                               STATE OF WEST VIRGINIA 

                             SUPREME COURT OF APPEALS


Jeffrey J. Corra,
Petitioner Below, Petitioner                                                        FILED
                                                                                 June 15, 2018
vs.) No. 17-0732 (Kanawha County 16-AA-105)                                    EDYTHE NASH GAISER, CLERK
                                                                               SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA
Pat Reed, Commissioner of
The West Virginia Division of
Motor Vehicles,
Respondent Below, Respondent


                                MEMORANDUM DECISION

        Petitioner Jeffrey J. Corra, by counsel Todd W. Reed, appeals the Circuit Court of
Kanawha County’s July 20, 2017, order affirming the decision of the Office of Administrative
Hearings’ to uphold the suspension of his driver’s license. Respondent Pat Reed, Commissioner
of the West Virginia Division of Motor Vehicles, by counsel Janet E. James, filed a response in
support of the circuit court’s affirmation. On appeal, petitioner argues that the circuit court erred
in upholding the final order of the Office of Administrative Hearings (“OAH”) revoking his
driver’s license when that order was contrary to video evidence that demonstrated petitioner was
not intoxicated.

       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.

        In August of 2012, petitioner was     stopped by Vienna Police Sergeant K.L. Parrish and
asked to perform field sobriety tests by      Vienna Police Sergeant B.K. Ingraham. Ultimately,
petitioner was arrested and charged with      driving under the influence (“DUI”). Petitioner was
granted a stay over the suspension of his     driver’s license pending the outcome of his criminal
trial.1

        Petitioner’s administrative hearings regarding the suspension of his driver’s license
occurred in July of 2013 and February of 2014. During these hearings, respondent called
Sergeant Parrish to testify regarding the traffic stop. Sergeant Parrish testified that he noticed
petitioner’s vehicle traveling thirty-five miles per hour in an area where the speed limit was
forty-five miles per hour and observed the vehicle cross the centerline of the roadway as it

       1
           Petitioner was found not guilty of DUI after a jury trial in November of 2013.
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traversed an S-curve. Further, Sergeant Parrish observed the vehicle make a wide radius right
turn and completely cross the center line.2 Sergeant Parrish activated his emergency lights and
initiated the traffic stop in a gravel parking lot, during which he detected an odor of alcohol on
petitioner’s breath, observed that his eyes were red, and noted that his speech was slurred.
Sergeant Parrish asked petitioner to recite the alphabet which petitioner did, but not in the proper
sequence. Sergeant Parrish testified that he contacted Sergeant Ingraham, who was participating
in a DUI patrol, to complete the investigation.

        Respondent called Sergeant Ingraham to testify as to petitioner’s performance of the field
sobriety tests.3 According to Sergeant Ingraham’s testimony, upon meeting petitioner, he noticed
a smell of alcohol on his breath, that his eyes were red and glassy, and that he swayed while
standing. Also, Sergeant Ingraham testified that he noticed the gravel in the parking lot was
larger than average and chose the flattest area that was most suited for testing. Sergeant
Ingraham proceeded to explain and perform the field sobriety tests. First, he asked petitioner to
recite the alphabet and petitioner did so correctly. Second, he performed the horizontal gaze
nystagmus test, during which petitioner exhibited distinct and sustained nystagmus at maximum
deviation in both eyes and a lack of smooth pursuit in both eyes. Additionally, petitioner swayed
back and forth during this test. Sergeant Ingraham explained the walk-and-turn test and
demonstrated the test for petitioner. Petitioner attempted the test and missed the demonstrated
heel-to-toe steps and did not consistently walk a straight line. Finally, Sergeant Ingraham
demonstrated the one-leg stand test and requested petitioner perform the test. Petitioner swayed
while balancing on one leg and set his foot down twice during the test. In Sergeant Ingraham’s
opinion, petitioner failed all three tests. He testified that, following the administration of the field
sobriety tests, he asked petitioner to submit to a preliminary breath test. However, petitioner
refused to blow into the device. At that time, Sergeant Ingraham placed petitioner under arrest
and transported him to the Vienna Police Department. During processing, petitioner complied
with all directives.4 The investigating officer testified that he read the implied consent form to
petitioner; petitioner signed the form and was given a copy of it. Again, petitioner refused to
provide a breath sample.

        Also, petitioner testified that he was not intoxicated on the night of his arrest, but that he
admitted to the officers that he consumed one beer with dinner. With regard to his driving,
petitioner testified that he drove the road regularly and he swerved to avoid a pothole in the road,
which caused his car to go left of center. Additionally, he believed that Sergeant Ingraham was


       2
         This testimony is supported by video evidence that clearly shows petitioner made a wide
right turn that caused his vehicle to be left of the center line.
       3
        Video evidence of these tests was introduced below and provided for review on appeal.
The video evidence supports the officers’ testimony.
       4
        Video evidence of petitioner’s demeanor was introduced before the hearing examiner;
however, the same evidence was not provided on appeal. Petitioner notes in his brief that the
evidence was inadvertently omitted from the materials and that he made arrangements to furnish
the video to the Court. However, there is no record the video was provided and, therefore, it was
unavailable for our review.
                                                   2

the officer that stopped him, not Sergeant Parrish. Regarding the field sobriety tests, petitioner
testified that the gravel in the parking lot inhibited his performance on the tests. Additionally,
petitioner testified that he had multiple knee surgeries and was missing part of his left big toe.5
He was unaware if these ailments affected his performance on the tests. Finally, petitioner
testified that he refused to provide breath samples because he believed he passed the field
sobriety tests. Respondent called Sergeant Parrish as a rebuttal witness and he testified that he
was the officer that initiated the traffic stop of petitioner - not Sergeant Ingraham.

        Following the presentation of all the evidence and testimony, the OAH issued its
“Decision of Hearing Examiner and Final Order of Chief Hearing Examiner” (“final order”) in
October of 2016. The OAH found that sufficient evidence was presented to show that petitioner
drove a motor vehicle in the State of West Virginia while intoxicated and, after being lawfully
arrested, refused to submit to a designated secondary chemical test. Accordingly, the OAH
affirmed the Commissioner’s order revoking petitioner’s driver’s license.

        In November of 2016, petitioner appealed the final order of the OAH to the circuit court.
After reviewing the petition for appeal, the entire record, and the applicable legal authority, the
circuit court affirmed the OAH’s final order by in its July 20, 2017, order. Petitioner now appeals
that order.

       This Court has previously established the following standard of review:

               “On appeal of an administrative order from a circuit court, this Court is
       bound by the statutory standard 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.” Syl. Pt. 1, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518
       (1996).

Syl. Pt. 1, Reed v. Conniff, 236 W.Va. 300, 779 S.E.2d 568 (2015).

         On appeal, petitioner argues that the hearing examiner’s factual findings are contrary to
the weight of the evidence. Specifically, petitioner asserts that the video evidence obtained from
the officers’ surveillance cameras of the field sobriety tests and petitioner’s demeanor during
processing clearly shows that he was not intoxicated. Petitioner argues that this evidence
contradicts the investigating and assisting officers’ testimony that he failed the field sobriety
tests, slurred his speech, and made a wide right turn. Petitioner relies on syllabus point six of
Muscatell, which provides that

              “[w]here there is a direct conflict in the critical evidence upon which an
       agency proposes to act, the agency may not elect one version of the evidence over
       the conflicting version unless the conflict is resolved by a reasoned and articulate
       decision, weighing and explaining the choices made and rendering its decision
       capable of review by an appellate court.”

       5
         Petitioner did not disclose these conditions to the investigating officer before or after the
field sobriety tests.
                                                  3

Muscatell, 196 W.Va. at 590, 474 S.E.2d at 520, Syl. Pt. 6. Petitioner argues that the
contradictory evidence was arbitrarily disregarded in this case and, therefore, the OAH’s final
decision is clearly wrong. We disagree.

        The circuit court’s affirmation of the OAH’s final order must be affirmed because the
underlying factual determinations are not clearly wrong. Petitioner’s intoxication is a question of
fact. The responding officers’ testified that petitioner failed the field sobriety tests, and the video
evidence supports that testimony. The video evidence showed petitioner: swaying back and forth
while the investigating officer performed the nystagmus test; setting his lifted foot down twice
during the one leg stand test; and clearly failing to walk a straight line after turning during the
walk-and-turn test. Faced with this evidence of petitioner’s performance, we cannot find that the
hearing examiner’s findings were clearly wrong.

        Further, the hearing examiner correctly resolved all conflicting testimony in the final
order. Specifically, the hearing examiner discussed petitioner’s perceived success on the field
sobriety tests and weighed it against the contradictory video evidence and petitioner’s lack of
experience and training with the tests. Further, the final order discounted petitioner’s testimony
after he failed to correctly recall certain facts, such as which officer initiated the traffic stop. “We
cannot overlook the role that credibility places in factual determinations, a matter reserved
exclusively for the trier of fact. We must defer to the [fact finder’s] credibility determinations
and inferences from the evidence. . . .” Martin v. Randolph County Bd. of Educ., 195 W.Va. 297,
306, 465 S.E.2d 399, 408 (1995). We find that the aforementioned final order resolved all factual
conflicts through a reasoned and articulate decision. Accordingly, we find that petitioner is
entitled to no relief.

        Finally, the OAH predicated revocation of petitioner’s driver’s license, in part, on his
refusal to submit to a secondary chemical test and the circuit court affirmed this finding. On
appeal, petitioner does not challenge the finding that he refused to submit to a secondary
chemical test. Pursuant to West Virginia Code § 17C-5-7, petitioner’s license is subject to
revocation due to his refusal to submit to this test.6 This revocation is independent of petitioner’s
revocation for driving under the influence. See Reed v. Hall, 235 W.Va. 322, 773 S.E.2d 666
(2015) (holding that, although his license revocation for DUI was improper, Mr. Hall’s refusal to
submit to a secondary chemical test warranted license revocation.) Petitioner failed to challenge
this finding and, as a result, effectively waived this issue. Accordingly, this holding is further
affirmed.

       For the foregoing reasons, the circuit court’s July 20, 2017, order affirming the decision
of the Office of Administrative Hearings revoking petitioner’s driver’s license is hereby
affirmed.

       6
           West Virginia Code § 17C-5-7 provides as follows:

               [f]or the first refusal to submit to the designated secondary chemical test,
       the commissioner shall make and enter an order revoking the person’s license to
       operate a motor vehicle in this state for a period of one year or forty-five days,
       with an additional one year of participation in the Motor Vehicle Alcohol Test
       and Lock Program. . . .
                                                   4

                                                                         Affirmed.

ISSUED: June 15, 2018

CONCURRED IN BY:

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

Justice Allen H. Loughry II, suspended and therefore not participating




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