Frazier v. Talbert

858 S.E.2d 918

Everett FRAZIER, Commissioner of the West Virginia Division of Motor Vehicles, Petitioner

v.Nathan TALBERT, Respondent

No. 20-0134

Supreme Court of Appeals of West Virginia.

Submitted: April 20, 2021

Filed: June 15, 2021

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

Gregory W. Sproles, Esq., Gregory W. Sproles, PLLC, Summersville, West Virginia, Counsel for Respondent.

HUTCHISON, Justice:

Petitioner Everett Frazier, Commissioner of the West Virginia Division of Motor Vehicles ("the Commissioner" or "DMV"), seeks the reinstatement of an order revoking the driving privileges of Respondent Nathan Talbert for driving a motor vehicle while under the influence of alcohol, controlled substances and/or drugs with a blood alcohol content of .15 or higher ("aggravated DUI"). By order entered on January 21, 2021, the Circuit Court of Kanawha County, West Virginia, affirmed the decision of the Office of Administrative Hearings ("OAH") reversing the revocation order on the ground that the investigating officer's refusal to grant respondent's requests for a blood test following his arrest violated respondent's statutory and due process rights and that prior decisions issued by this Court required that the revocation be reversed.

Upon careful consideration of the parties’ briefs and oral arguments, the appendix record, and the pertinent legal authority, and for the reasons set forth below, we reverse the circuit court's order and remand this matter for further proceedings.

I. Factual and Procedural Background

On January 20, 2015, Deputy John Ellison of the Nicholas County Sheriff's Department was on patrol in Summersville, West Virginia. At approximately 12:59 a.m., he observed a black GMC Sierra go off the right side of the roadway on Broad Street. As he continued to follow the vehicle onto Route 19, Deputy Ellison observed it cross the white line, go off the roadway several times, and "at Salmon Run, you have a turning lane to go onto Airport Road. I observed the vehicle while negotiating that turn to go into the turn lane and then come back onto Route 19." Deputy Ellison then conducted a stop of the vehicle, which was being driven by respondent.¹

Deputy Ellison approached the driver's side of the vehicle and began speaking with respondent. Deputy Ellison noticed a strong odor of alcoholic beverage emitting from the vehicle and, when he asked respondent if he had been drinking, respondent answered that he had had "a few."²

Deputy Ellison then asked respondent to exit the vehicle. According to the D.U.I. Information Sheet, respondent exited his vehicle normally, walked to the roadside normally, but was unsteady while standing. Respondent's speech and attitude were noted as "good." His eyes were noted as "blood shot, glassy."

Deputy Ellison explained and administered three field sobriety tests, each of which respondent failed. Prior to administering the horizontal gaze nystagmus test, Deputy Ellison conducted a medical assessment of respondent's eyes, which indicated equal pupils, no resting nystagmus, and equal tracking in both eyes. During the test, respondent exhibited lack of smooth pursuit, distinct and sustained nystagmus, and the onset of nystagmus prior to an angle of 45 degrees in both eyes.

Deputy Ellison also demonstrated the walk-and-turn test. The D.U.I. Information Sheet noted that respondent "cannot keep balance," "steps off line," "misses heel-to-toe"; and "raises arms to balance." Finally, with regard to the one-leg-stand test, respondent swatted while balancing, used his arms to balance, and put his foot down.

Deputy Ellison, who was trained and certified to administer the preliminary breath test ("PBT") using the Alco-Sensor FST, administered the test to respondent at 1:19 a.m., after first observing him for at least fifteen minutes to ensure that he did not smoke or consume alcoholic beverages. The result of the PBT indicated that respondent had a breath alcohol concentration of .205%.

Having reasonable grounds to believe that respondent was driving under the influence of alcohol, Deputy Ellison arrested respondent and transported him to the Nicholas County Sheriff's Department for processing and to administer the designated secondary chemical test ("SCT") of the breath. Deputy Ellison was trained at the West Virginia State Police Academy to operate the Intoximeter EC/IR-II and was certified to administer the SCT. Deputy Ellison read to respondent the West Virginia Implied Consent Statement, which respondent then signed at 1:55 a.m. Deputy Ellison completed the Breath Test Operational Checklist and, at 2:36 a.m., respondent gave a breath sample. Respondent's blood alcohol concentration ("BAC") was recorded as .159%.

On July 2, 2015, the DMV sent respondent an Order of Revocation for operating a motor vehicle while under the influence of alcohol while having a BAC of ".15 or higher."³

Respondent thereafter timely submitted the Written Objection and Hearing Request Form on which he indicated that he wished to challenge his "stop and arrest and the basis for such stop and/or arrest." He also checked the box indicating that he "wish[ed] to challenge the results of the secondary chemical test of the blood, breath or urine."

An administrative hearing was conducted before the OAH on February 25, 2016. In addition to all of the foregoing, video evidence taken at the sheriff's department from the night of the arrest showed that respondent asked Deputy Ellison three times for a blood test. See W. Va. Code § 17C-5-9 [2013]. At the hearing, Deputy Ellison testified that he explained to respondent that blood tests are only to be conducted in cases where a driver has been accused of driving under the influence of controlled substances (rather than alcohol).

On cross-examination, Deputy Ellison confirmed that the video showed that respondent asked "coherent," "appropriate," and "very specific" questions; "carr[ied] on a coherent conversation" with Deputy Ellison; was "totally cooperative"; answered Deputy Ellison's "questions regarding direction of travel, date, day of the week, and time all accurately"; and denied that he was under the influence of alcohol, controlled substances, or drugs. Deputy Ellison further admitted that, earlier in his testimony, he failed to recount that, when he initially observed respondent's vehicle swerving on Broad Street, that respondent pulled off the roadway and Deputy Ellison passed him. Respondent's counsel further pointed out on cross-examination of Deputy Ellison that the video showed that respondent, who was wearing sandals, walked with a limp, but that Deputy Ellison never inquired of respondent why he walked with a limp. Similarly, Deputy Ellison was asked why his medical assessment relative to respondent's eyes on the D.U.I. Information Sheet failed to include a notation that respondent has a "lazy eye" but, instead, noted that his eyes had equal pupils, denied resting nystagmus, and had equal tracking. Finally, Deputy Ellison confirmed that, during his D.U.I. training at the West Virginia State Police Academy, he was never informed that, under West Virginia law, a driver arrested for driving while under the influence of alcohol is entitled to a blood test if he or she requests one.

Respondent also testified at the administrative hearing. He denied that, at the time of his arrest, he was driving while under the influence of alcohol. He testified that he has always had a "lazy eye," and that he was shot in the left leg nineteen years earlier, causing him to "los[e] two arteries in my leg and muscle," to walk with a limp, and to be unable to stand on the left leg and "try to put a foot up" without losing his balance. Respondent also refuted Deputy Ellison's testimony that he (Ellison) properly conducted the resting nystagmus test, stating that he moved the pen back and forth "fairly quickly." Respondent further testified that Deputy Ellison failed to demonstrate the walk-and-turn test but affirmed that, nonetheless, he (respondent) "walk[ed] the number of steps [Deputy Ellison] told [him] to walk"; that he touched heel to toe; and that he did not use his arms for balance. Respondent further testified that, "[w]ithin a minute" before he blew into the Alco-Sensor FST, he had spit out "Copenhagen" (i.e., tobacco).

In a Final Order entered on August 5, 2019, the OAH reversed the order revoking respondent's driving privileges for the offense of DUI with an alcohol concentration level of .15% or more. The OAH found that Deputy Ellison observed respondent "weaving, almost striking an object or vehicle, driving with tires on the center line marker and swerving on Route 19," and that respondent's vehicle was lawfully stopped. The OAH further found that respondent was lawfully arrested for DUI based upon "[t]he odor of an alcoholic beverage emitting from [respondent's] breath along with the visible signs of impairment and the inability to adequately perform field sobriety tests, including the preliminary breath test. Plus the admission by [respondent] that he drank a few at a bar."⁴

However, the OAH concluded that West Virginia Code § 17C-5-9 affords an individual arrested for D.U.I. " ‘a right to demand and receive a blood test within two hours of arrest,’ Syllabus [P]oint 1, [in part,] State v. York , 175 W. Va. 740, 338 S.E.2d 219 (1985) [,]" and that, "when an individual arrested for [DUI] requests an independent blood test, the arresting law-enforcement entity is required to provide the individual with an opportunity to have a blood test." See Syl. Pt. 2, In re Burks , 206 W. Va. 429, 525 S.E.2d 310 (1999). Finally, relying on Reed v. Hall⁵ and Reed v. Divita ,⁶ the OAH determined that Deputy Ellison's failure to comply with respondent's demand for a blood test violated respondent's due process rights under West Virginia Code § 17C-5-9 and was grounds for reversal of...