him the prior evening and "he kept saying something about having taken Ambien and Xanax[.]"²

Due to heavy rain at the time of the accident, the respondent was transported to a nearby bank drive-through that was covered by a roof so that field sobriety tests could be administered. Trooper Griffith testified that she observed as Trooper Scholobohm administered the field sobriety tests, which included the horizontal gaze nystagmus test ("HGN test"), the walk-and-turn test, and the one-leg stand test. The respondent failed each test. Based on the troopers’ observations and the results of the field sobriety tests, the respondent was asked to (and did) submit to a preliminary breath test. Trooper Scholobohm testified that the result of that test was a 0.00% blood alcohol concentration. The trooper stated that the respondent was placed under arrest for DUI and transported to Ruby Memorial Hospital so that a blood test could be performed.³

After the respondent’s blood test was complete, he was transported to the West Virginia State Police Barracks for processing and a secondary chemical breath test was conducted. The results of this test also indicated that the respondent had a 0.00% blood alcohol concentration.

Mr. Ramadan testified that on July 9, 2015 - the night of the accident – he was "in a state of panic getting pulled over again," he had not been sleeping well, he suffered from a lot of anxiety, and he had trouble focusing. He denied that he was impaired due to controlled substances but admitted to taking prescribed Suboxone the night before the accident.⁴ Also, he acknowledged that he had a DUI on June 8, 2015,⁵ one month prior to the accident.⁶

[1] Rodney Richmond, who had a degree in pharmacy and served as Director of the Center for Drug Information at Harding University in Arkansas, testified as an expert witness on the respondent’s behalf.⁷ Mr. Richmond testified that there were no positive findings with respect to any drugs or controlled substances that were tested from the toxicology report. Further, although he stated, inter alia, that Suboxone did not cause nystagmus, he agreed that this drug was not in the panel of drugs which were subject to the test.

The OAH found that

[w]hile [the respondent] denied having ingested any alprazolam or zolpidem and sought to attribute manifestations of impairment he exhibited to insomnia, anxiety, lack of focus, racing thoughts, irritability, stress, fatigue, nervousness, and confusion, it is most difficult under any line of reasoning to accept the assertion that the myriad of indicia of impairment the Petitioner exhibited contemporaneous with the motor vehicle accident were completely unrelated to ingestion of controlled substances and/or drugs.

The OAH also summarized what it found to be the relevant portions of Mr. Richmond’s testimony; however, it gave little weight to the testimony,⁸ finding:

Mr. Richmond’s

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