Submitted: January 15, 2019
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
G. McCoid., Esq. McCamic, Sacco, & McCoid PLLC 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, 474 S.E.2d 518 (1996).
"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).
"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).
"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).
"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
"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
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.
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.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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
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. 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
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. 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.
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,
Winesburg registered a BAC of .109 on the designated
secondary chemical breath test.
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. 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
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
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
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
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,