Reed v. Pompeo

810 S.E.2d 66

Patricia S. REED, Commissioner, West Virginia Division of Motor Vehicles, Respondent Below, Petitioner

v.Joseph D. POMPEO, Petitioner Below, Respondent

No. 17-0175

Supreme Court of Appeals of West Virginia.

Submitted: January 10, 2018

Filed: February 8, 2018

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

Robert G. McCoid, Esq., McCamic, Sacco & McCoid, P.L.L.C., Wheeling, West Virginia, Counsel for the Respondent

WALKER, Justice:

Joseph D. Pompeo's driver's license was revoked as a result of a traffic stop by Wheeling police officers. The officers observed that Mr. Pompeo appeared to be under the influence of alcohol and performed three field sobriety tests, all of which Mr. Pompeo failed, and a preliminary breath test, which he refused. After his arrest, he claimed that he was unable to perform a secondary chemical test as a result of an undisclosed breathing condition. Mr. Pompeo unsuccessfully challenged the revocation of his license with the Office of Administrative Hearings (OAH) and then appealed to the Circuit Court of Ohio County. The circuit court ordered that Mr. Pompeo's driving privileges be restored on the grounds that (1) the officers lacked reasonable grounds to extend the time of the traffic stop; (2) there was no probable cause to arrest Mr. Pompeo; and (3) Mr. Pompeo's failure to submit to the secondary chemical test was not a refusal sufficient for revocation. We find the OAH's findings were not clearly wrong and that the circuit court erroneously disregarded the evidence upon which the OAH relied and abused its discretion in substituting its judgment for that of the fact finder below. We reverse and remand for reinstatement of the administrative order revoking Mr. Pompeo's driver's license.

I. FACTUAL AND PROCEDURAL BACKGROUND

On August 4, 2010, Corporal K. Prager and Officer Ezekial Goddard of the Wheeling Police Department were on routine road patrol when they observed Mr. Pompeo operating a motor vehicle with a burned-out headlight. The officers initiated a traffic stop only to inform the driver, Mr. Pompeo, of the faulty equipment; at that point, they observed nothing indicative of impairment. Officer Goddard asked Mr. Pompeo for his driver's license, registration, and proof of insurance.

Upon interacting with Mr. Pompeo, the officers immediately observed signs of impairment. Though Mr. Pompeo readily provided his registration and proof of insurance, he avoided making eye contact and only produced his driver's license after being prompted twice. Though Officer Goddard testified that Mr. Pompeo's speech was normal, he also testified that he smelled alcohol on Mr. Pompeo's breath.

Corporal Prager then approached the vehicle and, like Officer Goddard, detected alcohol on Mr. Pompeo's breath and further noted that his eyes appeared bloodshot. Mr. Pompeo admitted to both Officer Goddard and Corporal Prager that he had been drinking before operating the motor vehicle. Based on their observations and Mr. Pompeo's admission, Corporal Prager had reason to believe Mr. Pompeo was driving under the influence of alcohol and asked Mr. Pompeo to exit the vehicle.

Corporal Prager administered three field sobriety tests—the horizontal gaze nystagmus (HGN), the walk-and-turn, and the one-leg stand—and attempted to administer a preliminary breath test to Mr. Pompeo. As to the HGN test, Corporal Prager documented on the DUI Information Sheet that he observed lack of smooth pursuit and distinct and sustained nystagmus at maximum deviation in both eyes. At the subsequent administrative hearing, however, the OAH found that Corporal Prager did not administer the HGN in strict compliance with the National Highway Traffic Safety Administration (NHTSA) guidelines and so did not consider the results of that test in this matter.

As to the walk-and-turn test, Corporal Prager documented that he observed Mr. Pompeo step off the line of walk, miss heel-to-toe,¹ and make an improper turn. Finally, as to the one-leg stand test, Corporal Prager documented that he observed Mr. Pompeo begin the test before being instructed to do so, sway while balancing, and lower his raised foot to the ground twice.

Mr. Pompeo also refused to provide a sufficient sample for the preliminary breath test. After the field sobriety tests were administered (and failed) and the preliminary breath test was administered (and refused), Mr. Pompeo was arrested for driving under the influence (DUI). After arresting Mr. Pompeo, the officers searched his vehicle and observed a "big wet spot on the floor." They also found an empty beer can under the passenger seat.

Mr. Pompeo was transported to the Wheeling Police Department for administration of the secondary chemical test, where he signed the Implied Consent Statement, which specifies the penalties for refusing to submit to a designated secondary chemical test and the fifteen-minute time limit for refusal. Within the fifteen-minute time limit, Corporal Prager provided Mr. Pompeo with three opportunities to take the secondary chemical test. Mr. Pompeo placed his mouth on the tube attached to the secondary chemical test, but Corporal Prager testified that Mr. Pompeo did not make a legitimate effort to provide a sufficient breath sample.

Even after the requisite fifteen minutes elapsed, Corporal Prager gave Mr. Pompeo an additional opportunity to submit to the secondary chemical test, but he again failed to provide a sufficient breath sample. The officers testified that Mr. Pompeo advised them that he suffered from an unidentified breathing problem. Corporal Prager further later testified that, based on his observations, Mr. Pompeo was perfectly capable of providing the necessary sample. Corporal Prager testified that Mr. Pompeo did not appear winded at any time, including while getting out of the cruiser, walking up stairs into the Wheeling Police Department, or walking down a hall into the testing room. As a result, Corporal Prager deemed Mr. Pompeo's actions to be a refusal of the secondary chemical test and submitted a DUI Information Sheet to the DMV.

On August 25, 2010, the DMV revoked Mr. Pompeo's driving privileges for a period of six months and a concurrent period of one year, effective September 29, 2010. Mr. Pompeo timely requested a hearing before the OAH. In its Final Order, the OAH affirmed the revocation of Mr. Pompeo's license for DUI and for refusing to submit to the secondary chemical test.

Mr. Pompeo appealed the OAH's determination in the Circuit Court of Ohio County, which ordered that the OAH's Final Order be vacated and Mr. Pompeo's driving privileges be restored and reinstated. The DMV now appeals the circuit court's order and seeks reinstatement of the OAH's order revoking Mr. Pompeo's license.

II. STANDARD OF REVIEW

We have previously outlined the appropriate standards for our review of a circuit court's order deciding an administrative appeal as follows:

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.²

We have also noted that "[i]n 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 ."³ With these standards in mind, we consider the parties' arguments.

III. DISCUSSION

In order to resolve this matter, we must determine whether the circuit court erred in vacating the OAH's decision to revoke Mr. Pompeo's driving privileges. We have provided clear guidance for courts reviewing an administrative agency's order:

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."⁴

In the event one of these standards is not present, a reviewing court is left with two options: affirm the order of the agency or remand the case for further proceedings.⁵ The circuit court's reversal was premised on two of these standards—"clearly wrong in view of the reliable, probative and substantial evidence on the whole record" and "arbitrary or capricious or characterized by abuse of discretion." Accordingly, we address only those points in our analysis. This Court has also directed that reviewing courts should consider "credibility determinations by the finder of fact in an administrative proceeding [to] [be] 'binding unless patently without basis in the record.' "⁶

Framing our analysis, West Virginia Code § 17C-5A-2(f) requires that the OAH make three predicate findings after considering the evidence in an administrative proceeding. Those findings, in pertinent part, require proof that: (1) the arresting officer had reasonable grounds to believe that the person drove while under the influence of alcohol; (2) the person was lawfully placed under arrest for a...