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Reed v. Winesburg

Supreme Court of West Virginia

March 6, 2019

PAT REED, Commissioner, Division of Motor Vehicles, Petitioner

          Submitted: January 15, 2019

          Appeal from the Circuit Court of Ohio County The Honorable David J. Sims, Judge Civil Action No. 17-P-19

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

          Robert G. McCoid., Esq. McCamic, Sacco, & McCoid PLLC Wheeling, West Virginia Counsel for the Respondent


         1. "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, 474 S.E.2d 518 (1996).

         2. "In cases where the circuit court has [reversed] 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, 474 S.E.2d 518 (1996).

         3. "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, 309 S.E.2d 342 (1983).

         4. "Probable cause to make an arrest without a warrant exists when the facts and circumstances within the knowledge of the arresting officers are sufficient to warrant a prudent man in believing that an offense has been committed." Syllabus Point 2, in part, State v. Rahman, 199 W.Va. 144, 483 S.E.2d 273 (1996).

         5. "Since a reviewing court is obligated to give deference to factual findings rendered by an administrative law judge, a circuit court is not permitted to substitute its judgment for that of the hearing examiner with regard to factual determinations." Syllabus Point 1, in part, Cahill v. Mercer County Bd. of Educ., 208 W.Va. 177, 539 S.E.2d 437 (2000).

         6. "Where there is evidence reflecting that a driver was operating a motor vehicle upon a public street or highway, exhibited symptoms of intoxication, and had consumed alcoholic beverages, this is sufficient proof under a preponderance of the evidence standard to warrant the administrative revocation of his driver's license for driving under the influence of alcohol." Syllabus Point 2, Albrecht v. State, 173 W.Va. 268, 314 S.E.2d 859 (1984).



         The Office of Administrative Hearings ("OAH") entered an order affirming the revocation of Respondent Joseph Winesburg's ("Mr. Winesburg") driver's license for driving under the influence of alcohol ("DUI"). The circuit court reversed the OAH's order, ruling that there was no "lawful evidence" that Mr. Winesburg was under the influence of alcohol when he was arrested for DUI. It determined that "[b]ecause Mr. Winesburg was not lawfully arrested, any secondary chemical test was not lawfully administered." Mr. Winesburg's secondary chemical test following his arrest revealed that he had a blood alcohol concentration ("BAC") of .109-well above the legal limit of .08.[1]

         On appeal, Petitioner Pat Reed, Commissioner of the West Virginia Division of Motor Vehicles ("DMV"), contends that the circuit court erred by failing to consider the totality of the evidence relating to Mr. Winesburg's arrest for DUI, including 1) his admission that he had consumed five or six beers prior to driving, 2) his glassy, bloodshot eyes, and 3) the odor of alcohol that was detected on his breath.

         After review, we agree with the DMV and find that the OAH's order was supported by substantial evidence demonstrating that Mr. Winesburg was lawfully arrested for DUI. The circuit court abused its discretion by substituting its judgment for that of the OAH in violation of our established standard of review. We therefore reverse the circuit court's order and reinstate the OAH's order affirming the DMV's revocation of Mr. Winesburg's driver's license.


         Mr. Winesburg was arrested and charged with DUI on December 24, 2010. Thereafter, the DMV ordered the revocation of Mr. Winesburg's driver's license by order dated January 20, 2011. Mr. Winesburg timely requested a hearing before the OAH to contest the revocation. The OAH held a hearing on May 29, 2015.

         Two witnesses testified during the OAH hearing-Ohio County Deputy Sherriff Branden Brooks ("Deputy Brooks") and Mr. Winesburg. Deputy Brooks testified that on December 24, 2010, he was dispatched to a single vehicle accident on Route 88 in Ohio County, West Virginia.[2] Upon arriving at the scene at 3:36 a.m., Deputy Brooks observed a vehicle "laying on its side beside the road." Mr. Winesburg was standing next to the vehicle when Deputy Brooks arrived. According to Deputy Brooks, Mr. Winesburg said that "two deer jumped out in front of him and he swerved and he went up on a hillside and slowly rolled down to his side." Deputy Brooks described his initial observation of Mr. Winesburg as follows: "I noticed that his eyes were glassy and bloodshot. There appeared to be the odor of alcoholic beverage coming from his person. I asked him if he had consumed any alcohol prior to driving and he said he had some beer. He said he drank some beer about five hours earlier."

         Following this initial interaction, Deputy Brooks administered three field sobriety tests-the horizontal gaze nystagmus ("HGN"), the walk and turn, and the one leg stand. Mr. Winesburg passed the walk and turn and one leg stand tests.[3] Regarding the HGN test, Deputy Brooks stated that Mr. Winesburg had "a lack of smooth pursuit in both eyes and very distinct sustained nystagmus and maximum deviation of both eyes." According to Deputy Brooks, the result of the HGN test demonstrated impairment.

         Thereafter, Deputy Brooks administered a preliminary breath test ("PBT") at 3:49 a.m. The PBT registered a BAC of .11. Deputy Brooks arrested Mr. Winesburg for DUI and transported him to the police station. Upon arriving at the police station, Mr. Winesburg executed the West Virginia Implied Consent Statement and was read his Miranda rights. After Deputy Brooks observed him for twenty minutes, [4] Mr. Winesburg registered a BAC of .109 on the designated secondary chemical breath test.

         During cross-examination, Deputy Brooks testified that when he arrived at the scene of the accident, Mr. Winesburg was "standing normally" and that his speech was not slurred. Also, Deputy Brooks admitted that he could not definitively state whether he conducted the HGN test in conformance with the National Highway Transportation Safety Administration's guidelines.[5] Further, he agreed that he administered the PBT to Mr. Winesburg thirteen minutes after arriving at the scene. Deputy Brooks did not dispute that he should have waited fifteen minutes before administering the PBT, and, therefore, agreed that the PBT was not given in the proper fashion.[6]

         Finally, when asked to explain his decision to arrest Mr. Winesburg for DUI, Deputy Brooks testified:

I'm not just going off of one single moment or one single test or one single clue, I'm looking at the overall picture and the totality of the circumstances there with regard to the wrecked vehicle, the bloodshot, glassy eyes, the odor of alcohol on his breath. He was drinking, yes. Thinking I'm doing the test properly with horizontal gaze, I get a fail, and then although I didn't pay attention to time on the PBT, all that comes into my factor as to when I'm placing someone into custody.

(Emphasis added.)

         The next and final witness to testify at the OAH hearing was Mr. Winesburg. He stated that prior to the vehicle accident, he was at a friend's house watching a football game that began at 8:00 or 8:30 p.m. Mr. Winesburg admitted that he had consumed "five or six beers" during the course of the football game, which he estimated lasted until midnight. After the game ended, Mr. Winesburg attempted to drive home. He testified that

I was on my way home, driving through Oglebay. It was below freezing that night, the roads were slick so I was driving slowly and actually going around the turn right below the Oglebay mansion . . . it's a pretty sharp turn. Several deer actually came off the hill. I swerved and put on my brakes and slid into the hillside and literally it was a slow motion wreck because of the hillside, and I literally toppled over.

         Mr. Winesburg estimated that Deputy Brooks arrived at the scene of the accident approximately one hour after it occurred. When Deputy Brooks asked if he had been drinking alcohol, Mr. Winesburg testified that he admitted to having consumed "five or six beers" that evening. Mr. Winesburg described his initial interaction with Deputy Brooks as follows:

When I first walked up to [Deputy Brooks] after he arrived on the scene, I walked up to him, told him what happened, he began asking questions, the typical, did you have anything to drink, and truthfully I told him that I did, and I don't know what else he would have asked me at that point. But he, ...

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