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Reed v. Zipf

Supreme Court of West Virginia

October 12, 2017

PATRICIA S. REED, Commissioner, Division of Motor Vehicles, Petitioner
v.
GEORGE ZIPF, Respondent

          Submitted: October 4, 2017

         Appeal from the Circuit Court of Kanawha County The Honorable Jennifer F. Bailey, Judge Civil Action No. 14-AA-113

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

          William O. Merriman, Jr., Esq. Parkersburg, West Virginia Counsel for the Respondent

          OPINION

          KETCHUM JUSTICE

         SYLLABUS BY THE COURT

         1. "A person who wishes to challenge official compliance with and adherence to sobriety checkpoint operational guidelines shall give written notice of that intent to the commissioner of motor vehicles prior to the administrative revocation hearing which is conducted pursuant to W.Va.Code § 17C-5A-2." Carte v. Cline, 194 W.Va. 233, 460 S.E.2d 48 (1995).

         2. "In an administrative hearing conducted by the Division of Motor Vehicles, a statement of an arresting officer, as described in W.Va. Code § 17C-5A-1(b) (2004) (Repl.Vol.2004), that is in the possession of the Division and is offered into evidence on behalf of the Division, is admissible pursuant to W.Va. Code § 29 A-5-2(b) (1964) (Repl.Vol.2002)." Crouch v. W.Va. Div. of Motor Vehicles, 219 W.Va. 70, 631 S.E.2d 628 (2006).

         Justice Ketchum:

         George Zipf was arrested at a sobriety checkpoint for driving under the influence of alcohol. Based on his arrest, the Department of Motor Vehicles [DMV] revoked his driver's license. Mr. Zipf objected to his driver's license revocation, and he requested a hearing before the Office of Administrative Hearings [OAH].

         The OAH rescinded Mr. Zipf's driver's license revocation because it found insufficient evidence that his DUI arrest was lawful. After the DMV petitioned the circuit court for an appeal, the circuit court upheld the OAH's order.

         We find that the circuit court erred in upholding the OAH's order because there was sufficient evidence that Mr. Zipf's DUI arrest was lawful. Therefore, we reverse the circuit court and remand this case to the circuit court for reinstatement of the DMV's order revoking Mr. Zipf's driver's license.

         I.

         FACTUAL AND PROCEDURAL BACKGROUND

         On July 28, 2012, Mr. Zipf was stopped at a sobriety checkpoint conducted by the Vienna Police Department. According to Mr. Zipf's DUI Information Sheet, the officer who stopped him, Officer D.W. Lindsey, observed an odor of an alcoholic beverage and that Mr. Zipf's speech was slurred. Mr. Zipf was directed to exit his vehicle and walk to a separate area designated for field sobriety testing, which was conducted by another officer, J.A. Cole.

         Officer Cole administered a series of field sobriety tests and a preliminary breath test on Mr. Zipf. After Mr. Zipf failed all of these tests, Officer Cole arrested him for DUI and transported him to the Vienna Police Department. At the police department, Mr. Zipf failed a breath test administered to him almost two hours after he was stopped at the checkpoint.

         Based on his arrest, the DMV revoked Mr. Zipf's driver's license. He objected to the revocation and requested a hearing before the OAH. On his hearing request form, he marked that he wished to challenge the "Secondary chemical test of the blood, breath, or urine" and the "Sobriety checkpoint operational guidelines."

         Two members of the Vienna Police Department testified at Mr. Zipf's OAH hearing: Sergeant K.L. Parrish, who supervised the sobriety checkpoint; and Officer Cole, who conducted the field sobriety tests on Mr. Zipf and arrested him. Officer Lindsey, who stopped Mr. Zipf at the sobriety checkpoint, was absent from the OAH hearing.

         Sergeant Parrish testified as to the manner in which the Vienna Police Department conducted the sobriety checkpoint. For example, the location of the checkpoint was selected on the basis of traffic volume, accident data, alcohol-related arrests, and visibility to drivers and officers. Sergeant Parrish stated that the Vienna Police Department erected signs notifying drivers of the checkpoint, and if a driver did not wish to proceed through the checkpoint, he or she had opportunities to turn around and avoid the checkpoint without being pursued by an officer. As to drivers who proceeded through the checkpoint, officers were directed to stop every car to ...


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