Adam Holley, Acting Commissioner of the West Virginia Division of Motor Vehicles, Plaintiff Below, Petitioner
Katie Crook, Defendant Below, Respondent
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. Respondent Katie Crook, by counsel Joseph
J. John, filed a response. Petitioner filed a reply.
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
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.
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.
Sheriff's Department, respondent's secondary test
showed a blood alcohol concentration of 0.171%. Deputy
English then read respondent her Miranda
rights 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.
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.
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.
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,
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?
Q: Isn't it true, [Deputy] English, that that car could
have been driven there by someone other than [respondent]?
Q: Her boyfriend could have driven it there?
and despite this testimony, Deputy English testified twice
more that he nonetheless concluded that respondent drove the