                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Patricia S. Reed, Commissioner of the                                            FILED
West Virginia Division of Motor Vehicles,                                    March 13, 2015
                                                                            RORY L. PERRY II, CLERK
Petitioner Below, Petitioner                                              SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA
vs) No. 14-0712 (Kanawha County 13-AA-115)

Charles Starcher,

Respondent Below, Respondent



                             MEMORANDUM DECISION
       Petitioner Patricia S. Reed1, Commissioner of the West Virginia Division of Motor
Vehicles, by counsel Janet E. James, appeals the final order of the Circuit Court of Kanawha
County, entered June 26, 2014, affirming the decision of the Office of Administrative Hearings
(“OAH”). The OAH rescinded the revocation of Respondent Charles Starcher’s license to
operate a motor vehicle in this state upon finding that petitioner failed to establish that
respondent drove a vehicle while under the influence of controlled substances. Respondent
appears by counsel David Pence.

       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 order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.

        Petitioner contends that the evidence of record supports the commissioner’s initial
revocation. Her sole assignment of error is that the circuit court improperly discounted evidence
of respondent’s drug use and impairment. We find our standard of review for this matter in
Muscatell v. Cline, Commissioner, 196 W.Va. 588, 474 S.E.2d 518 (1996), wherein Syllabus
Point 1 expresses our holding that


       [o]n 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) [concerning

1
  While this case was pending before the Court, Patricia S. Reed replaced Steven O. Dale as
Commissioner of the West Virginia Division of Motor Vehicles. Pursuant to Rule 41(c) of the
West Virginia Rules of Appellate Procedure, the name of the current public officer has been
substituted accordingly in this action.
                                                1

       contested cases under the West Virginia Administrative Procedures Act] 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.

Accord, Syl. Pt. 1, Ullom v. Miller, Comm’r, 227 W.Va. 1, 705 S.E.2d 111 (2010).

        The facts relevant to our evaluation of the circuit court’s order are undisputed. In July of
2011, Charleston Police Department Senior Patrolman C.E. Sizemore, the investigating officer,
responded to a call for assistance from other officers at a daycare to which respondent had driven
his four-year-old daughter for supervised visitation with the child’s mother. Respondent was
creating a disturbance at the facility, and officers noted that his speech was slurred, he was
unsteady on his feet, and his pupils were dilated. Officer Sizemore administered standard field
sobriety tests (horizontal gaze nystagmus, walk-and-turn, and one-leg stand), and later testified at
the administrative hearing that respondent failed each test. Respondent advised officers on the
scene that he had taken several medications, including morphine, within the three-hour period
prior to his driving to the daycare. Respondent was placed under arrest.

        Petitioner issued an order of revocation in August of 2011, and respondent requested an
administrative hearing. In addition to the evidence described above, the appendix record on
appeal shows that respondent testified at the hearing that he walks unsteadily and with a limp
because of a back injury. (A letter written by respondent’s physician and presented at the hearing
explains that respondent suffers from lumbar disc disease and chronic back pain, for which the
physician prescribes morphine.) Of import, Officer Sizemore agreed with petitioner’s counsel
during cross-examination that the ingestion of morphine would cause constricted, not dilated,
pupils and that morphine would not cause nystagmus onset.

        The Office of Administrative Hearings entered a decision on August 16, 2013, in which
the hearing examiner wrote that respondent’s “speech was likely slurred [on the morning of his
arrest] because he was upset and naturally talks with a distinct drawl.” She also wrote that
respondent’s unsteady gait and failure of the walk-and-turn and one-leg stand tests were
explained by his back injury. She found that respondent’s nystagmus onset and dilated pupils
were not evidence of morphine impairment. The Office of Administrative Hearings rescinded the
order of revocation. Petitioner appealed, and the Circuit Court of Kanawha County affirmed the
decision. This appeal followed.

        On appeal, petitioner argues that respondent’s failure of the standard sobriety tests,
together with the slurred speech, unsteady gait, dilated pupils, and admission of having taken a
controlled substance, all observed by the investigating officer, is sufficient evidence to support
the commissioner’s revocation. However, the hearing examiner, who had the opportunity to
observe respondent, found that the failure of the field sobriety tests and the unsteady gait were
attributable to respondent’s pre-existing physical impairment, and that any speech defects were
likely the result of his emotional state and a pronounced “drawl.” Furthermore, the hearing
examiner found, based on the cross-examination testimony of Officer Sizemore, that neither
respondent’s dilated pupils nor his nystagmus onset was evidence of morphine intoxication. As
this Court explained in Modi v. West Virginia Board of Medicine, 195 W.Va. 230, 239, 465

                                                 2

S.E.2d 230, 239 (1995),

       findings of fact made by an administrative agency will not be disturbed on appeal
       unless such findings are contrary to the evidence or based on a mistake of law. In
       other words, the findings must be clearly wrong to warrant judicial interference.
       Accordingly, absent a mistake of law, findings of fact by an administrative agency
       supported by substantial evidence should not be disturbed on appeal.

(Citations omitted). In consideration of the unique facts before us, and mindful of the exclusive
role of the hearing examiner in recording observations and making credibility determinations, we
find that the administrative findings are supported by sufficient evidence. The hearing
examiner’s conclusion is plausible and there is no clear error warranting the circuit court’s—or
our—interference.

       For the foregoing reasons, we affirm.

                                                                               Affirmed.


ISSUED: March 13, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum

DISSENTING:

Justice Brent D. Benjamin

DISSENTING AND WRITING SEPARATELY:

Justice Allen H. Loughry II




                                               3

Loughry, J., dissenting:

       The preponderance of the evidence in this case proved that Mr. Starcher drove a motor
vehicle while under the influence of one or more drugs. Accordingly, the administrative
revocation of his driver’s license should have been upheld.

       Mr. Starcher admitted that he ingested thirty to sixty milligrams of morphine less than
three hours before driving his young daughter to a child visitation center. This morphine was in
addition to an antibiotic, a blood pressure medication, and an antidepressant that he ingested.

        Moreover, Mr. Starcher’s belligerent behavior at the visitation center was a strong
indicator that he was under the influence. He created such a disturbance that the center’s
employees telephoned police to report their belief that he was under the influence of either drugs
or alcohol. Mr. Starcher claims that his behavior and his Appalachian “drawl” were simply
misinterpreted as evidence of impairment, but the center’s employees would have seen and heard
him during his multiple prior visits and they never before found it necessary to seek assistance
from law enforcement.

        Upon arriving at the center, the arresting officer heard Mr. Starcher’s slurred speech,
observed that his eyes were dilated, and observed that he was unsteady while walking and
standing. Accordingly, the officer administered field sobriety tests, which Mr. Starcher failed.
At the administrative hearing, Mr. Starcher claimed that he was unable to pass the one leg stand
and walk and turn tests because of herniated discs in his back. However, he did not claim that
his back problems caused him to be unsteady while engaging in normal standing and walking in
the officer’s presence. Instead, he simply denied that he was unsteady. Other than his after-the­
fact, self-serving denials, there is nothing to rebut the officer’s observations that Mr. Starcher
was unsteady and had slurred speech.

        Because there was sufficient evidence that Mr. Starcher drove a motor vehicle while he
was under the influence of one or more drugs, the OAH was clearly wrong to overturn the
Commissioner’s revocation order. See Syl. Pt. 2, Shepherdstown Volunteer Fire Dept. v. State ex
rel. State of W.Va. Human Rights Comm’n, 172 W.Va. 627, 309 S.E.2d 342 (1983) (recognizing
that under W.Va. Code § 29A-5-4(g), court “shall” reverse, vacate or modify order that is clearly
wrong in view of reliable, probative and substantial evidence on whole record). Accordingly, I
respectfully dissent.




                                                4

