West v. Frazier

1

Chadwick West, Petitioner Below, Petitioner v. Everett Frazier, Commissioner,West Virginia Division of Motor Vehicles, Respondent Below, Respondent

No. 22-0017

Supreme Court of Appeals of West Virginia

September 15, 2023

Kanawha County 21-AA-40

MEMORANDUM DECISION

Petitioner Chadwick West appeals the order of the Circuit Court of Kanawha County, entered on December 13, 2021, denying his petition for judicial review and affirming the decision of the Office of Administrative Hearings ("OAH"). The OAH decision upheld the administrative revocation of petitioner's driver's license and the disqualification of his commercial driver's license. Everett Frazier, Commissioner, West Virginia Division of Motor Vehicles ("DMV"), responds in support of the order.^[1] Upon our review, we determine that oral argument is unnecessary and that a memorandum decision affirming the circuit court's order is appropriate. See W.Va. R. App. P. 21.

On the morning of February 23, 2020, police found petitioner standing beside his vehicle, which was stuck in a roadside ditch. No one observed petitioner operating the vehicle. The investigating officer testified that he smelled alcohol on petitioner's breath, petitioner's eyes were bloodshot and glassy, and petitioner had slurred speech. He stated petitioner was unsteady and staggered while walking and swayed while standing. There were open beer bottles inside the vehicle. Three of the four field sobriety tests performed indicated impairment and petitioner was arrested for driving under the influence of alcohol ("DUI").^[2] After arrest and transport to the police detachment, the Intoximeter test was administered. It indicated petitioner had a blood alcohol concentration ("BAC") of .204%. The investigating officer questioned petitioner and reported that petitioner told him that he had consumed one or two beers at a bar and had not had alcoholic beverages after the truck went in the ditch. Petitioner later advised the investigating officer that he had seven beers between ten p.m. and three a.m., but none after the accident occurred. Further petitioner stated to the investigating officer that he did not believe he drove under the influence of alcohol or was under the influence of alcohol when the vehicle went off the road.

The investigating officer provided documentation to the DMV and an administrative order of revocation of petitioner's driver's license, along with a notice of disqualification of petitioner's commercial driver's license, were issued, effective April 9, 2020. Petitioner requested an administrative hearing and the OAH conducted that hearing on September 11, 2020, wherein the investigating officer and the petitioner testified. The investigating officer's testimony was generally consistent with the documents provided to the DMV. Petitioner testified that he only had one to two beers at a bar and that as he was going home, an oncoming car caused him to swerve off the road and into a ditch. He was then stuck on the side of the road for the remainder of the night without phone service. Although he was only four to five miles from his home, it was cold and dark and so he stayed with his vehicle. He testified that he drank several beers after his vehicle went off the road and he did not believe that he was impaired while driving. Petitioner argues his high BAC level and the empty beer bottles in his vehicle are evidence that he drank alcohol after he stopped driving.

On June 3, 2021, the OAH entered an order affirming the DMV's order of revocation and notice of disqualification. The decision was drafted by a different hearing examiner than the one who heard the evidence. The OAH then discussed the conflict between petitioner's statements to the investigating officer and his testimony on the cause of the vehicle going into the ditch. The OAH found evidence of the consumption of alcohol by petitioner based on petitioner being the driver of the truck when it ran off the roadway the odor of alcohol on his breath, bloodshot eyes, slurred speech, loss of coordination; his admission that he consumed alcoholic beverages earlier but none after his truck went in the ditch; his poor performance on field sobriety tests; and the presence of several open beer bottles in the truck. It found that the secondary chemical test administered to petitioner showed a BAC of .204%. The OAH concluded that, reviewing the entire record of the case, the evidence was sufficient to support the DMV's administrative revocation order and disqualification notice based on driving under the influence of alcohol with a BAC of .15% or more by weight. The OAH further determined that the BAC of .204% by weight is prima facie evidence that petitioner was under the influence of alcohol and upheld the revocation and disqualification based on an alcohol concentration of .15% or more.

On July 2, 2021, petitioner filed his petition for judicial review with the Circuit Court of Kanawha County. The circuit court upheld the decision of the OAH, finding a sufficient factual predicate in the record before the OAH and that a totality of the evidence demonstrated a reasonable basis for the decision.

Petitioner appeals this order, asserting that the evidence in the record does not support the conclusion that the OAH final order should be upheld. He specifically references the fact there is no testimony that he was operating his vehicle while under the influence of alcohol; that it was error to give the investigating officer's testimony more weight than petitioner's testimony; and that the preponderance of the evidence showed that he consumed beers causing the intoxication after the accident, including his BAC level. Respondent, on the other hand, contends that any analysis of BAC level requires expert testimony, that petitioner's testimony was contradictory to his statements to the investigating officer at the time of the arrest, and that the credibility determination of the factfinder deserves deference. Respondent also argues that this appeal is moot.^[3] This Court reviews the order in this appeal under the following standard:

"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). Syl. Pt. 1, Dale v. Odum, 233 W.Va. 601, 760 S.E.2d 415 (2014).

Syl. Pt. 1, Frazier v. Talbert, 245 W.Va. 293, 858 S.E.2d 918 (2021). We have also held:

Under this standard, if the circuit court's account of the evidence is plausible in light of the record viewed in its entirety, we may not reverse it, even though convinced that had we been sitting as the trier of fact, we would have weighed the evidence differently. We will disturb only those factual findings that strike us wrong with the "force of a five-week-old, unrefrigerated dead fish." United States v. Markling, 7 F.3d 1309, 1319 (7th Cir.1993), cert. denied, 514 U.S. 1010, 115 S.Ct. 1327, 131 L.Ed.2d 206 (1995).

Brown v. Gobble, 196 W.Va. 559, 563, 474 S.E.2d 489, 493 (1996).

We agree with the circuit court that the...