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Holley v. Crook

Supreme Court of Appeals of West Virginia

September 9, 2019

Adam Holley, Acting Commissioner of the West Virginia Division of Motor Vehicles, Plaintiff Below, Petitioner
v.
Katie Crook, Defendant Below, Respondent

          (Ohio County 17-P-2)

          MEMORANDUM DECISION

         Petitioner Adam Holley, Acting Commissioner of the West Virginia Division of Motor Vehicles ("DMV"), by counsel Elaine L. Skorich, appeals the Circuit Court of Ohio County's June 14, 2018, order reversing the final order of the Office of Administrative Hearings ("OAH"), which affirmed the DMV's order revoking respondent's driver's license.[1] Respondent Katie Crook, by counsel Joseph J. John, filed a response. Petitioner filed a reply.

         The Court has considered the parties' briefs and record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. This case satisfies the "limited circumstances" requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate for a memorandum decision rather than an opinion. For the reasons expressed below, the decision of the circuit court is reversed, and this case is remanded to the circuit court for entry of an order reinstating the DMV's order of revocation.

         Just after midnight on April 7, 2013, Oglebay Park ("Oglebay" or "park") rangers reported a vehicle parked on the shoulder of the road to the Ohio County Sheriff's Department and requested that officers check on the vehicle. The vehicle was parked in a section of the park where individuals pull off the road to sled or watch golfers; however, given the time, no events were occurring at Oglebay.

         Sergeant T. Gessler arrived at the vehicle first and Deputy Dustin English responded shortly after. The officers observed respondent asleep in the driver's seat of the vehicle, alone, with the engine running. To wake her, the officers had to get into the vehicle, where they smelled alcohol. After the officers awakened respondent, Deputy English noted "a certain level of intoxication just upon getting her out of the vehicle." The officers then administered the horizontal gaze nystagmus, walk and turn, and one-leg-stand field sobriety tests, all of which respondent failed. After respondent's preliminary breath test showed a blood alcohol concentration of 0.19%, she was placed into custody for driving under the influence ("DUI") and taken to the Sheriff's Department for processing and a secondary chemical test of the breath.

         At the Sheriff's Department, respondent's secondary test showed a blood alcohol concentration of 0.171%. Deputy English then read respondent her Miranda rights[2] and conducted a post-arrest interview, during which she admitted that she had been driving, was heading home, and had been drinking an unknown quantity of beer for the three hours preceding her arrest.

         The DMV issued an order revoking respondent's driving privileges on April 26, 2013. Respondent filed written objections to this order of revocation and requested a hearing before the OAH. Respondent included a "Statement of Grounds Upon Which Respondent Claims That The Suspension or Revocation Should Be Dismissed or Modified" ("Statement of Grounds") with her written objections, which set forth thirty claimed errors.

         The OAH held the requested hearing on March 26, 2015. Deputy English testified that after finding respondent in the driver's seat of a running vehicle, he and Sergeant Gessler concluded that she had driven the vehicle to the location at which she was found. Deputy English acknowledged, however, that he did not see respondent driving; that there was no evidence that Sergeant Gessler or the park rangers had observed her driving; that, initially, because he "did not see a vehicle in motion," he did not believe he had probable cause to arrest her; and that Sergeant Gessler, Deputy English's superior, instructed him to make the arrest.

         Respondent's counsel also elicited the following testimony:

Q: [Respondent] certainly could have moved over in the passenger seat and turned the car on to turn the heat on, correct?
A: Correct.
Q: And, do you know how long the vehicle was there?
A: I don't know.
Q: It could have been there for hours, correct?
A: Correct.
Q: Isn't it true, [Deputy] English, that that car could have been driven there by someone other than [respondent]?
A: Correct.
Q: Her boyfriend could have driven it there?
A: Yes.

         Following and despite this testimony, Deputy English testified twice more that he nonetheless concluded that respondent drove the ...


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