PATRICIA S. REED, Commissioner, Division of Motor Vehicles, Petitioner
GEORGE ZIPF, Respondent
Submitted: October 4, 2017
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
BY THE COURT
"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).
"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).
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
rescinded Mr.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.
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
AND PROCEDURAL BACKGROUND
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.
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
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."
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.
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 ...