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State v. Wright

Supreme Court of West Virginia

April 19, 2019

State of West Virginia, Plaintiff Below, Respondent
v.
Jonathan Thomas Wright, Defendant Below, Petitioner

          Wood County 17-M-AP-5

          MEMORANDUM DECISION

         Petitioner Jonathan Thomas Wright, by counsel Joseph H. Spano, Jr., appeals the Circuit Court of Wood County's March 5, 2018, order denying his appeal of his conviction in magistrate court of driving under the influence. The State, by counsel Holly M. Flanigan, filed a response. Petitioner filed a reply. On appeal, petitioner alleges that the circuit court erred in declining to review whether the criminal complaint against petitioner was valid, finding that the requisite twenty-minute waiting period prior to petitioner's secondary breath test was satisfied, and finding that the totality of the circumstances was sufficient for the officer to arrest petitioner for driving a motor vehicle under the influence of alcohol. Additionally, petitioner argues that the circuit court erred in denying his motion to grant the circuit court appeal due to the untimely filing of a response by the prosecution.[1]

         This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         On June 7, 2017, Officer Semones of the Parkersburg Police Department responded to a call from petitioner regarding a complaint that a suspicious individual was at his location and possibly using drugs. Officer Semones responded to the scene around 5:00 a.m. and noticed a motor vehicle parked in a residential area on Chestnut Street. Petitioner was found in the driver's seat of the vehicle. The key was in the ignition and the engine was running. There were no other passengers in the vehicle other than petitioner, and no other individuals were at the scene, except for assisting officers. Officer Semones questioned petitioner about why he was at that location. Petitioner responded that he was there to see a friend, but did not know his friend's name. Officer Semones obtained petitioner's driver's license and determined that his residence was somewhere other than Chestnut Street. Officer Semones detected the odor of an alcoholic beverage and asked petitioner to exit the vehicle. Upon exiting the vehicle, Officer Semones observed that petitioner demonstrated impaired balance, bloodshot eyes, and slurred speech. Officer Semones administered three field sobriety tests, which petitioner failed. A preliminary breath test registered the presence of alcohol. Petitioner told Officer Semones that he drank one beer and did not remember driving to the location. Petitioner also told Officer Semones of one other occasion wherein he drank alcohol with his medication, which caused him to black out and sleepwalk. Officer Semones arrested petitioner for driving under the influence ("DUI") and transported him to the police department for further testing. During the five minute drive to the police station, Officer Semones did not observe petitioner consume anything or regurgitate.

         Petitioner was placed in a holding room, referred to as the DUI room. Officer Semones obtained an implied consent form, reviewed it with petitioner, and petitioner signed the form. Officer Semones was present in the room with petitioner for twenty minutes, with the exception of ten seconds when he went to a connecting room to retrieve latex gloves. While he was gone, an assisting officer was in the room with petitioner. Officer Semones later testified at trial that he did not hear or smell anything to indicate that petitioner vomited. Petitioner submitted to the Intoximeter secondary test and produced a result of .132 blood-alcohol content. A change of shift for the officers occurred before the criminal complaint was sworn before a magistrate and petitioner was arraigned. Officer Bosley appeared at the arraignment and filed the criminal complaint. On June 1, 2017, the magistrate court entered a final order following a jury trial finding petitioner guilty of driving under the influence and sentenced petitioner to forty-eight hours of incarceration and the minimum fine. Thereafter, petitioner appealed that order to circuit court. In its final order, the circuit court addressed petitioner's assigned errors.

         First, the circuit court provided a detailed discussion regarding the twenty-minute observation period required by West Virginia C.S.R. § 64-10-7.2(a) (2005), which provides as follows:

The law enforcement officer shall keep the person being tested under constant observation for a period of twenty minutes before the test is administered to insure that the person has nothing in his or her mouth at the time of the test and that he or she has had no food or drink or foreign matter in his or her mouth during the observation period.

         The circuit court explained that it reviewed a video record from the time Officer Semones and petitioner entered the DUI room until petitioner blew into the Intoximeter and several minutes thereafter. The circuit court also reviewed Officer Semones's testimony from the magistrate court trial. The circuit court noted that petitioner was never alone in the DUI room, but that when Officer Semones left the room for approximately ten seconds to retrieve plastic gloves, another officer was present in the room with petitioner, although he was on his telephone. During this ten-second period of time, according to the circuit court, the officer was "no more than two or three feet away from [petitioner] who makes no movement or gesture indicative of regurgitation." According to the circuit court, petitioner blew into the Intoximeter approximately twenty-three minutes and twenty-two seconds after signing the implied consent statement. Officer Semones's testimony also established that he left the DUI room for ten seconds to retrieve plastic gloves from an adjacent room. According to his testimony, the two rooms were not separated by a door and Officer Semones had the ability to hear any noise in the DUI room. He testified that while he was gone, he did not hear petitioner cough or vomit and upon his return to the DUI room, he did not smell anything to indicate that petitioner regurgitated or vomited. The circuit court concluded that the observation requirement under West Virginia C.S.R. § 64-10-7.2(a) (2005) was satisfied.

         Second, the circuit court addressed petitioner's argument regarding whether the totality of the circumstances was sufficient for the officer to arrest petitioner for driving a motor vehicle under the influence of alcohol when he did not see petitioner drive the vehicle. The circuit court noted that the offense of driving under the influence of alcohol does not have to be committed in the presence of a police officer in order to justify a warrantless arrest. See, e.g., State v. Byers, 159 W.Va. 596, 224 S.E.2d 726 (1976). Furthermore, the offense does not require that the police officer actually see or observe a person operating a motor vehicle before the officer can charge the person "so long as all the surrounding circumstances indicate the vehicle could not otherwise be located where it is unless it was driven there by that person." Carte v. Cline, 200 W.Va. 162, 167, 488 S.E.2d 437, 442 (1997). The circuit court went on to discuss Officer Semones's testimony regarding his observations at the scene. Officer Semones found petitioner in the driver's seat of the vehicle with the keys in the ignition and the engine running. He testified that petitioner did not live in the house in front of which the vehicle was parked; petitioner did not know where exactly he was; he gave no explanation as to how the vehicle got to the location; and there were no other persons with petitioner. Officer Semones also testified that he did not see any alcoholic beverages in the vehicle, but that he detected an odor of alcohol about petitioner. According to Officer Semones's testimony, upon exiting the vehicle, petitioner demonstrated impaired balance, bloodshot eyes, and slurred speech. He proceeded to fail three field sobriety tests. The circuit court concluded that, based on a totality of the circumstances, there was more than sufficient evidence for Officer Semones to arrest petitioner for DUI.

         Third, the circuit court addressed petitioner's argument that the criminal complaint was invalid because the arresting officer did not sign it or appear at petitioner's arraignment. Despite stating that this issue was not reviewable because it was first raised on appeal, the circuit court proceeded to address the issue. First, the circuit court stated that Rule 4 of the Rules of Criminal Procedure for Magistrate Courts "governs issuance of arrest warrants or summons upon complaint and requires that it appear from the complaint that there is probable cause to believe that an offense has been committed and that the defendant has committed it." Additionally Rule 4(b) of the Rules of Criminal Procedure for Magistrate Courts provides that the finding of probable cause "may be based upon hearsay evidence in whole or in part." According to the circuit court, there is no requirement that the arresting or investigating officer is the only officer who may present a criminal complaint to a magistrate. The circuit court concluded that there was "absolutely no requirement that an officer who presents and swears to or affirms a complaint before a magistrate shall have personally witnessed the alleged offense. Neither Rule 4 nor W.Va. Code [§] 62-1-1 mandates such a condition."

         Lastly, the circuit court addressed petitioner's argument regarding the State's late response to his petition for appeal to the circuit court. The response was to be filed by Friday, December 1, 2017, and was not filed until Monday, December 4, 2017. The circuit court concluded that petitioner did "not contend he was prejudiced and the [c]ourt finds no prejudice in the State's [r]esponse being filed on December 4, 2017." Ultimately, the circuit court denied petitioner's appeal by order entered on March 5, 2018. It is from this order that petitioner appeals.

         We have previously held as follows:

"In reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review." Syl. Pt. 2, Walker v. West Virginia Ethics Comm'n, 201 W.Va. 108, 492 S.E.2d 167 (1997).

Syl. Pt. 2, State v. Bruffey, 207 W.Va. 267, 531 S.E.2d 332 (2000). Upon our review, we find no error in the circuit court ...


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