Reed v. Grillot

PAT REED, COMMISSIONER OF THEWEST VIRGINIA DIVISION OF MOTOR VEHICLES, Respondent Below, Petitioner v. DOREEN GRILLOT, Petitioner Below, Respondent.

No. 17-0691

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

March 4, 2019

(Boone County No. 16-AA-1)

MEMORANDUM DECISION

The petitioner herein and respondent below, Pat Reed, Commissioner of the West Virginia Division of Motor Vehicles ("the Commissioner"), by counsel Attorney General Patrick Morrissey and Assistant Attorney General Janet E. James, appeals from an order entered July 7, 2017, by the Circuit Court of Boone County. By that order, the circuit court reversed the order of the Office of Administrative Hearings ("OAH") issued November 4, 2016; found that the respondent herein and petitioner below, Doreen Grillot ("Ms. Grillot"), by counsel Matthew M. Hatfield, had not driven a motor vehicle while under the influence of alcohol ("DUI"); and reinstated her driver's license. On appeal, the Commissioner assigns error to the circuit court's rulings.

Upon consideration of the parties' briefs, oral arguments, and the appendix record, this Court concludes that the circuit court erred in reversing the order of the OAH because the record evidence is sufficient to support a finding that Ms. Grillot drove a motor vehicle while under the influence of alcohol which warranted the administrative revocation of her driver's license. Accordingly, we reverse the July 7, 2017 order of the Circuit Court of Boone County and remand this case to the circuit court for entry of an order reinstating the Commissioner's order of revocation. Because this case does not present a new or significant issue of law, and for the reasons set forth herein, we find this case satisfies the "limited circumstances" requirement of Rule 21(d) of the West Virginia Rules of Appellate Procedure and is proper for disposition as a memorandum decision.

The facts of the instant proceeding are mostly disputed by the parties. At approximately 1:54 a.m. on March 10, 2012, Officer L.W. Holeston, of the Madison, West Virginia, Police Department,¹ was driving his patrol car in Madison and reportedly saw Ms. Grillot driving in the opposite direction, straddling the center line, weaving, swerving into Officer Holeston's lane of traffic, using the brakes frequently, and traveling at a slow rate of speed. According to Ms. Grillot, Officer Holeston was traveling behind her vehicle and, due to the bright lights on his car, she pulled into a restaurant parking lot; Officer Holeston pulled into the parking lot behind her and turned on his car's blue lights. Pursuant to Officer Holeston, he turned on his car's blue lights and stopped Ms. Grillot at the same restaurant parking lot she referenced.

Officer Holeston reported that, when he approached Ms. Grillot's vehicle, he smelled alcohol and observed wine in the car. He further stated that Ms. Grillot was unsteady while exiting her vehicle, walking, and standing; she had slurred speech; and her eyes were red and glassy. Officer Holeston claims that Ms. Grillot said that she had drunk a beer; Ms. Grillot denies making this statement and claims, instead, that she had not been drinking alcohol prior to this encounter with Officer Holeston.

Thereafter, Officer Holeston administered three field sobriety tests to Ms. Grillot. The horizontal gaze nystagmus ("HGN") test checks eye movement. On the D.U.I. Information Sheet, upon which Officer Holeston recorded his encounter with Ms. Grillot, Officer Holeston indicated that Ms. Grillot had a resting nystagmus, which, if accurate, would have negated the HGN test. Just prior to the OAH hearing, however, Officer Holeston claimed that such notation was in error. Testimony provided by Officer Holeston regarding the degree calculations for this test also calls the accuracy of these test results into question.

Next, Officer Holeston requested Ms. Grillot to complete the walk and turn test; the D.U.I. Information Sheet indicates that she missed the heel-to-toe part of the test. Finally, Officer Holeston administered the one leg stand test, reporting that Ms. Grillot completed this test on one leg while swaying and putting her foot down on the other leg.

Officer Holeston then attempted to administer a preliminary breath test, but Ms. Grillot provided an insufficient sample. After transporting Ms. Grillot to the police station, Officer Holeston reported that he gave her a secondary chemical test of her breath, and that she also blew an insufficient sample for this test. Thereafter, Officer Holeston noted that he offered Ms. Grillot an additional secondary chemical test, which she refused. Ms.Grillot, however, disputes this claim and asserts that she requested a secondary blood or urine test, which Officer Holeston refused to provide.

In Ms. Grillot's corresponding criminal proceeding following her arrest for DUI, Ms. Grillot's attorney allegedly requested the video of the traffic stop from Officer Holeston's patrol car's video recording system. It is unclear whether the system in Officer Holeston's car actually recorded Officer Holeston's traffic stop of Ms. Grillot and his administration of the three field sobriety tests because no such video could be located. Various testimony suggests that the subject video was created and either was lost or that the Madison Police Department failed to preserve it.

Officer Holeston completed and submitted a D.U.I. Information Sheet alleging that Ms. Grillot had operated a motor vehicle while under the influence of alcohol, and, on April 6, 2012, the Commissioner of the Division of Motor Vehicles entered an Order of Revocation revoking Ms. Grillot's driver's license based on such allegations. Ms. Grillot appealed the Commissioner's order, which stayed her license revocation, and the OAH held an evidentiary hearing on the matter. By order entered November 4, 2016, the OAH affirmed the Commissioner's Order of Revocation, ruling that Ms. Grillot had driven a motor vehicle while under the influence of alcohol. Ms. Grillot then appealed the OAH's order to the Circuit Court of Boone County. By order entered July 7, 2017, the circuit court reversed the OAH's order, ruling that the OAH had not fully considered all of the evidence presented in the case. It is from this adverse ruling that the Commissioner now appeals to this Court.

The instant proceeding is before the Court on appeal from a circuit court order that reversed a decision of the OAH. We previously have held that,

[o]n 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 this regard, the Court's review is prescribed by the governing statutory law. Thus,

[u]pon judicial review of a contested case under the West Virginia Administrative Procedure[s] 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 modifythe 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). Accord W. Va. Code § 29A-5-4(g). Moreover, with specific regard to the posture of the case sub judice, we have held that

"[i]n cases where the circuit court has [reversed] 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, Muscatell v. Cline, 196 W. Va. 588, 474 S.E.2d 518 (1996).

Syl. pt. 2, Reed v. Hall, 235 W. Va. 322, 773 S.E.2d 666 (2015).

On appeal to this Court, the Commissioner first raises the issue of whether the investigating officer had reasonable suspicion to stop Ms. Grillot's vehicle. The circuit court, however, did not find that Officer Holeston improperly stopped Ms. Grillot's car or render any rulings in this regard. Neither has Ms. Grillot responded to this assignment of error. Insofar as this query does not implicate the circuit court's jurisdiction to hear Ms. Grillot's appeal from the OAH, and given that the circuit court has not considered or decided this issue, this particular question is not properly before us. See Syl. pt. 4, State ex rel. State Line Sparkler of WV, Ltd. v. Teach, 187 W. Va. 271, 418 S.E.2d 585 (1992) ("'"This Court will not pass on a nonjurisdictional question which has not been decided by the trial court in the first instance." Syllabus Point 2, Sands v. Security Trust Co., 143 W. Va. 522, 102 S.E.2d 733 (1958).' Syllabus Point 2, Duquesne Light Co. v. State Tax Department, 174 W. Va. 506, 327 S.E.2d 683 (1984), cert. denied, 471 U.S. 1029, 105 S. Ct. 2040, 85 L. Ed. 2d 322 (1985)."). See also Tri-State Petroleum Corp. v. Coyne, 240 W. Va. 542, 557 n.37, 814 S.E.2d 205, 220 n.37 (2018) ("'Our general rule in this regard is that, when nonjurisdictional questions have not been decided at the trial court level andare then first raised before this Court, they will not be...