No. 14-0103 -        Patricia S. Reed, Commissioner, West Virginia Division of Motor
                     Vehicles v. Jeffrey Hill

                                                                           FILED
                                                                       February 27, 2015

                                                                      RORY L. PERRY II, CLERK

                                                                    SUPREME COURT OF APPEALS

                                                                        OF WEST VIRGINIA


Davis, Justice, dissenting:

              In this proceeding, the lower tribunals found that Jeffrey Hill was unlawfully

arrested. Therefore, his driver’s license was improperly revoked. In this appeal, the

Commissioner of the Division of Motor Vehicles argued that the arresting officer properly

administered the preliminary breath test (“PBT”). Therefore, the arrest of Mr. Hill was legal.

The majority opinion found that, even though the PBT test was invalid, the arrest for DUI

was lawful. For the reasons set out below, I dissent.



         Under the Majority Opinion, Field Sobriety Tests No Longer Need Be

         Given to Support an Arrest for DUI after a Routine Stop of a Vehicle


              The majority opinion correctly points out that the police officer conceded that

Mr. Hill passed the one leg stand and walk and turn field sobriety tests. The officer

submitted documentation showing that, at the time of his arrest, Mr. Hill failed the horizontal

gaze nystagmus (“HGN”) test. However, during the administrative hearing the officer

testified that Mr. Hill, in fact, had passed the HGN test. The majority opinion, like the lower

tribunals, accepted the officer’s administrative hearing testimony that Mr. Hill passed the

HGN test.


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              Because the lower tribunals determined that Mr. Hill had passed all tests

administered by the arresting officer, the dispositive issue here is whether the PBT was

properly administered. To be clear, the Commissioner’s brief implicitly conceded that if the

PBT was improperly administered, probable cause to arrest Mr. Hill did not exist.



              This Court previously has recognized that, under the DUI statute, it was

required that Mr. Hill be “lawfully placed under arrest for an offense involving driving under

the influence of alcohol[.]” Dale v. Ciccone, 233 W. Va. 652, 659, 760 S.E.2d 466, 473

(2014) (internal quotation marks and citation omitted). A lawful arrest is required for the

police to administer a secondary chemical test. See W. Va. Code § 17C-5-4(c) (2013) (Repl.

Vol. 2013). The Commissioner cited the following as establishing probable cause to arrest

Mr. Hill:

                      Dep. Delgado had reasonable grounds to believe [Mr.
              Hill] was driving under the influence from his near head-on
              collision with Dep. Delgado, his admission of drinking four
              beers, the odor of alcohol on his breath, bloodshot and glassy
              eyes, unsteadiness while standing, and excited and slightly
              slurred speech. This was sufficient basis for Dep. Delgado to
              administer the PBT. Once [Mr. Hill] failed the test, Dep.
              Delgado had reasonable grounds to believe that [Mr. Hill] was
              under the influence, and [Mr. Hill] was lawfully arrested.

(Emphasis added).



              It is clear from the Commissioner’s argument that the determination of


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probable cause to arrest Mr. Hill did not occur until after he failed the PBT. See Hill v.

Cline, 193 W. Va. 436, 440, 457 S.E.2d 113, 117 (1995) (“After [the driver] failed the

sobriety tests, probable cause existed to arrest [him] for driving under the influence.”).

Correctly, the majority opinion, like the lower tribunals, concluded that the PBT was invalid

because the police officer did not wait the required amount of time before administering the

test. See Davis v. Miller, No. 11-1189, 2012 WL 6097655, at *1 n.2 (W. Va. Dec. 7, 2012)

(memorandum decision) (“[T]he results of the preliminary breath test ‘cannot be given any

weight because the record reflects that it was administered two minutes after the Arresting

Officer’s initial contact with [petitioner] and therefore the fifteen minute time-frame was not

adhered to in accordance with the guidelines.’”). The lower tribunals correctly determined

that because the PBT was invalid, no legal basis existed for the officer to arrest Mr. Hill. The

majority opinion disagreed and found that, even though Mr. Hill passed the one leg stand,

walk and turn, and HGN tests, and that the PBT was invalid, the officer nevertheless had

probable cause to arrest Mr. Hill.



              Under the facts of this case, the majority decision has drastically altered the

probable cause standard for a DUI arrest of a motorist during a routine stop of a vehicle

based on reasonable suspicion. For example, under the new standard articulated by the

majority, if a police officer stops a vehicle because of an expired registration sticker and

smells alcohol, notices glassy eyes, slurred speech, and unsteadiness in standing, the officer


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may immediately arrest the driver and require the driver to take a secondary chemical test.

In other words, it matters not that the driver passed all field sobriety tests–because, under the

majority’s new standard, the police can dispense with performing field sobriety tests.



              This new standard imposed by the majority is unworkable and will lead to

numerous DUI arrests that, like the instant case, are based on suspicion, not probable cause.

Our law on probable cause in general has been stated as follows:

                    Probable cause to make a misdemeanor arrest without a
              warrant exists when the facts and circumstances within the
              knowledge of the arresting officer are sufficient to warrant a
              prudent man in believing that a misdemeanor is being
              committed in his presence.

Syl., Simon v. West Virginia Dep’t of Motor Vehicles, 181 W. Va. 267, 382 S.E.2d 320

(1989). See Syl. pt. 2, Carroll v. Stump, 217 W. Va. 748, 619 S.E.2d 261 (2005) (“A person

is ‘charged’ with an offense, for the purposes of W. Va. Code § 17C-5A-1 (1994), when he

or she is lawfully arrested by a law-enforcement officer having probable cause to suspect the

person was driving a motor vehicle under the influence of alcohol, controlled substances or

drugs.”). In the instant case, it is clear that the police officer did not have probable cause to

arrest Mr. Hill without, at a minimum, showing that he failed the PBT. The Commissioner

knew this and therefore based its argument entirely upon the validity of the PBT test to

support the arrest. Simply put, the majority opinion has carved out a standard that gives

police officers absolute discretion to arrest citizens for DUI on only mere suspicion!!!


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              Let me be clear. Our cases do recognize that there can be circumstances where

field sobriety tests cannot be administered; yet, an arrest for DUI may ensue. For example,

this situation may arise because of an accident that required the driver to be taken to a

hospital. See Syl. pt. 1, State v. Franklin, 174 W. Va. 469, 327 S.E.2d 449 (1985) (“Since

the offense of driving under the influence of alcohol resulting in death . . . may be, depending

on the circumstances, either a felony or misdemeanor, a lawful, warrantless arrest may be

made, upon reasonable suspicion of probable cause, at a hospital by an officer before whom

the offence was not committed if the suspect has been taken to the hospital from the scene

of the accident for emergency medical care.”). See also State v. Shugars, 180 W. Va. 280,

376 S.E.2d 174 (1988) (trooper informed defendant at hospital that he was being charged).

However, until the majority opinion in the instant case, the decisions of this Court have

always required evidence of failed field sobriety tests to support an arrest after a routine stop

of a vehicle on mere suspicion.1 I strongly disagree with the majority’s deviation from our


       1
        See, e.g., Dale v. Odum, 233 W. Va. 601, 760 S.E.2d 415 (2014) (failed the field
sobriety tests and preliminary breath test); Carroll v. Stump, 217 W. Va. 748, 619 S.E.2d 261
(2005) (failed several field sobriety tests); State v. Davisson, 209 W. Va. 303, 547 S.E.2d 241
(2001) (defendant failed field sobriety tests); State ex rel. State v. Gustke, 205 W. Va. 72, 516
S.E.2d 283 (1999) (driver failed a series of field sobriety tests); Muscatell v. Cline, 196
W. Va. 588, 474 S.E.2d 518 (1996) (failed field sobriety tests); Hill v. Cline, 193 W. Va. 436,
457 S.E.2d 113 (1995) (defendant failed field sobriety tests); Donahue v. Cline, 190 W. Va.
98, 437 S.E.2d 262 (1993) (driver was unable to perform field sobriety tests adequately);
Cunningham v. Bechtold, 186 W. Va. 474, 478, 413 S.E.2d 129, 133 (1991) (driver was
unable to satisfactorily complete any of the field sobriety tests given to him); Simon v. West
Virginia Dep’t of Motor Vehicles, 181 W. Va. 267, 382 S.E.2d 320 (1989) (failed field
sobriety test). See also Commissioner of West Virginia Div. of Motor Vehicles v. Brewer, No.
13-0501, 2014 WL 1272540 (W. Va. Mar. 28, 2014) (memorandum decision) (driver failed

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well-settled law.



               Consequently, I dissent.




field sobriety tests).

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