         IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                 January 2019 Term
                                 _______________                      FILED
                                                                   March 6, 2019
                                   No. 17-0834                        released at 3:00 p.m.
                                 _______________                  EDYTHE NASH GAISER, CLERK
                                                                  SUPREME COURT OF APPEALS
                                                                       OF WEST VIRGINIA

                                  PAT REED,
                    Commissioner, Division of Motor Vehicles,
                                   Petitioner

                                         v.

                             JOSEPH M. WINESBURG,
                                   Respondent

      ____________________________________________________________

                   Appeal from the Circuit Court of Ohio County
                       The Honorable David J. Sims, Judge
                             Civil Action No. 17-P-19

               REVERSED AND REMANDED WITH DIRECTIONS

      ____________________________________________________________

                             Submitted: January 15, 2019
                                Filed: March 6, 2019

Patrick Morrisey, Esq.                        Robert G. McCoid., Esq.
Attorney General                              McCamic, Sacco, & McCoid PLLC
Janet E. James, Esq.                          Wheeling, West Virginia
Assistant Attorney General                    Counsel for the Respondent
Charleston, West Virginia
Counsel for the Petitioner



JUSTICE ARMSTEAD delivered the Opinion of the Court.
                              SYLLABUS BY THE COURT


              1.     “On 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) 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.”

Syllabus Point 1, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996).

              2.     “In cases where the circuit court has [reversed] the result before the

administrative agency, this Court reviews the final order of the circuit court and the

ultimate disposition by it of an administrative law case under an abuse of discretion

standard and reviews questions of law de novo.” Syllabus Point 2, Muscatell v. Cline, 196

W.Va. 588, 474 S.E.2d 518 (1996).

              3.     “Upon judicial review of a contested case under the West Virginia

Administrative Procedure Act, Chapter 29A, Article 5, Section 4(g), the circuit court may

affirm the order or decision of the agency or remand the case for further proceedings. The

circuit court shall reverse, vacate or modify the order or decision of the agency if the

substantial rights of the petitioner or petitioners have been prejudiced because the

administrative findings, inferences, conclusions, decisions or order are: (1) In violation of

constitutional or statutory provisions; or (2) In excess of the statutory authority or

jurisdiction of the agency; or (3) Made upon unlawful procedures; or (4) Affected by other

error of law; or (5) Clearly wrong in view of the reliable, probative and substantial evidence

on the whole record; or (6) Arbitrary or capricious or characterized by abuse of discretion
or clearly unwarranted exercise of discretion.” Syllabus Point 2, Shepherdstown Volunteer

Fire Dep’t v. State ex rel. State of W.Va. Human Rights Comm’n, 172 W.Va. 627, 309

S.E.2d 342 (1983).

              4.     “Probable cause to make an arrest without a warrant exists when the

facts and circumstances within the knowledge of the arresting officers are sufficient to

warrant a prudent man in believing that an offense has been committed.” Syllabus Point 2,

in part, State v. Rahman, 199 W.Va. 144, 483 S.E.2d 273 (1996).

              5.     “Since a reviewing court is obligated to give deference to factual

findings rendered by an administrative law judge, a circuit court is not permitted to

substitute its judgment for that of the hearing examiner with regard to factual

determinations.” Syllabus Point 1, in part, Cahill v. Mercer County Bd. of Educ., 208 W.Va.

177, 539 S.E.2d 437 (2000).

              6.     “Where there is evidence reflecting that a driver was operating a

motor vehicle upon a public street or highway, exhibited symptoms of intoxication, and

had consumed alcoholic beverages, this is sufficient proof under a preponderance of the

evidence standard to warrant the administrative revocation of his driver’s license for

driving under the influence of alcohol.” Syllabus Point 2, Albrecht v. State, 173 W.Va. 268,

314 S.E.2d 859 (1984).
ARMSTEAD, Justice:


              The Office of Administrative Hearings (“OAH”) entered an order affirming

the revocation of Respondent Joseph Winesburg’s (“Mr. Winesburg”) driver’s license for

driving under the influence of alcohol (“DUI”). The circuit court reversed the OAH’s

order, ruling that there was no “lawful evidence” that Mr. Winesburg was under the

influence of alcohol when he was arrested for DUI. It determined that “[b]ecause Mr.

Winesburg was not lawfully arrested, any secondary chemical test was not lawfully

administered.” Mr. Winesburg’s secondary chemical test following his arrest revealed that

he had a blood alcohol concentration (“BAC”) of .109—well above the legal limit of .08.1

              On appeal, Petitioner Pat Reed, Commissioner of the West Virginia Division

of Motor Vehicles (“DMV”), contends that the circuit court erred by failing to consider the

totality of the evidence relating to Mr. Winesburg’s arrest for DUI, including 1) his

admission that he had consumed five or six beers prior to driving, 2) his glassy, bloodshot

eyes, and 3) the odor of alcohol that was detected on his breath.

              After review, we agree with the DMV and find that the OAH’s order was

supported by substantial evidence demonstrating that Mr. Winesburg was lawfully arrested

for DUI. The circuit court abused its discretion by substituting its judgment for that of the

OAH in violation of our established standard of review. We therefore reverse the circuit




       1
       See W.Va. Code § 17C-5-2 (2010) (defining criminal DUI to include driving with
a BAC of .08 or more).

                                             1
court’s order and reinstate the OAH’s order affirming the DMV’s revocation of Mr.

Winesburg’s driver’s license.

                I. FACTUAL AND PROCEDURAL BACKGROUND

              Mr. Winesburg was arrested and charged with DUI on December 24, 2010.

Thereafter, the DMV ordered the revocation of Mr. Winesburg’s driver’s license by order

dated January 20, 2011. Mr. Winesburg timely requested a hearing before the OAH to

contest the revocation. The OAH held a hearing on May 29, 2015.

              Two witnesses testified during the OAH hearing—Ohio County Deputy

Sherriff Branden Brooks (“Deputy Brooks”) and Mr. Winesburg. Deputy Brooks testified

that on December 24, 2010, he was dispatched to a single vehicle accident on Route 88 in

Ohio County, West Virginia.2 Upon arriving at the scene at 3:36 a.m., Deputy Brooks

observed a vehicle “laying on its side beside the road.” Mr. Winesburg was standing next

to the vehicle when Deputy Brooks arrived. According to Deputy Brooks, Mr. Winesburg

said that “two deer jumped out in front of him and he swerved and he went up on a hillside

and slowly rolled down to his side.” Deputy Brooks described his initial observation of Mr.

Winesburg as follows: “I noticed that his eyes were glassy and bloodshot. There appeared

to be the odor of alcoholic beverage coming from his person. I asked him if he had




      2
        A park ranger who worked in the area made the initial call to the police, alerting
them of the vehicle accident.

                                            2
consumed any alcohol prior to driving and he said he had some beer. He said he drank

some beer about five hours earlier.”

              Following this initial interaction, Deputy Brooks administered three field

sobriety tests—the horizontal gaze nystagmus (“HGN”), the walk and turn, and the one leg

stand. Mr. Winesburg passed the walk and turn and one leg stand tests.3 Regarding the

HGN test, Deputy Brooks stated that Mr. Winesburg had “a lack of smooth pursuit in both

eyes and very distinct sustained nystagmus and maximum deviation of both eyes.”

According to Deputy Brooks, the result of the HGN test demonstrated impairment.

              Thereafter, Deputy Brooks administered a preliminary breath test (“PBT”) at

3:49 a.m. The PBT registered a BAC of .11. Deputy Brooks arrested Mr. Winesburg for

DUI and transported him to the police station. Upon arriving at the police station, Mr.

Winesburg executed the West Virginia Implied Consent Statement and was read his

Miranda rights. After Deputy Brooks observed him for twenty minutes,4 Mr. Winesburg

registered a BAC of .109 on the designated secondary chemical breath test.




       3
        While Deputy Brooks testified that Mr. Winesburg passed these two tests, he also
noted that Mr. Winesburg missed one heel-to-toe during the walk and turn test, and that he
swayed while balancing during the one leg stand test.
       4
          See W.Va. Code St. R. § 64-10-7.2(a) (“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.”).



                                              3
                During cross-examination, Deputy Brooks testified that when he arrived at

the scene of the accident, Mr. Winesburg was “standing normally” and that his speech was

not slurred. Also, Deputy Brooks admitted that he could not definitively state whether he

conducted the HGN test in conformance with the National Highway Transportation Safety

Administration’s guidelines.5 Further, he agreed that he administered the PBT to Mr.

Winesburg thirteen minutes after arriving at the scene. Deputy Brooks did not dispute that

he should have waited fifteen minutes before administering the PBT, and, therefore, agreed

that the PBT was not given in the proper fashion.6

                Finally, when asked to explain his decision to arrest Mr. Winesburg for DUI,

Deputy Brooks testified:




       5
           Specifically, Mr. Winesburg’s counsel asked Deputy Brooks:

       Q. So with respect to the horizontal gaze nystagmus tests, you would agree
       with me that when you’re checking for smooth pursuit you’re required to go
       two seconds out and two seconds back the first eye, left eye, two seconds out,
       two seconds back, right eye, or whichever order you choose. But the standard
       also requires you go two seconds out and two seconds back again, and two
       seconds out and two seconds back again, correct?

       A. Yes.

       Deputy Brooks testified that he could not state whether he made one or two passes
for each eye: “I don’t recall if I did it again or if I just did it that one time for both eyes.”
       6
        The West Virginia Bureau for Public Health has promulgated a legislative rule
providing that “[t]he law enforcement officer shall prohibit the person from drinking
alcohol or smoking for at least fifteen minutes before conducting the [PBT] test.”
W.Va.C.S.R. § 64-10-5.2(a) (2005). See Reed v. Hill, 235 W.Va. 1, 8, 770 S.E.2d 501, 508
(2015).

                                               4
              I’m not just going off of one single moment or one single test
              or one single clue, I’m looking at the overall picture and the
              totality of the circumstances there with regard to the wrecked
              vehicle, the bloodshot, glassy eyes, the odor of alcohol on his
              breath. He was drinking, yes. Thinking I’m doing the test
              properly with horizontal gaze, I get a fail, and then although I
              didn’t pay attention to time on the PBT, all that comes into my
              factor as to when I’m placing someone into custody.

(Emphasis added.)

              The next and final witness to testify at the OAH hearing was Mr. Winesburg.

He stated that prior to the vehicle accident, he was at a friend’s house watching a football

game that began at 8:00 or 8:30 p.m. Mr. Winesburg admitted that he had consumed “five

or six beers” during the course of the football game, which he estimated lasted until

midnight. After the game ended, Mr. Winesburg attempted to drive home. He testified

that

              I was on my way home, driving through Oglebay. It was below
              freezing that night, the roads were slick so I was driving slowly
              and actually going around the turn right below the Oglebay
              mansion . . . it’s a pretty sharp turn. Several deer actually came
              off the hill. I swerved and put on my brakes and slid into the
              hillside and literally it was a slow motion wreck because of the
              hillside, and I literally toppled over.

              Mr. Winesburg estimated that Deputy Brooks arrived at the scene of the

accident approximately one hour after it occurred. When Deputy Brooks asked if he had

been drinking alcohol, Mr. Winesburg testified that he admitted to having consumed “five

or six beers” that evening. Mr. Winesburg described his initial interaction with Deputy

Brooks as follows:



                                              5
               When I first walked up to [Deputy Brooks] after he arrived on
               the scene, I walked up to him, told him what happened, he
               began asking questions, the typical, did you have anything to
               drink, and truthfully I told him that I did, and I don’t know what
               else he would have asked me at that point. But he, and I quote,
               said, “You seem fine to me, but let’s make sure.”

               At the conclusion of Mr. Winesburg’s testimony, Deputy Brooks was

recalled and testified that he did not recall telling Mr. Winesburg that he “seemed fine”

during their initial interaction.

               The OAH issued a final order on January 19, 2017, affirming the DMV’s

revocation of Mr. Winesburg’s driver’s license. The OAH concluded that based on the

totality of the evidence, Deputy Brooks had “reasonable grounds to believe that [Mr.

Winesburg] had been operating a motor vehicle under the influence of alcohol and that

[Mr. Winesburg] was lawfully arrested for a DUI offense on December 24, 2010.” The

evidence cited in the OAH’s order supporting this conclusion includes: 1) Deputy Brooks

“detected the odor of alcoholic beverage emitting from [Mr. Winesburg’s] breath,” 2) Mr.

Winesburg “exhibited bloodshot glassy eyes,” and 3) Mr. Winesburg’s admission that he

had consumed alcoholic beverages prior to driving his vehicle. The OAH also noted that

Deputy Brooks testified “regarding his observations during the administration of the

[HGN] test . . . as [an] indicator of insobriety.” Finally, the OAH noted that Mr. Winesburg

failed the PBT, but determined that Deputy Brooks did not observe Mr. Winesburg for

fifteen minutes prior to administering the PBT, and “therefore, the result of such test will

not be considered in this matter.”



                                               6
             Regarding the secondary chemical test, the OAH’s order provides:

                    Irrespective of [Mr. Winesburg’s] assertion to [Deputy
             Brooks] that he was not under the influence of alcohol, the
             results of the secondary chemical test . . . reveal that [Mr.
             Winesburg’s] blood alcohol content was .109%, prima facia
             evidence that [Mr. Winesburg] was impaired. Such result also
             renders [Mr. Winesburg’s] counsel’s attempt to attribute the
             indicia of impairment exhibited by [Mr. Winesburg] to factors
             other than [Mr. Winesburg’s] admitted consumption of alcohol
             to be moot.

             Mr. Winesburg appealed the OAH’s order to the circuit court. The circuit

court found that Deputy Brooks had a reasonable, articulable suspicion to initiate an

encounter with Mr. Winesburg. However, the circuit court concluded that Mr. Winesburg

“exhibited no symptoms of impairment whatsoever, a fact conceded by Dep. Brooks.” The

circuit court’s order goes on to consider and reject a number of impairment factors relied

upon by the OAH. First, the circuit court noted that

             Mr. Winesburg had the odor of an alcoholic beverage on his
             person. However, this was not indicative of per se impairment.
             . . . Indeed, the odor of an alcoholic beverage on one’s breath
             can exist in the absence of being under the influence, a fact
             which the deputy himself conceded, and it is not illegal per se
             to drink alcoholic beverages and thereafter operate a motor
             vehicle, another fact he [Deputy Brooks] acknowledged.

             Next, the circuit court determined that “a myriad of innocuous, innocent

reasons can account for glassy eyes, including standing in below freezing weather and

fatigue.” The circuit court’s order notes that Mr. Winesburg’s interaction with Deputy

Brooks occurred “after 3:00 a.m. and he had been standing in the below-freezing cold




                                            7
temperatures for some time.” Thus, the circuit court did not consider Mr. Winesburg’s

glassy, bloodshot eyes to be an indicator of impairment.7

              The circuit court determined that Mr. Winesburg’s speech was normal and

his actions “in walking and standing, were, as a matter of law, not indicative that he was

under the influence of alcohol.” Therefore, according to the circuit court, Mr. Winesburg

should have been “questioned and released” by Deputy Brooks as there was no evidence

supporting Mr. Winesburg’s arrest for DUI. The circuit court ruled that the OAH’s finding

to the contrary was “simply unsubstantiated by the record, constitutes an abuse of

discretion, and is clearly erroneous in light of substantial and reliable evidence to the

contrary.” Based on its conclusion that there was no “lawful evidence” that Mr. Winesburg

was under the influence of alcohol at the time of the accident, the circuit court determined

that Mr. Winesburg was not lawfully arrested. Because a lawful arrest is a predicate to

upholding an order of revocation, the circuit court concluded that the revocation of Mr.

Winesburg’s driver’s license was improper.

              Finally, the circuit court ruled that Mr. Winesburg’s secondary chemical

breath test, in which his BAC was .109, must be excluded for two reasons: 1) “because Mr.




       7
          The circuit court also disputed the OAH’s reliance on the HGN test and ruled that
the test was not properly administered to Mr. Winesburg. It cited Deputy Brooks’ testimony
before the OAH that he could not state whether he correctly administered the test.
Similarly, the court ruled that the PBT was not given in conformity with W.Va. Code §
17C-5-5 and West Virginia C.S.R. § 64-10-5.2(a) which prohibit the test subject from
“drinking or smoking for at least fifteen minutes before conducting the [preliminary] breath
test.” However, the OAH’s order specifically provides that it did not rely on the PBT.

                                             8
Winesburg was not lawfully arrested, any secondary chemical test was not lawfully

administered,” and 2) “the secondary chemical test results must also be discounted when

evaluated contextually.”

              Following entry of the circuit court’s order, the DMV filed the instant appeal.

                             II. STANDARD OF REVIEW

              This Court has previously established the standards for our review of a circuit

court’s order deciding an administrative appeal: “On 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) 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.” Syllabus Point 1, Muscatell v. Cline, 196 W.Va. 588, 474

S.E.2d 518 (1996). Further, Syllabus Point 2 of Muscatell provides: “In cases where the

circuit court has [reversed] the result before the administrative agency, this Court reviews

the final order of the circuit court and the ultimate disposition by it of an administrative

law case under an abuse of discretion standard and reviews questions of law de novo.” Id.

With these standards as guidance, we consider the parties’ arguments.

                                     III. ANALYSIS

              Before examining whether the circuit court erred by reversing the OAH’s

order, we begin our analysis by addressing a troubling aspect of this case. Mr. Winesburg

was arrested for DUI on December 24, 2010. He timely requested a hearing before the

OAH. The OAH hearing occurred on May 29, 2015, over four years after the arrest. This


                                             9
Court is troubled by the extreme delay between the arrest and the OAH hearing.8 The

record does not provide any explanation for this delay. Such delays have the potential to

create substantial harm. For example, an arresting officer may have difficulty recalling the

facts of an arrest that occurred four and a half years ago. Similarly, a driver’s ability to

defend him or herself may be compromised by a four-and-a-half year delay. A witness may

not remember the circumstances surrounding a four-year old incident.

                This Court discussed unreasonable delay in the context of an administrative

proceeding in Frantz v. Palmer, 211 W.Va. 188, 192, 564 S.E.2d 398, 402 (2001):

                       Among the list of guarantees set forth in article III,
                section 17 of our state constitution is the laudatory mandate
                that “justice shall be administered without . . . delay.” W.Va.
                Const. art. III, § 17. Just as circuit court judges “have an
                affirmative duty to render timely decisions on matters properly
                submitted within a reasonable time following their
                submission,” Syl. Pt. 1, in part, State ex rel. Patterson v.
                Aldredge, 173 W.Va. 446, 317 S.E.2d 805 (1984), the


       8
           We note that this Court has held:

                        On appeal to the circuit court from an order of the Office
                of Administrative Hearings affirming the revocation of a
                party’s license to operate a motor vehicle in this State, when
                the party asserts that his or her constitutional right to due
                process has been violated by a delay in the issuance of the order
                by the Office of Administrative Hearings, the party must
                demonstrate that he or she has suffered actual and substantial
                prejudice as a result of the delay. Once actual and substantial
                prejudice from the delay has been proven, the circuit court
                must then balance the resulting prejudice against the reasons
                for the delay.

Syllabus Point 2, Reed v. Staffileno, 239 W.Va. 538, 803 S.E.2d 508 (2017).

                                               10
              obligation to act in a timely fashion is similarly imposed upon
              administrative bodies, as we recognized in syllabus point seven
              of Allen v. State Human Rights Commission, 174 W.Va. 139,
              324 S.E.2d 99 (1984): “[A]dministrative agencies
              performing quasi-judicial functions have an affirmative
              duty to dispose promptly of matters properly submitted.”

(Emphasis added).

              License revocation laws are intended to protect the public. This Court has

previously stated, “[t]he purpose of the administrative sanction of license revocation is the

removal of persons who drive under the influence of alcohol and other intoxicants from

our highways.” Shell v. Bechtold, 175 W.Va. 792, 796, 338 S.E.2d 393, 396 (1985)

(citation omitted). If an arresting officer fails to recall the facts of an arrest because it

occurred years before the OAH hearing, a person who drives under the influence of alcohol

may escape punishment and will not be removed from our highways. Thus, unreasonable

delays between DUI arrests and OAH hearings have the potential to create public harm.

              In the present case, the delay between Mr. Winesburg’s arrest and the OAH

hearing was not raised as an assignment of error, and the parties have not cited any specific

facts that indicate that the delay in this case was prejudicial. Therefore, we proceed to

examine the main issue raised in this appeal—whether the circuit court erred by reversing

the OAH’s order affirming Mr. Winesburg’s driver’s license revocation.

              Our law regarding a circuit court’s review of an administrative order is as

follows:

                     Upon judicial review of a contested case under the West
              Virginia Administrative Procedure Act, Chapter 29A, Article
              5, Section 4(g), the circuit court may affirm the order or

                                             11
             decision of the agency or remand the case for further
             proceedings. The circuit court shall reverse, vacate or modify
             the order or decision of the agency if the substantial rights of
             the petitioner or petitioners have been prejudiced because the
             administrative findings, inferences, conclusions, decisions or
             order are: (1) In violation of constitutional or statutory
             provisions; or (2) In excess of the statutory authority or
             jurisdiction of the agency; or (3) Made upon unlawful
             procedures; or (4) Affected by other error of law; or (5) Clearly
             wrong in view of the reliable, probative and substantial
             evidence on the whole record; or (6) Arbitrary or capricious or
             characterized by abuse of discretion or clearly unwarranted
             exercise of discretion.

Syllabus Point 2, Shepherdstown Volunteer Fire Dep’t v. State ex rel. State of W.Va.

Human Rights Comm’n, 172 W.Va. 627, 309 S.E.2d 342 (1983).

             The DMV argues that the circuit court abused its discretion by concluding

that there was no evidence “which warranted an arrest. Rather than performing its duty to

determine whether there was substantial evidence to support the OAH’s Final Order, the

circuit court systematically discounted every piece of evidence of impairment, . . . failed

to assess the totality of the evidence, and substituted its judgment” for that of the OAH.

After review, we agree with the DMV and find that the circuit court abused its discretion

by failing to consider the totality of the evidence of impairment and by substituting its

judgment for that of the OAH in violation of our established standard of review.

             While the DMV raises a number of assignments of error, the paramount issue

is whether the circuit court erred by reversing the OAH’s conclusion that Mr. Winesburg’s

arrest for DUI was lawful. The OAH is required to make a finding that an arrest for DUI




                                            12
was lawful.9 “To be lawful, the arrest must be supported by probable cause.” Reed v.

Pompeo, 240 W.Va. 255, 262, 810 S.E.2d 66, 73 (2018). This Court has previously

explained that “[p]robable cause to make an arrest without a warrant exists when the facts

and circumstances within the knowledge of the arresting officers are sufficient to warrant

a prudent man in believing that an offense has been committed.” Syllabus Point 2, in

relevant part, State v. Rahman, 199 W.Va. 144, 483 S.E.2d 273 (1996). Further, the United

States Supreme Court has explained: “‘[P]robable cause’ to justify an arrest means facts

and circumstances within the officer’s knowledge that are sufficient to warrant a prudent

person, or one of reasonable caution, in believing, in the circumstances shown, that the

suspect has committed, is committing, or is about to commit an offense.” Michigan v.

DeFillippo, 443 U.S. 31, 37 (1979) (citations omitted).

              Additionally, the Supreme Court has noted that “[t]he probable-cause

standard is incapable of precise definition or quantification into percentages because it

deals with probabilities and depends on the totality of the circumstances.” Maryland v.

Pringle, 540 U.S. 366, 371 (2003) (emphasis added). Indeed, the Supreme Court has

emphasized that our probable cause standard is a “practical, nontechnical conception that




       9
          W.Va. Code § 17C-5A-2(f)(2), in pertinent part, requires the OAH to make
specific findings as to “whether the person was lawfully placed under arrest for an offense
involving driving under the influence of alcohol . . . or was lawfully taken into custody for
the purpose of administering a secondary test.” See also Dale v. Ciccone, 233 W.Va. 652,
658-59, 760 S.E.2d 466, 472-73 (2014).

                                             13
deals with the factual and practical considerations of everyday life on which reasonable

and prudent men, not legal technicians, act.” Id., 540 U.S. at 370.

                Applying the probable cause standard to the present case, we find that the

OAH’s ruling that Deputy Brooks had probable cause to arrest Mr. Winesburg for DUI is

supported by substantial evidence. The OAH assessed the totality of the circumstances

underlying Deputy Brooks’ decision to arrest Mr. Winesburg for DUI. These circumstances

included 1) a single vehicle wreck, 2) Mr. Winesburg’s glassy, bloodshot eyes, 3) the odor

of alcohol detected on his breath, and 4) Mr. Winesburg’s admission that he had consumed

“five or six” beers prior to driving. This Court has previously held that glassy eyes, the

odor of alcohol, and a person’s admission to having consumed alcohol are all relevant

factors in an administrative hearing concerning a driver’s license revocation. See Syllabus

Point 3, White v. Miller, 228 W.Va. 797, 724 S.E.2d 768 (2012).10 We therefore conclude




       10
            Syllabus Point 3 of White v. Miller provides:

                        A driver’s license to operate a motor vehicle in this State
                cannot be administratively revoked solely and exclusively on
                the results of the driver’s horizontal gaze nystagmus test.
                Rather, additional evidence in conjunction with the horizontal
                gaze nystagmus test is required for revocation: for example, the
                results of other field sobriety tests; the results of a secondary
                chemical test; whether the vehicle was weaving on the
                highway; whether the driver admitted consuming an alcoholic
                beverage; whether the driver exhibited glassy eyes or slurred
                speech; and/or whether the odor of an alcoholic beverage was
                detected.



                                                14
that based on the totality of the circumstances Deputy Brooks observed, a prudent person

would believe that a DUI offense was committed.11

              This Court has made clear that “[s]ince a reviewing court is obligated to give

deference to factual findings rendered by an administrative law judge, a circuit court is not

permitted to substitute its judgment for that of the hearing examiner with regard to factual

determinations.” Syllabus Point 1, in part, Cahill v. Mercer County Bd. of Educ., 208 W.Va.

177, 539 S.E.2d 437 (2000). In the present case, the circuit court failed to give deference

to the OAH’s factual finding that, based on the totality of the evidence, Mr. Winesburg

exhibited numerous signs of impairment. Instead, it considered each piece of evidence of

impairment in isolation and determined that Mr. Winesburg “exhibited no symptoms of

impairment whatsoever, a fact conceded by Dep. Brooks.” The record does not support

the circuit court’s statement that Deputy Brooks conceded that Mr. Winesburg “exhibited

no symptoms of impairment.” To the contrary, Deputy Brooks testified that he assessed

the totality of the circumstances and determined that Mr. Winesburg was DUI.




       11
          This Court has previously provided that “[n]either the DUI statutes nor our case
law require a PBT or any particular field sobriety test to establish that a driver was under
the influence for purposes of administrative revocation.” Reed v. Hill, 235 W.Va. at 9, 770
S.E.2d at 509. The OAH did not rely on the PBT because it was not administered in the
correct fashion. Regarding the HGN, the OAH noted that Deputy Brooks testified
“regarding his observations during the administration of the [HGN] test . . . as [an] indicator
of insobriety.” While Deputy Brooks testified that he was unsure whether the HGN test
was properly administered, this Court has explained that a police officer’s failure to satisfy
some requirements for administering an HGN test goes to the weight of the evidence, not
to its admissibility. Dale v. Oakland, 234 W.Va. 106, 763 S.E.2d 434 (2014). Thus, we
find no error with the OAH’s consideration of the HGN test results.

                                              15
              Further, this Court has determined that a circuit court should not consider

each piece of evidence in isolation when reviewing the circumstances leading to a DUI

arrest. In Pompeo, the Court addressed a factual scenario similar to the present case—the

arresting officer testified that the defendant admitted to drinking alcohol prior to driving,

had bloodshot eyes, and had the odor of alcohol on his breath. 240 W.Va. at 262, 810

S.E.2d at 73. The OAH in Pompeo concluded that the totality of the evidence demonstrated

that there was sufficient evidence for the arresting officer to conclude that the defendant

was DUI. Id. However, the circuit court reversed the OAH’s ruling after considering each

indicator of impairment in isolation:

              The circuit court found that “the odor of an alcoholic beverage
              on one’s breath can exist in the absence of being under the
              influence.” As to Mr. Pompeo’s bloodshot eyes, the circuit
              court found that this issue “may be ascribed to any number of
              innocent reasons” and that “[defendant]’s eyes were noted to
              have blood in them and that Patrolman Prager did not believe
              [defendant] to be intoxicated.”
                     ....

                     We find that the circuit court erroneously
              disregarded the evidence of impairment provided by the
              officers’ testimony by giving undue weight to irrelevant
              and speculative evidence and by viewing each piece of
              evidence in isolation, rather than looking at the totality of
              the circumstances. In light of the evidence before the OAH,
              the OAH’s findings are not clearly wrong[.]

240 W.Va. at 262, 810 S.E.2d at 73 (Emphasis added, footnotes omitted).

              As in Pompeo, we conclude that the circuit court erred by giving undue

weight to speculative evidence (“a myriad of innocuous, innocent reasons can account for

glassy eyes, including standing in below freezing weather and fatigue”) and by viewing

                                             16
each piece of evidence in isolation. Instead, per our established standard of review, the

circuit court should have assessed the totality of the evidence underlying the OAH’s finding

that Deputy Brooks had probable cause to arrest Mr. Winesburg for DUI. We find that the

OAH’s finding of probable cause for arrest is supported by substantial evidence. The circuit

court abused its discretion by substituting its judgment for that of the OAH.

              Finally, we find that the circuit court erred by excluding the results of the

secondary chemical breath test. The OAH determined that the “results of the secondary

chemical test . . . reveal that [Mr. Winesburg’s] blood alcohol content was .109%, prima

facia evidence that [Mr. Winesburg] was impaired.” The circuit court disagreed with the

OAH and determined that the secondary chemical breath test results should be excluded

for two reasons: 1) “because Mr. Winesburg was not lawfully arrested, any secondary

chemical test was not lawfully administered,” and 2) “the secondary chemical test results

must also be discounted when evaluated contextually.”

              For the reasons previously stated, we find that Mr. Winesburg was “lawfully

arrested.” Further, the OAH found that Mr. Winesburg’s .109 BAC was prima facie

evidence of impairment. This finding is consistent with W.Va. Code § 17C-5-8(a),12 which

provides, in pertinent part:

                     Upon trial for the offense of driving a motor vehicle in
              this state while under the influence of alcohol, controlled
              substances or drugs, or upon the trial of any civil or criminal


       12
       The 2004 version of W.Va. Code § 17C-5-8 applies to this case. This statute was
amended in 2013.

                                            17
             action arising out of acts alleged to have been committed by
             any person driving a motor vehicle while under the influence
             of alcohol, controlled substances or drugs, evidence of the
             amount of alcohol in the person’s blood at the time of the arrest
             or of the acts alleged, as shown by a chemical analysis of his
             or her blood, breath or urine, is admissible, if the sample or
             specimen was taken within two hours from and after the time
             of arrest or of the acts alleged. The evidence gives rise to the
             following presumptions or has the following effect:
                    ....
                    (3) Evidence that there was, at that time, eight
             hundredths of one percent or more, by weight, of alcohol in his
             or her blood, shall be admitted as prima facie evidence that the
             person was under the influence of alcohol.

             This Court has previously held that “W.Va. Code § 17C-5-8(a) (2004)

(Repl.Vol.2009) allows the admission of evidence of a chemical analysis performed on a

specimen that was collected within two hours of either the acts alleged or the time of the

arrest.” Syllabus Point 5, State v. Miller, 227 W.Va. 395, 709 S.E.2d 750 (2011).13 In the

present case, there is no dispute that the secondary chemical breath test was administered

within two hours of Mr. Winesburg’s arrest. Therefore, we find that the evidence resulting

therefrom was admissible and properly considered by the OAH.

             We find no support for the circuit court’s ruling that this prima facie evidence

that Mr. Winesburg was under the influence of alcohol may be “discounted when evaluated




      13
           We note that W.Va. Code § 17C-5A-2(j) provides “[i]f the Office of
Administrative Hearings finds by a preponderance of the evidence that the person . . . did
drive a motor vehicle while having an alcohol concentration in the person’s blood of eight
hundredths of one percent or more . . . the commissioner shall revoke the person’s
license[.]” (Emphasis added.)

                                            18
contextually.” The OAH determined that Mr. Winesburg wrecked his vehicle, had glassy,

bloodshot eyes, had the odor of alcohol on his breath, admitted to drinking five or six beers

prior to driving, and registered a BAC of .109 on the secondary chemical breath test that

was properly administered after his arrest. Evaluating Mr. Winesburg’s .109 BAC in the

context of these numerous signs of impairment, it is clear that he was DUI and that his

secondary chemical test may not be discounted. In Syllabus Point 2 of Albrecht v. State,

173 W.Va. 268, 314 S.E.2d 859 (1984), this Court held:

                     Where there is evidence reflecting that a driver was
              operating a motor vehicle upon a public street or highway,
              exhibited symptoms of intoxication, and had consumed
              alcoholic beverages, this is sufficient proof under a
              preponderance of the evidence standard to warrant the
              administrative revocation of his driver’s license for driving
              under the influence of alcohol.

              The evidence in the present case, including the events leading up to the arrest

and the result of the secondary chemical breath test, supports the OAH’s ruling that Mr.

Winesburg was DUI on December 24, 2010. Accordingly, we conclude that the circuit

court erred in reversing the OAH’s revocation order.

                                   IV. CONCLUSION

              We reverse the circuit court’s August 17, 2017, order and remand this matter

to the circuit court to reinstate the DMV’s January 20, 2011, order revoking Mr.

Winesburg’s driver’s license.



                                                  Reversed and Remanded With Directions.


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