                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Commissioner of the West Virginia                                                 FILED
Division of Motor Vehicles,                                                      March 28, 2014
                                                                             RORY L. PERRY II, CLERK
Petitioner Below, Petitioner                                               SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA

vs) No. 13-0501 (Kanawha County 12-AA-111)

Gerald Brewer,

Respondent Below, Respondent



                              MEMORANDUM DECISION
       Petitioner Commissioner of the West Virginia Division of Motor Vehicles (“DMV”), by
counsel Elaine L. Skorich, appeals the Circuit Court of Kanawha County’s final order affirming
the decision of DMV’s hearing examiner that there was insufficient evidence that respondent
operated a vehicle under the influence of alcohol. Respondent Gerald Brewer, by counsel J.
Bryan Edwards, filed a response. DMV filed a reply.

        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, the record presented,
and the applicable law, the Court finds that the circuit court erred by affirming the hearing
examiner’s decision that erroneously concluded that DMV failed to establish the legitimacy of
the investigatory stop of respondent’s vehicle. 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 opinion.

        On October 9, 2010, respondent was arrested and charged with driving under the
influence of alcohol and proximately causing bodily injury to another person. The arrest
stemmed from respondent’s vehicle striking State Police Trooper J.W. Newman, who was
directing traffic following a West Virginia University football game in Morgantown.1 Trooper
Newman was directing traffic with Trooper I.M. Harmon at the time of the incident. A third
officer, Trooper Jason R. Celapino (“Investigating Officer”) was dispatched to take over the
investigation and arrived at the scene approximately thirty minutes after the incident.



       1
         According to DMV, Trooper Newman experienced pain and discomfort, and was
transported to a nearby hospital for examination and treatment. Respondent counters that based
on the medical record presented at the hearing, Trooper Newman did not suffer any injury as a
result of the incident.


                                                1

        The Investigating Officer completed the West Virginia DUI Information Sheet based
mostly on the information he learned from Trooper Harmon at the scene.2 Specifically, he noted
that Trooper Harmon administered three field sobriety tests to respondent and respondent failed
all three tests. In addition, Trooper Harmon reported that respondent failed the preliminary
breath test, which showed that respondent’s blood alcohol concentration was 0.138 percent,
exceeding the legal limit of 0.08 percent.3 Trooper Harmon noted that he detected the smell of
alcohol on respondent’s breath and that respondent had glassy eyes. Trooper Harmon noted,
however, that respondent was normal exiting his vehicle, walking to the roadside, and standing,
and that his speech was polite.

        After being briefed by Trooper Harmon, personally detecting the smell of alcohol on
respondent’s breath, and witnessing that respondent’s eyes were “slightly glassy,” the
Investigating Officer arrested respondent and transported him to the State Police detachment in
Morgantown for the purpose of administering a secondary chemical test of respondent’s breath.
The result of the secondary chemical test showed that respondent’s blood alcohol concentration
was 0.154 percent. During a post-arrest interview, respondent stated that he had consumed four
beers, but did not specify when he had done so. Respondent denied in his statement that he was
driving under the influence of alcohol.

         DMV sent respondent an Order of Revocation of respondent’s driving privileges on
November 9, 2010. Respondent timely appealed, and the Office of Administrative Hearings
conducted a hearing on May 4, 2011. At the hearing, DMV called the Investigating Officer to
testify, but did not call Trooper Harmon or Trooper Newman, prompting respondent to object at
the beginning of the hearing to the admission of the DUI Information Sheet on hearsay grounds.4
The Investigating Officer testified that although he did not observe respondent strike Trooper
Newman with his vehicle or the field sobriety tests administered to respondent by Trooper
Harmon, he personally detected alcohol on respondent’s breath and observed that his eyes were
“slightly glassy.” Respondent did not testify at the administrative hearing or present any
witnesses on his behalf.

       In his August 8, 2012, decision, the hearing examiner sustained respondent’s objection to
the admission of the DUI Information Sheet. He concluded that while the Investigating Officer
completed the form, he obtained the majority of his information from Trooper Harmon, who was
not present at the hearing to testify or to be cross-examined by respondent. The hearing examiner

       2
        The Investigating Officer testified that he also spoke with Trooper Newman at the scene,
who confirmed that he was struck by respondent’s vehicle. Additionally, according to the
Investigating Officer’s testimony, respondent admitted to him at the scene that he was driving
the vehicle on his way home from the football game.
       3
           West Virginia Code § 17C-5-8(a)(3).
       4
        The hearing examiner marked the document for identification and took respondent’s
motion under advisement. Respondent’s counsel lodged hearsay objections throughout the
Investigating Officer’s testimony. The hearing examiner “noted” the objections, but allowed the
Investigating Officer’s testimony to continue.
                                                 2

found that DMV failed to demonstrate that the Investigating Officer had reasonable grounds to
believe respondent was, in fact, under the influence of alcohol. The hearing examiner stated as
follows:

                West Virginia Code § 17C-5A-2(f) mandates specific findings that must
        be made by the Hearing Examiner when reaching a decision regarding whether
        the administrative revocation of an individual’s driving privileges for driving
        under the influence should be upheld. In the instant case, the record is absent any
        credible testimony regarding the articulable reasonable suspicion for the traffic
        stop of the Petitioner’s motor vehicle.

                The Respondent’s [DMV’s] failure to establish the legitimacy of the initial
        investigative stop of the motor vehicle driven by Petitioner on the date of the
        stated offense precludes the consideration of evidence obtained incidental to that
        stop. Such evidence is crucial to support a determination that probable cause
        existed to believe that the Petitioner had been driving a motor vehicle in this State
        while under the influence of alcohol and that he was lawfully arrested for the
        offense.

        Consequently, the hearing examiner found that the only evidence to sustain the arrest was
the smell of alcohol on respondent’s breath and his “slightly glassy” eyes as personally observed
by the Investigating Officer. The hearing examiner reversed the Order of Revocation and
concluded that “[t]here was insufficient evidence that the Investigating Officer had probable
cause to believe that [respondent] drove a motor vehicle in this State while under the influence of
alcohol” and that “[t]here was insufficient evidence to prove that [respondent] was lawfully
arrested for an offense described in West Virginia Code § 17C-5-2.”5

        DMV appealed the hearing examiner’s decision to the circuit court. By Final Order
entered on February 28, 2013, the circuit court affirmed the hearing examiner’s decision and
agreed with the hearing examiner’s disregard for the evidence contained in the DUI Information
Sheet. The circuit court made no mention of the results of the secondary chemical test. From this
order, DMV appeals to this Court.

        The standard of review for a license revocation proceeding 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 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

        5
            The Chief Hearing Examiner approved the hearing examiner’s decision on August 14,
2012.


                                                 3

       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.”

Syl. Pt. 2, Shepherdstown Volunteer Fire Dep’t v. State ex rel. State of W.Va. Human Rights
Commission, 172 W.Va. 627, 309 S.E.2d 342 (1983). While the court must give deference to the
administrative agency’s factual findings and review those findings under a clearly wrong
standard, the court applies a de novo standard of review to the agency’s conclusions of law.
Muscatell v. Cline, 196 W.Va. 588, 595, 474 S.E.2d 518, 525 (1996). Finally, “[e]videntiary
findings made at an administrative hearing should not be reversed unless they are clearly
wrong.” Syl. Pt. 1, Francis O. Day Co., Inc. v. Director, Div. of Environmental Protection, 191
W.Va. 134, 443 S.E.2d 602 (1994).

         On appeal, DMV argues (1) that the circuit court erred by ignoring the results of the
secondary chemical test, and (2) that the circuit court was clearly wrong in concluding as a
matter of law that respondent did not drive under the influence of alcohol.6 Based upon our
review of the record, it is clear that the hearing examiner and the circuit court disregarded the
evidence that respondent’s vehicle was stopped after he struck an officer who was directing
traffic. Under such a circumstance, we find that the officers on the scene were justified in
stopping respondent’s vehicle. We, therefore, find the hearing examiner’s determination that
“DMV failed to establish the legitimacy of the initial investigative stop” of respondent’s vehicle
to be clearly erroneous.

        Because we find the investigatory stop to be legitimate, we must then turn to examine the
evidence that respondent was driving under the influence. In this respect, the hearing examiner
and the circuit court disregarded evidence that respondent was under the influence, except for the
evidence that respondent’s breath smelled of alcohol and that his eyes were “slightly glassy.”
Stated another way, the other evidence of respondent’s intoxication – including that respondent
failed the preliminary breath test, failed the field sobriety tests, and failed the secondary chemical
test with a result of 0.154 percent – was wholly disregarded. We find this conclusion to be
clearly erroneous and reversal is warranted.

       West Virginia Code § 29A-5-2(b) provides as follows:

       All evidence, including papers, records, agency staff memoranda and documents
       in the possession of the agency, of which it desires to avail itself, shall be offered
       and made a part of the record in the case, and no other factual information or

       6
        In its reply brief, DMV argues for the first time that the hearing examiner’s and circuit
court’s decisions are tantamount to an improper application of the exclusionary rule, and
therefore, run afoul of our recent decisions in Miller v. Toler, 229 W.Va. 302, 729 S.E.2d 137
(2012) and Miller v. Smith, 229 W.Va. 478, 729 S.E.2d 800 (2012). Because we reverse on other
grounds, we need not address DMV’s argument in this regard.


                                                  4

       evidence shall be considered in the determination of the case. Documentary
       evidence may be received in the form of copies or excerpts or by incorporation by
       reference.

        First, from our review of the record, it does not seem genuinely disputed that respondent
was driving the vehicle that struck Trooper Newman and that was the basis for stopping
respondent’s vehicle. Second, with respect to the results of the secondary chemical test that was
personally administered by the Investigating Officer and that revealed respondent’s blood
alcohol content was almost double the legal limit, the circuit court failed to even acknowledge
this evidence. Third, in the context of driver’s license revocation proceedings, we have held that
the statement of an arresting officer is admissible under West Virginia Code § 29A-5-2. Syl. Pt.
3, Crouch v. W.Va. Div. of Motor Vehicles, 219 W.Va. 70, 631 S.E.2d 628 (2006).7 In Crouch,
we reinstated a license revocation where the circuit court determined that the statement of an
arresting officer should not have been admitted and reversed the revocation. Ms. Crouch, like the
respondent in the present case, contended that admission of the officer’s written statement in the
administrative hearing violated the rules of evidence that apply to DMV license revocation
proceedings pursuant to West Virginia Code § 29A-5-2(a).8 This Court held that

       [a]lthough W.Va. Code § 29A-5-2(a) has made the rules of evidence applicable to
       DMV proceedings generally, W.Va. Code § 29A-5-2(b) [footnote omitted] has
       carved out an exception to that general rule in order to permit the admission of
       certain types of evidence in administrative hearings that may or may not be
       admissible under the Rules of Evidence. [footnote omitted]. Moreover, inasmuch
       as we view W.Va. Code § 29A-5-2(a) as a statute pertaining to the application of
       the Rules of Evidence to administrative proceedings generally, while W.Va. Code
       § 29A-5-2(b) specifically addresses the admission of particular types of evidence,
       W.Va. Code § 29A-5-2(b) would be the governing provision.

       7
         In Crouch, we also pointed out that the document’s admissibility does not preclude its
contents from being challenged; rather, the admission creates a rebuttable presumption of its
accuracy. Id. at 76 n.12, 631 S.E.2d at 634 n.12. In the present case, while respondent cross-
examined the Investigating Officer regarding the incident and the reliability of the preliminary
breath test, respondent offered no testimony of his own to rebut the presumption that the contents
of the DUI Information Sheet were accurate.
       8
           West Virginia Code § 29A-5-2(a) states:

       In contested cases irrelevant, immaterial, or unduly repetitious evidence shall be
       excluded. The rules of evidence as applied in civil cases in the circuit courts of
       this state shall be followed. When necessary to ascertain facts not reasonably
       susceptible of proof under those rules, evidence not admissible thereunder may be
       admitted, except where precluded by statute, if it is of a type commonly relied
       upon by reasonably prudent men in the conduct of their affairs. Agencies shall be
       bound by the rules of privilege recognized by law. Objections to evidentiary
       offers shall be noted in the record. Any party to any such hearing may vouch the
       record as to any excluded testimony or other evidence.
                                                 5

Crouch, 219 W.Va. at 75, 631 S.E.2d at 633.9 See also, Dale v. Odum, __ W.Va. __, __ S.E.2d
__, 2014 WL ------, slip op. (Nos. 12-1403 and 12-1509, Feb. 11, 2014) (relying on Crouch to
reinstate a license revocation where the driver argued that the evidence contained in the DUI
Information Sheet was inadmissible hearsay).

        Based on our holding in Crouch and under the facts and circumstances presented in this
case, we believe the hearing examiner and the circuit court were clearly wrong to wholly
disregard the evidence that while driving a vehicle in this state, respondent struck a State Police
Trooper who was directing traffic, thus establishing a valid reason for the stop of respondent’s
vehicle; that respondent’s breath smelled of alcohol; that his eyes were glassy or “slightly
glassy;” that respondent failed three sobriety tests; that respondent failed a preliminary breath
test; and that respondent failed a secondary chemical test, all of which was sufficient to establish
by a preponderance of the evidence that respondent drove a vehicle in this state while under the
influence of alcohol.

        For the foregoing reasons, we reverse the Final Order of the Circuit Court of Kanawha
County entered on February 28, 2013, and remand the matter to the circuit court for an order
reinstating the November 9, 2010, Order of Revocation.

                                                                            Reversed and remanded.

ISSUED: March 28, 2014

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




       9
           In addition, we stated that the document would nevertheless be admissible under Rule
803(8)(C), which provides an exception to the hearsay rule for “[r]ecords, reports, statements, or
data compilations, in any form, of public offices or agencies, setting forth . . . (C) in civil actions
. . . , factual findings resulting from an investigation made pursuant to authority granted by law,
unless the sources of information or other circumstances indicate lack of trustworthiness.”
Crouch, 219 W.Va. at 75 n.10, 631 S.E.2d at 633 n.10. Respondent put forth no evidence that
impugned the trustworthiness of the source of information in the DUI Information Sheet.
                                                  6

