PAT REED, COMMISSIONER OF THE WEST VIRGINIA DIVISION OF MOTOR VEHICLES, Respondent Below, Petitioner
DOREEN GRILLOT, Petitioner Below, Respondent.
County No. 16-AA-1
petitioner herein and respondent below, Pat Reed,
Commissioner of the West Virginia Division of Motor Vehicles
("the Commissioner"), by counsel Attorney General
Patrick Morrissey and Assistant Attorney General Janet E.
James, appeals from an order entered July 7, 2017, by the
Circuit Court of Boone County. By that order, the circuit
court reversed the order of the Office of Administrative
Hearings ("OAH") issued November 4, 2016; found
that the respondent herein and petitioner below, Doreen
Grillot ("Ms. Grillot"), by counsel Matthew M.
Hatfield, had not driven a motor vehicle while under the
influence of alcohol ("DUI"); and reinstated her
driver's license. On appeal, the Commissioner assigns
error to the circuit court's rulings.
consideration of the parties' briefs, oral arguments, and
the appendix record, this Court concludes that the circuit
court erred in reversing the order of the OAH because the
record evidence is sufficient to support a finding that Ms.
Grillot drove a motor vehicle while under the influence of
alcohol which warranted the administrative revocation of her
driver's license. Accordingly, we reverse the July 7,
2017 order of the Circuit Court of Boone County and remand
this case to the circuit court for entry of an order
reinstating the Commissioner's order of revocation.
Because this case does not present a new or significant issue
of law, and for the reasons set forth herein, we find this
case satisfies the "limited circumstances"
requirement of Rule 21(d) of the West Virginia Rules of
Appellate Procedure and is proper for disposition as a
facts of the instant proceeding are mostly disputed by the
parties. At approximately 1:54 a.m. on March 10, 2012,
Officer L.W. Holeston, of the Madison, West Virginia, Police
Department,  was driving his patrol car in Madison and
reportedly saw Ms. Grillot driving in the opposite direction,
straddling the center line, weaving, swerving into Officer
Holeston's lane of traffic, using the brakes frequently,
and traveling at a slow rate of speed. According to Ms.
Grillot, Officer Holeston was traveling behind her vehicle
and, due to the bright lights on his car, she pulled into a
restaurant parking lot; Officer Holeston pulled into the
parking lot behind her and turned on his car's blue
lights. Pursuant to Officer Holeston, he turned on his
car's blue lights and stopped Ms. Grillot at the same
restaurant parking lot she referenced.
Holeston reported that, when he approached Ms. Grillot's
vehicle, he smelled alcohol and observed wine in the car. He
further stated that Ms. Grillot was unsteady while exiting
her vehicle, walking, and standing; she had slurred speech;
and her eyes were red and glassy. Officer Holeston claims
that Ms. Grillot said that she had drunk a beer; Ms. Grillot
denies making this statement and claims, instead, that she
had not been drinking alcohol prior to this encounter with
Officer Holeston administered three field sobriety tests to
Ms. Grillot. The horizontal gaze nystagmus ("HGN")
test checks eye movement. On the D.U.I. Information Sheet,
upon which Officer Holeston recorded his encounter with Ms.
Grillot, Officer Holeston indicated that Ms. Grillot had a
resting nystagmus, which, if accurate, would have negated the
HGN test. Just prior to the OAH hearing, however, Officer
Holeston claimed that such notation was in error. Testimony
provided by Officer Holeston regarding the degree
calculations for this test also calls the accuracy of these
test results into question.
Officer Holeston requested Ms. Grillot to complete the walk
and turn test; the D.U.I. Information Sheet indicates that
she missed the heel-to-toe part of the test. Finally, Officer
Holeston administered the one leg stand test, reporting that
Ms. Grillot completed this test on one leg while swaying and
putting her foot down on the other leg.
Holeston then attempted to administer a preliminary breath
test, but Ms. Grillot provided an insufficient sample. After
transporting Ms. Grillot to the police station, Officer
Holeston reported that he gave her a secondary chemical test
of her breath, and that she also blew an insufficient sample
for this test. Thereafter, Officer Holeston noted that he
offered Ms. Grillot an additional secondary chemical test,
which she refused. Ms. Grillot, however, disputes this claim
and asserts that she requested a secondary blood or urine
test, which Officer Holeston refused to provide.
Grillot's corresponding criminal proceeding following her
arrest for DUI, Ms. Grillot's attorney allegedly
requested the video of the traffic stop from Officer
Holeston's patrol car's video recording system. It is
unclear whether the system in Officer Holeston's car
actually recorded Officer Holeston's traffic stop of Ms.
Grillot and his administration of the three field sobriety
tests because no such video could be located. Various
testimony suggests that the subject video was created and
either was lost or that the Madison Police Department failed
to preserve it.
Holeston completed and submitted a D.U.I. Information Sheet
alleging that Ms. Grillot had operated a motor vehicle while
under the influence of alcohol, and, on April 6, 2012, the
Commissioner of the Division of Motor Vehicles entered an
Order of Revocation revoking Ms. Grillot's driver's
license based on such allegations. Ms. Grillot appealed the
Commissioner's order, which stayed her license
revocation, and the OAH held an evidentiary hearing on the
matter. By order entered November 4, 2016, the OAH affirmed
the Commissioner's Order of Revocation, ruling that Ms.
Grillot had driven a motor vehicle while under the influence
of alcohol. Ms. Grillot then appealed the OAH's order to
the Circuit Court of Boone County. By order entered July 7,
2017, the circuit court reversed the OAH's order, ruling
that the OAH had not fully considered all of the evidence
presented in the case. It is from this adverse ruling that
the Commissioner now appeals to this Court.
instant proceeding is before the Court on appeal from a
circuit court order that reversed a decision of the OAH. We
previously have held that,
[o]n 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');">196 W.Va. 588, 474
S.E.2d 518 (1996). In this regard, the Court's review is
prescribed by the governing statutory law. Thus,
[u]pon judicial review of a contested case under the West
Virginia Administrative Procedure[s] 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,