        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                             September 2017 Term
                               _______________                         FILED

                                  No. 16-0132                      October 12, 2017

                                                                        released at 3:00 p.m.
                                _______________                       RORY L. PERRY II, CLERK

                                                                    SUPREME COURT OF APPEALS

                                                                         OF WEST VIRGINIA

                            PATRICIA S. REED,

                   Commissioner, Division of Motor Vehicles,

                                  Petitioner


                                       v.

                                GEORGE ZIPF,

                                 Respondent


      ____________________________________________________________

               Appeal from the Circuit Court of Kanawha County

                   The Honorable Jennifer F. Bailey, Judge

                          Civil Action No. 14-AA-113


                        REVERSED AND REMANDED


      ____________________________________________________________

                           Submitted: October 4, 2017

                             Filed: October 12, 2017


Patrick Morrisey, Esq.                      William O. Merriman, Jr., Esq.
Attorney General                            Parkersburg, West Virginia
Janet E. James, Esq.                        Counsel for the Respondent
Senior Assistant Attorney General
Charleston, West Virginia
Counsel for the Petitioner


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



             1.      “A person who wishes to challenge official compliance with and

adherence to sobriety checkpoint operational guidelines shall give written notice of that

intent to the commissioner of motor vehicles prior to the administrative revocation

hearing which is conducted pursuant to W.Va.Code § 17C–5A–2.” Carte v. Cline, 194

W.Va. 233, 460 S.E.2d 48 (1995).

             2.      “In an administrative hearing conducted by the Division of Motor

Vehicles, a statement of an arresting officer, as described in W. Va. Code § 17C–5A–1(b)

(2004) (Repl.Vol.2004), that is in the possession of the Division and is offered into

evidence on behalf of the Division, is admissible pursuant to W. Va. Code § 29A–5–2(b)

(1964) (Repl.Vol.2002).” Crouch v. W.Va. Div. of Motor Vehicles, 219 W.Va. 70, 631

S.E.2d 628 (2006).




                                            i
Justice Ketchum:

              George Zipf was arrested at a sobriety checkpoint for driving under the

influence of alcohol. Based on his arrest, the Department of Motor Vehicles [DMV]

revoked his driver’s license. Mr. Zipf objected to his driver’s license revocation, and he

requested a hearing before the Office of Administrative Hearings [OAH].

              The OAH rescinded Mr. Zipf’s driver’s license revocation because it found

insufficient evidence that his DUI arrest was lawful. After the DMV petitioned the

circuit court for an appeal, the circuit court upheld the OAH’s order.

              We find that the circuit court erred in upholding the OAH’s order because

there was sufficient evidence that Mr. Zipf’s DUI arrest was lawful. Therefore, we

reverse the circuit court and remand this case to the circuit court for reinstatement of the

DMV’s order revoking Mr. Zipf’s driver’s license.

                                  I.

                 FACTUAL AND PROCEDURAL BACKGROUND



              On July 28, 2012, Mr. Zipf was stopped at a sobriety checkpoint conducted

by the Vienna Police Department. According to Mr. Zipf’s DUI Information Sheet, the

officer who stopped him, Officer D.W. Lindsey, observed an odor of an alcoholic

beverage and that Mr. Zipf’s speech was slurred. Mr. Zipf was directed to exit his

vehicle and walk to a separate area designated for field sobriety testing, which was

conducted by another officer, J.A. Cole.

              Officer Cole administered a series of field sobriety tests and a preliminary

breath test on Mr. Zipf. After Mr. Zipf failed all of these tests, Officer Cole arrested him

                                             1

for DUI and transported him to the Vienna Police Department. At the police department,

Mr. Zipf failed a breath test administered to him almost two hours after he was stopped at

the checkpoint.

              Based on his arrest, the DMV revoked Mr. Zipf’s driver’s license. He

objected to the revocation and requested a hearing before the OAH. On his hearing

request form, he marked that he wished to challenge the “Secondary chemical test of the

blood, breath, or urine” and the “Sobriety checkpoint operational guidelines.”

              Two members of the Vienna Police Department testified at Mr. Zipf’s OAH

hearing: Sergeant K.L. Parrish, who supervised the sobriety checkpoint; and Officer

Cole, who conducted the field sobriety tests on Mr. Zipf and arrested him. Officer

Lindsey, who stopped Mr. Zipf at the sobriety checkpoint, was absent from the OAH

hearing.

              Sergeant Parrish testified as to the manner in which the Vienna Police

Department conducted the sobriety checkpoint.         For example, the location of the

checkpoint was selected on the basis of traffic volume, accident data, alcohol-related

arrests, and visibility to drivers and officers. Sergeant Parrish stated that the Vienna

Police Department erected signs notifying drivers of the checkpoint, and if a driver did

not wish to proceed through the checkpoint, he or she had opportunities to turn around

and avoid the checkpoint without being pursued by an officer.          As to drivers who

proceeded through the checkpoint, officers were directed to stop every car to check for

signs of impairment. Drivers who exhibited signs of impairment were to be detained for

further investigation; everyone else was to be released as soon as possible.

                                             2

               Finally, Sergeant Parrish testified that he had a written copy of the sobriety

checkpoint guidelines on his person while he was on the witness stand. Mr. Zipf never

contested the correctness of Sergeant Parrish’s testimony that the Vienna Police

Department complied with its guidelines, presented evidence or argued that the

guidelines were not followed in any way, or requested that he be allowed to review the

guidelines.

               Officer Cole testified regarding his interaction with Mr. Zipf leading up to

the DUI arrest.     He conducted a series of field sobriety tests after Officer Lindsey

detected signs that Mr. Zipf may have been driving impaired. After Mr. Zipf failed all of

these tests, Officer Cole arrested him for DUI, transported him to the Vienna Police

Department, and at the police department, he administered a breath test. Mr. Zipf also

failed the breath test.

               In addition, Mr. Zipf’s DUI Information Sheet was submitted into evidence.

The DUI Information Sheet lists Officer Lindsey as a witness to Mr. Zipf’s driving under

the influence, and it states that Officer Lindsey observed “slurred speech” and “an odor

of alcoholic beverages” coming from Mr. Zipf.

               After the hearing, the OAH rescinded Mr. Zipf’s driver’s license revocation

because it found insufficient evidence that his DUI arrest was lawful. The OAH based its

decision on two grounds: (1) the sobriety checkpoint guidelines were not submitted into

evidence; and (2) the officer who stopped Mr. Zipf did not testify at the OAH hearing on

why he suspected Mr. Zipf drove under the influence of alcohol.



                                              3

             The DMV filed a petition with the circuit court to appeal the OAH order.

The circuit court denied the DMV’s petition, upheld the OAH’s order, and adopted the

OAH’s reasoning on whether there was sufficient evidence that Mr. Zipf’s arrest was

lawful. The DMV now appeals the circuit court’s order denying its petition for appeal.

                                        II.

                                STANDARD OF REVIEW



             We are asked to review a circuit court order affirming an administrative

decision by the OAH. We have held:

                     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 review 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.1



                                           III.

                                        ANALYSIS


             The circuit court found insufficient evidence that Mr. Zipf’s DUI arrest was

lawful because: (a) the sobriety checkpoint guidelines were not submitted into evidence;

and (b) the officer who stopped Mr. Zipf did not testify on why he suspected Mr. Zipf

had been driving under the influence.




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


                                             4

                           A. The sobriety checkpoint guidelines

              The DMV argues that the circuit court erred by finding that it was required

to submit the sobriety checkpoint guidelines into evidence in order to show that Mr.

Zipf’s arrest was lawful. In its order, the circuit court stated, “in a case where the validity

of a sobriety checkpoint has been challenged, the written regulations themselves should

be submitted into evidence.” The circuit court did not address Mr. Zipf’s failure to

challenge the validity of the sobriety checkpoint.

              The DMV acknowledges that Mr. Zipf provided the DMV with prehearing,

written notice that he intended to challenge the sobriety checkpoint guidelines, but it

asserts he did not follow through on his stated intent by making this challenge at his OAH

hearing.   The DMV presented testimony by Sergeant Parrish, who supervised the

checkpoint at which Mr. Zipf was arrested. Sergeant Parrish testified in detail regarding

Vienna Police Department’s compliance with its sobriety checkpoint guidelines,

including the selection of its location, advance notice of the checkpoint to the public, and

how officers were instructed to interact with drivers.        Mr. Zipf did not contest the

correctness of Sergeant Parrish’s testimony that the Vienna Police Department complied

with its guidelines, present argument or argue that the guidelines were not complied with

in any way, or request that he be allowed to review the guidelines. Because of Mr. Zipf’s

silence on this subject, the DMV argues that the guidelines were not necessary to resolve

any issue that Mr. Zipf disputed at his hearing, and they were not required to be

submitted into evidence.



                                              5

             The DMV was not required to submit the sobriety checkpoint guidelines

into evidence merely because Mr. Zipf provided prehearing notice that he intended to

challenge the guidelines. In Carte v. Cline,2 we addressed how notice of a driver’s intent

to challenge sobriety checkpoint guidelines affects the DMV’s burden at a driver’s

license revocation hearing:

                    [A] more viable and preferable alternative is to require
             a person who wishes to challenge official compliance with
             and adherence to sobriety checkpoint operational guidelines
             to give written notice of that intent to the commissioner of
             motor vehicles prior to the administrative revocation
             hearing[.] . . . The State is thereby afforded an opportunity to
             have the appropriate law enforcement officers present
             testimony or other evidence of compliance with standard
             operating procedures when noncompliance is alleged by the
             person whose license has been revoked.3

             In Carte, where the driver asserted that officers did not comply with

sobriety checkpoint guidelines, we found insufficient evidence of compliance because no

officer at the OAH hearing was able to fully testify on that subject, and the DMV

presented no other evidence on that issue.4




             2
                 194 W.Va. 233, 460 S.E.2d 48 (1995).
             3
               Carte, 194 W.Va. at 239, 460 S.E.2d at 48 (emphasis and footnote added).
In accordance with our Carte Opinion, the OAH promulgated an administrative rule
requiring drivers who intend to challenge compliance with sobriety checkpoint guidelines
to provide the DMV notice of his or her intent, or else the challenge is waived. W.Va.
Code R. § 105-1-10.2(c)
             4
                 Carte, 194 W.Va. at 238-39, 460 S.E.2d at 53-54.


                                              6

              Clearly then, the DMV must be prepared to present testimony or other

evidence of compliance with sobriety checkpoint guidelines when a driver provides the

DMV with timely, written and otherwise proper notice that he or she intends to challenge

the sobriety checkpoint guidelines. But we have never said that the DMV is required to

present both testimony and documentary evidence, such as the written guidelines, merely

because a driver notifies the DMV he or she may challenge the sobriety checkpoint

guidelines at the OAH hearing.

              Here, the DMV presented testimony by Sergeant Parrish, who oversaw the

sobriety checkpoint at which Mr. Zipf was arrested. Sergeant Parrish testified in detail

regarding his police department’s compliance with its sobriety checkpoint guidelines,

including the location of the checkpoint, advance notice to the public, and how officers

were to interact with drivers. Therefore, the DMV satisfied its burden under Carte to be

prepared to submit testimony or other evidence on Vienna Police Department’s

compliance with its sobriety checkpoint guidelines on the night of Mr. Zipf’s arrest.

              The only case, revealed by this Court’s research, wherein we required that

the sobriety checkpoint guidelines be submitted into evidence at a driver’s license

revocation hearing is White v. Miller.5 In that case, the driver repeatedly requested the

sobriety checkpoint guidelines for his review, and he disputed the correctness of the




              5
                  228 W.Va. 797, 724 S.E.2d 768 (2012).


                                             7

officer’s testimony that his police department conducted its sobriety checkpoint in

compliance with the guidelines.6 As we observed:

                    One matter in controversy during the administrative
             hearing, for example, was whether Sergeant Williams’ email
             to the media concerning the MacCorkle Avenue checkpoint
             sufficiently alerted motorists in compliance with police
             guidelines, that the designated alternative route would be
             along Kanawha Boulevard.           Without the standardized,
             predetermined guidelines, such issues cannot be resolved.
             Therefore, the finding of the Commissioner that Sergeant
             Williams set up the checkpoint in accordance with the
             standardized guidelines is clearly wrong.7

Thus, our holding in White hinged on the fact that the sobriety checkpoint guidelines

were necessary to resolve issues that the driver disputed at his OAH hearing.

             We decline to extend our holding in White to this case, where Mr. Zipf did

not contest the correctness of Sergeant Parrish’s testimony that the Vienna Police

Department complied with its guidelines, present evidence or argue that the guidelines

were not followed in any way, or request that he be allowed to review the guidelines.

Simply, the sobriety checkpoint guidelines were not necessary to resolve any issue that

Mr. Zipf put into issue at his OAH hearing. Therefore, the sobriety checkpoint guidelines

were not required to be submitted into evidence to show that Mr. Zipf’s DUI arrest was

lawful. The circuit court erred by finding otherwise.




             6
                 White, 228 W.Va. at 807-08, 724 S.E.2d at 778-79.
             7
                 White, 229 W.Va. at 808, 724 S.E.2d at 779.


                                             8

                    B. The testimony of the officer who stopped Mr. Zipf

              The circuit court also found insufficient evidence that Mr. Zipf’s arrest was

lawful because there was “an absence of any information as to what criteria Officer

Lindsey [the stopping officer] utilized in determining that [Mr. Zipf] should be detained

for further investigation.”

              Despite the circuit court’s assertion, Mr. Zipf’s DUI Information Sheet was

part of the record before the OAH, and it revealed that Officer Lindsey observed “slurred

speech” and an “odor of alcoholic beverages” coming from Mr. Zipf. On the admission

of a DUI Information Sheet as evidence in a driver’s license revocation hearing, we have

held:

                     In an administrative hearing conducted by the Division
              of Motor Vehicles, a statement of an arresting officer as
              described in W.Va. Code § 17C-5A-1(b) (2004) (Repl. Vol.
              2004), that is in the possession of the Division and is offered
              into evidence on behalf of the Division, is admissible
              pursuant to W.Va. Code § 29A-5-2(b) (1964) (Repl. Vol.
              2002).8

              In a similar case, Dale v. Odum,9 the driver argued that the stopping officer

was required to testify at his OAH hearing, even though the stopping officer’s

observations were recorded on the DUI Information Sheet. We rejected this argument,

stating:


              8
               Syl. Pt. 3, Crouch v. W.Va. Div. of Motor Vehicles, 219 W.Va. 70, 631
S.E.2d 628 (2006).
              9
                  233 W.Va. 601, 760 S.E.2d 415 (2014).


                                             9

                     Although there was no testimonial evidence [by the
             stopping officer] . . . our review of the record shows that
             documentary evidence was submitted during the hearing that
             established that the stop of Mr. Doyle’s vehicle by Officer
             Anderson was valid. In that regard, the statement of the
             arresting officer/DUI Information Sheet, which was made
             part of the record, indicated that Mr. Doyle’s vehicle was
             stopped because of “Failure to Obey Traffic Control Device.”
             . . . .Consequently, there was unrebutted evidence admitting
             during the administrative hearing that established a valid stop
             of Mr. Doyle’s vehicle, and the hearing examiner’s finding to
             the contrary was clearly wrong.10

             We find no meaningful distinction between this case and Dale. Therefore,

it was error to rescind the revocation of Mr. Zipf’s driver’s license because the officer

who stopped him did not testify at the OAH hearing.

                                         IV.

                                     CONCLUSION



             The circuit court erred by finding that the sobriety checkpoint guidelines

and the stopping officer’s testimony were required to show that Mr. Zipf’s DUI arrest

was lawful. Mr. Zipf did not contest the correctness of Sergeant Parrish’s testimony that

the Vienna Police Department complied with its sobriety checkpoint guidelines, present

evidence or argue that the guidelines were not followed in any way, or request that he be

allowed to review the guidelines. In addition, the reasons the stopping officer suspected

that Mr. Zipf drove under the influence were in Mr. Zipf’s DUI Information Sheet, which




             10
                  Dale, 233 W.Va. at 608, 760 S.E.2d at 422.


                                            10

was in the record before the OAH. We reverse the circuit court and remand this case to

the circuit court to reinstate the DMV order revoking Mr. Zipf’s driver’s license.



                                                                 Reversed and Remanded.




                                            11

