PATRICIA S. REED, COMMISSIONER, WEST VIRGINIA DIVISION OF MOTOR VEHICLES, Respondent Below, Petitioner
JOSEPH D. POMPEO, Petitioner Below, Respondent
Submitted: January 10, 2018
from the Circuit Court of Ohio County The Honorable David J.
Sims, Judge Civil Action No. 16-C-158
Patrick Morrisey, Esq. Attorney General Janet E. James, Esq.
Assistant Attorney General Charleston, West Virginia Counsel
for the Petitioner.
G. McCoid, Esq. McCamic, Sacco & McCoid, P.L.L.C.
Wheeling, West Virginia Counsel for the Respondent.
BY THE COURT
"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." Syllabus Point 1, Muscatell v. Cline,
196 W.Va. 588');">196 W.Va. 588, 474 S.E.2d 518 (1996).
"In 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." Syllabus Point 2, Muscatell v.
Cline, 196 W.Va. 588');">196 W.Va. 588, 474 S.E.2d 518 (1996).
"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.'" Syllabus Point 2, Shepherdstown
Volunteer Fire Dep't v. State ex rel. State of W.Va.
Human Rights Comm'n, 172 W.Va. 627');">172 W.Va. 627, 309 S.E.2d 342
"Police officers may stop a vehicle to investigate if
they have an articulable reasonable suspicion that the
vehicle is subject to seizure or a person in the vehicle has
committed, is committing, or is about to commit a crime. To
the extent State v. Meadows, 170 W.Va. 191, 292
S.E.2d 50 (1982), holds otherwise, it is overruled."
Syllabus Point 1, State v. Stuart, 192 W.Va. 428');">192 W.Va. 428,
452 S.E.2d 886 (1994).
"When evaluating whether or not particular facts
establish reasonable suspicion, one must examine the totality
of the circumstances, which includes both the quantity and
quality of the information known by the police."
Syllabus Point 2, State v. Stuart, 192 W.Va. 428');">192 W.Va. 428,
452 S.E.2d 886 (1994).
"Upon a challenge by the driver of a motor vehicle to
the admission in evidence of the results of the horizontal
gaze nystagmus test, the police officer who administered the
test, if asked, should be prepared to give testimony
concerning whether he or she was properly trained in
conducting the test, and assessing the results, in accordance
with the protocol sanctioned by the National Highway Traffic
Safety Administration and whether, and in what manner, he or
she complied with the training in administering the test to
the driver." Syllabus Point 2, White v. Miller,
228 W.Va. 797');">228 W.Va. 797, 724 S.E.2d 768 (2012).
"A person's driver's license may be suspended
under W.Va. Code, 17C-5-7(a)  for refusal to take a
designated breathalyzer test." Syllabus Point 2,
Moczek v. Bechtold, 178 W.Va. 553');">178 W.Va. 553, 363 S.E.2d 238
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.
FACTUAL AND PROCEDURAL BACKGROUND
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
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.
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
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.
the walk-and-turn test, Corporal Prager documented that he
observed Mr. Pompeo step off the line of walk, miss
heel-to-toe,  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
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.
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.
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.
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
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.
STANDARD OF REVIEW
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
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." With these standards in mind, we
consider the parties' arguments.