Cynthia Post, by counsel John E. Gainer, appeals the Circuit
Court of Tyler County's July 10, 2016, order affirming
petitioner's conviction for driving under the influence
of a controlled substance with a minor in the vehicle and
driving left of center. The State of West Virginia, by
counsel Gordon L. Mowen, II, filed its response in support of
the circuit court's order. On appeal, petitioner argues
that there was insufficient evidence to support a finding of
guilt beyond a reasonable doubt.
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21 of the Rules of Appellate Procedure.
of 2015, petitioner was arrested for driving under the
influence of a controlled substance with a minor in the
vehicle and driving left of center. The criminal complaint
alleged that Patrolman Mason Rine observed petitioner almost
striking an oncoming vehicle while driving left of center.
After Ptlm. Rine initiated a traffic stop on petitioner's
vehicle, he noticed that petitioner had glassy eyes and
slurred speech. Petitioner admitted that she had taken
prescription Subutex prior to driving. Thereafter, Ptlm. Rine
conducted a series of field sobriety tests that petitioner
failed. A preliminary breath tested revealed that petitioner
had a blood alcohol content of 0.00%. Ptlm. Rine placed
petitioner under arrest and transported her to Sistersville
General Hospital for a blood draw. Hospital personnel were
unable to successfully draw blood from petitioner. Ptlm. Rine
issued petitioner a citation and released her under her
December of 2015, petitioner appeared before the Magistrate
Court of Tyler County. Following a bench trial, petitioner
was found guilty of driving under the influence with an
unemancipated minor in the vehicle. Thereafter, petitioner filed
a notice of intent to appeal in circuit court.
of 2016, the circuit court held a bench trial during which it
heard testimony from Ptlm. Rine and petitioner. According to
Ptlm. Rine, he observed petitioner almost strike another
vehicle head-on while driving left of center. As a result,
Ptlm Rine conducted a traffic stop and observed that
petitioner was emotional, had glassy eyes, and slurred
speech. Ptlm. Rine also explained that petitioner failed the
horizontal gaze nystagmus, walk-and-turn, and one-legged
stand tests. However, the preliminary breath test indicated
that her blood alcohol content was 0.00%. After voluntarily
consenting to a blood test, Ptlm. Rine transported petitioner
to the Sistersville General Hospital where medical
professionals were unable to collect petitioner's blood.
Subsequently, Ptlm. Rine wrote petitioner a citation for
driving under the influence and driving left of center and
released petitioner to her sister's custody.
petitioner admitted that she consumed Subutex prior to
operating a motor vehicle, she indicated she has taken
Subutex for approximately one year and that it does not cause
her any physical problems. However, she concedes that
dizziness is a known side effect of taking Subutex.
Petitioner also acknowledged that she drove left of center.
According to petitioner, she attributes her slurred speech to
being "an emotional wreck." Similarly, petitioner
contends that she failed the one-legged stand test because
she was "a nervous wreck" and was "very
emotionally and physically . . . exhausted." After
considering the testimony and the parties' arguments, the
circuit court affirmed the Magistrate Court's conviction.
By order entered on July 10, 2016, the circuit court
reimposed the magistrate court's sentence of
incarceration of seventy-two hours and a fine of $200 for her
conviction of driving under the influence of a controlled
substance with a minor in the vehicle. The circuit court also
reimposed the magistrate court's fine of $20 for driving
left of center. This appeal followed.
sole argument on appeal is that there was insufficient
evidence to sustain her conviction for driving under the
influence of a controlled substance with an unemancipated
minor in the vehicle. We disagree.
considering petitioner's appeal, we apply the following
standard of review:
In reviewing challenges to findings and rulings made by a
circuit court, we apply a two-pronged deferential standard of
review. We will review the rulings of the circuit court
concerning a new trial and its conclusion as to the existence
of reversible error under an abuse of discretion standard,
and we review the circuit court's underlying factual
findings under a clearly erroneous standard; questions of law
are subject to a de novo review.
Syl. Pt. 3, State v. Vance, 207 W.Va. 640, 535
S.E.2d 484 (2000). Furthermore, this Court has held that
The function of an appellate court when reviewing the
sufficiency of the evidence to support a criminal conviction
is to examine the evidence admitted at trial to determine
whether such evidence, if believed, is sufficient to convince
a reasonable person of the defendant's guilt beyond a
reasonable doubt. Thus, the relevant inquiry is whether,
after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime proved beyond a reasonable
Syl. Pt. 1, State v. Guthrie, 194 W.Va. 657, 461
S.E.2d 163 (1995).
petitioner's bench trial, the circuit court heard
testimony from Ptlm. Rine and petitioner regarding the
underlying events, including petitioner's reasoning as to
why she failed the field sobriety tests. We have long held
that credibility determinations made following a bench trial
are entitled to great deference. See State v.
Guthrie,194 W.Va. 657, 669 n. 9, 461 S.E.2d 163, 175 n.
9 (1995) ("An appellate court may not decide the
credibility of witnesses . . . as that is the exclusive
function and task of the trier of fact."). West Virginia
Code § 17C-5-2(k) provides that an individual is guilty
of driving under the influence of a controlled substance when
she drives "a vehicle in this state while . . . she is
in an impaired state[.]" An "'impaired
state' means a person is under the influence of any
controlled substance." W.Va. Code § 17C-5-2-(a).
Here, the circuit court heard testimony that petitioner
admitted to taking prescription Subutex prior to operating a
motor vehicle, and that dizziness is a side effect of the
medication. Furthermore, it is undisputed that petitioner
failed the horizontal gaze nystagmus, walk-and-turn, and
one-legged stand tests. Having reviewed the record on appeal,
the parties' arguments, and pertinent authority, we find
that the circuit court properly ...