         IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA 


                                  January 2018 Term                         FILED 

                                  _______________
                                                                       February 8, 2018 

                                                                           released at 3:00 p.m.
                                    No. 17-0175                        EDYTHE NASH GAISER, CLERK

                                                                       SUPREME COURT OF APPEALS

                                  _______________                           OF WEST VIRGINIA



                   PATRICIA S. REED, COMMISSIONER, 

              WEST VIRGINIA DIVISION OF MOTOR VEHICLES, 

                       Respondent Below, Petitioner 


                                          v.

                                JOSEPH D. POMPEO, 

                             Petitioner Below, Respondent 


      ____________________________________________________________

                   Appeal from the Circuit Court of Ohio County

                       The Honorable David J. Sims, Judge

                            Civil Action No. 16-C-158 


                         REVERSED AND REMANDED 


      ____________________________________________________________

                             Submitted: January 10, 2018
                               Filed: February 8, 2018


Patrick Morrisey, Esq.                         Robert G. McCoid, Esq. 

Attorney General                               McCamic, Sacco & McCoid, P.L.L.C.

Janet E. James, Esq.                           Wheeling, West Virginia 

Assistant Attorney General                     Counsel for the Respondent 

Charleston, West Virginia
Counsel for the Petitioner


JUSTICE WALKER 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 amended 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


                                             i
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.     “Police officers may stop a vehicle to investigate if they have an

articulable reasonable suspicion that the vehicle is subject to seizure or a person in the

vehicle has committed, is committing, or is about to commit a crime. To the extent State

v. Meadows, 170 W. Va. 191, 292 S.E.2d 50 (1982), holds otherwise, it is overruled.”

Syllabus Point 1, State v. Stuart, 192 W. Va. 428, 452 S.E.2d 886 (1994).



              5.     “When evaluating whether or not particular facts establish reasonable

suspicion, one must examine the totality of the circumstances, which includes both the

quantity and quality of the information known by the police.” Syllabus Point 2, State v.

Stuart, 192 W. Va. 428, 452 S.E.2d 886 (1994).



              6.     “Upon a challenge by the driver of a motor vehicle to the admission

in evidence of the results of the horizontal gaze nystagmus test, the police officer who

administered the test, if asked, should be prepared to give testimony concerning whether

he or she was properly trained in conducting the test, and assessing the results, in

accordance with the protocol sanctioned by the National Highway Traffic Safety

                                              ii
Administration and whether, and in what manner, he or she complied with the training in

administering the test to the driver.” Syllabus Point 2, White v. Miller, 228 W. Va. 797,

724 S.E.2d 768 (2012).



             7.     “A person’s driver’s license may be suspended under W. Va. Code,

17C-5-7(a) [1983] for refusal to take a designated breathalyzer test.” Syllabus Point 2,

Moczek v. Bechtold, 178 W. Va. 553, 363 S.E.2d 238 (1987).




                                           iii
WALKER, Justice:

              Joseph D. Pompeo’s driver’s license was revoked as a result of a traffic stop

by Wheeling police officers. The officers observed that Mr. Pompeo appeared to be under

the influence of alcohol and performed three field sobriety tests, all of which Mr. Pompeo

failed, and a preliminary breath test, which he refused. After his arrest, he claimed that he

was unable to perform a secondary chemical test as a result of an undisclosed breathing

condition. Mr. Pompeo unsuccessfully challenged the revocation of his license with the

Office of Administrative Hearings (OAH) and then appealed to the Circuit Court of Ohio

County. The circuit court ordered that Mr. Pompeo’s driving privileges be restored on the

grounds that (1) the officers lacked reasonable grounds to extend the time of the traffic

stop; (2) there was no probable cause to arrest Mr. Pompeo; and (3) Mr. Pompeo’s failure

to submit to the secondary chemical test was not a refusal sufficient for revocation. We

find the OAH’s findings were not clearly wrong and that the circuit court erroneously

disregarded the evidence upon which the OAH relied and abused its discretion in

substituting its judgment for that of the fact finder below. We reverse and remand for

reinstatement of the administrative order revoking Mr. Pompeo’s driver’s license.



                I. FACTUAL AND PROCEDURAL BACKGROUND

              On August 4, 2010, Corporal K. Prager and Officer Ezekial Goddard of the

Wheeling Police Department were on routine road patrol when they observed Mr. Pompeo

operating a motor vehicle with a burned-out headlight. The officers initiated a traffic stop

only to inform the driver, Mr. Pompeo, of the faulty equipment; at that point, they observed

                                             1

nothing indicative of impairment. Officer Goddard asked Mr. Pompeo for his driver’s

license, registration, and proof of insurance.



              Upon interacting with Mr. Pompeo, the officers immediately observed signs

of impairment. Though Mr. Pompeo readily provided his registration and proof of

insurance, he avoided making eye contact and only produced his driver’s license after being

prompted twice. Though Officer Goddard testified that Mr. Pompeo’s speech was normal,

he also testified that he smelled alcohol on Mr. Pompeo’s breath.



              Corporal Prager then approached the vehicle and, like Officer Goddard,

detected alcohol on Mr. Pompeo’s breath and further noted that his eyes appeared

bloodshot. Mr. Pompeo admitted to both Officer Goddard and Corporal Prager that he had

been drinking before operating the motor vehicle. Based on their observations and Mr.

Pompeo’s admission, Corporal Prager had reason to believe Mr. Pompeo was driving under

the influence of alcohol and asked Mr. Pompeo to exit the vehicle.



              Corporal Prager administered three field sobriety tests—the horizontal gaze

nystagmus (HGN), the walk-and-turn, and the one-leg stand—and attempted to administer

a preliminary breath test to Mr. Pompeo. As to the HGN test, Corporal Prager documented

on the DUI Information Sheet that he observed lack of smooth pursuit and distinct and

sustained nystagmus at maximum deviation in both eyes. At the subsequent administrative

hearing, however, the OAH found that Corporal Prager did not administer the HGN in strict

                                                 2

compliance with the National Highway Traffic Safety Administration (NHTSA) guidelines

and so did not consider the results of that test in this matter.



              As to the walk-and-turn test, Corporal Prager documented that he observed

Mr. Pompeo step off the line of walk, miss heel-to-toe,1 and make an improper turn.

Finally, as to the one-leg stand test, Corporal Prager documented that he observed Mr.

Pompeo begin the test before being instructed to do so, sway while balancing, and lower

his raised foot to the ground twice.



              Mr. Pompeo also refused to provide a sufficient sample for the preliminary

breath test. After the field sobriety tests were administered (and failed) and the preliminary

breath test was administered (and refused), Mr. Pompeo was arrested for driving under the

influence (DUI). After arresting Mr. Pompeo, the officers searched his vehicle and

observed a “big wet spot on the floor.” They also found an empty beer can under the

passenger seat.



              Mr. Pompeo was transported to the Wheeling Police Department for

administration of the secondary chemical test, where he signed the Implied Consent

Statement, which specifies the penalties for refusing to submit to a designated secondary



       1
        Corporal Prager could not specifically recall the distance by which Mr. Pompeo
missed touching heel-to-toe, but testified during the OAH hearings that he typically allows
a leeway of a few inches before deeming that a suspect performed the test incorrectly.
                                               3

chemical test and the fifteen-minute time limit for refusal. Within the fifteen-minute time

limit, Corporal Prager provided Mr. Pompeo with three opportunities to take the secondary

chemical test. Mr. Pompeo placed his mouth on the tube attached to the secondary

chemical test, but Corporal Prager testified that Mr. Pompeo did not make a legitimate

effort to provide a sufficient breath sample.



              Even after the requisite fifteen minutes elapsed, Corporal Prager gave Mr.

Pompeo an additional opportunity to submit to the secondary chemical test, but he again

failed to provide a sufficient breath sample. The officers testified that Mr. Pompeo advised

them that he suffered from an unidentified breathing problem. Corporal Prager further later

testified that, based on his observations, Mr. Pompeo was perfectly capable of providing

the necessary sample. Corporal Prager testified that Mr. Pompeo did not appear winded at

any time, including while getting out of the cruiser, walking up stairs into the Wheeling

Police Department, or walking down a hall into the testing room. As a result, Corporal

Prager deemed Mr. Pompeo’s actions to be a refusal of the secondary chemical test and

submitted a DUI Information Sheet to the DMV.



              On August 25, 2010, the DMV revoked Mr. Pompeo’s driving privileges for

a period of six months and a concurrent period of one year, effective September 29, 2010.

Mr. Pompeo timely requested a hearing before the OAH. In its Final Order, the OAH

affirmed the revocation of Mr. Pompeo’s license for DUI and for refusing to submit to the

secondary chemical test.

                                                4

                 Mr. Pompeo appealed the OAH’s determination in the Circuit Court of Ohio

County, which ordered that the OAH’s Final Order be vacated and Mr. Pompeo’s driving

privileges be restored and reinstated. The DMV now appeals the circuit court’s order and

seeks reinstatement of the OAH’s order revoking Mr. Pompeo’s license.



                                II. STANDARD OF REVIEW

                 We have previously outlined the appropriate standards for our review of a

circuit court’s order deciding an administrative appeal as follows:

                         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.2

We have also noted that “[i]n cases where the circuit court has amended 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.”3 With these standards in mind, we

consider the parties’ arguments.




       2
           Syl. Pt. 1, Muscatell v. Cline, 196 W. Va. 588, 474 S.E.2d 518 (1996).
       3
           Id. at Syl. Pt. 2.
                                                5

                                     III. DISCUSSION 


               In order to resolve this matter, we must determine whether the circuit court

erred in vacating the OAH’s decision to revoke Mr. Pompeo’s driving privileges. We

have provided clear guidance for courts reviewing an administrative agency’s order:

                      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.”4


               In the event one of these standards is not present, a reviewing court is left

with two options: affirm the order of the agency or remand the case for further

proceedings.5 The circuit court’s reversal was premised on two of these standards—




      4
       Syl. Pt. 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) (quoting W. Va. Code §
29A-5-4(g)).

      5
          W. Va. Code § 29A-5-4(g) (2017) provides:




                                              6

“clearly wrong in view of the reliable, probative and substantial evidence on the whole

record” and “arbitrary or capricious or characterized by abuse of discretion.”

Accordingly, we address only those points in our analysis. This Court has also directed

that reviewing courts should consider “credibility determinations by the finder of fact in

an administrative proceeding [to] [be] ‘binding unless patently without basis in the

record.’”6



              Framing our analysis, West Virginia Code § 17C-5A-2(f) requires that the

OAH make three predicate findings after considering the evidence in an administrative

proceeding. Those findings, in pertinent part, require proof that: (1) the arresting officer

had reasonable grounds to believe that the person drove while under the influence of



                     The court may affirm the order or decision of the agency
              or remand the case for further proceedings. It 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, decision 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.
       6
        Webb v. West Virginia Bd. of Medicine, 212 W. Va. 149, 156, 569 S.E.2d 225, 232
(2002) (quoting Martin v. Randolph County Bd. of Educ., 195 W. Va. 297, 304, 465 S.E.2d
399, 406 (1995).


                                             7

alcohol; (2) the person was lawfully placed under arrest for a DUI offense; and (3) the tests,

if any, were administered in accordance with the law.7 In overturning the revocation order

in this matter, the circuit court found that all three predicate findings were lacking in this

case. Specifically, the court concluded that: (A) there was insufficient evidence to support


       7
        The 2010 version of West Virginia Code § 17C-5A-2(f) applies to this case and
provides:

                      In the case of a hearing in which a person is accused of
              driving a motor vehicle while under the influence of alcohol,
              controlled substances or drugs, or accused of driving a motor
              vehicle while having an alcohol concentration in the person's
              blood of eight hundredths of one percent or more, by weight,
              or accused of driving a motor vehicle while under the age of
              twenty-one years with an alcohol concentration in his or her
              blood of two hundredths of one percent or more, by weight, but
              less than eight hundredths of one percent, by weight, the Office
              of Administrative Hearings shall make specific findings as to:
              (1) Whether the investigating law-enforcement officer had
              reasonable grounds to believe the person to have been driving
              while under the influence of alcohol, controlled substances or
              drugs, or while having an alcohol concentration in the person's
              blood of eight hundredths of one percent or more, by weight,
              or to have been driving a motor vehicle while under the age of
              twenty-one years with an alcohol concentration in his or her
              blood of two hundredths of one percent or more, by weight, but
              less than eight hundredths of one percent, by weight; (2)
              whether the person was lawfully placed under arrest for an
              offense involving driving under the influence of alcohol,
              controlled substances or drugs, or was lawfully taken into
              custody for the purpose of administering a secondary
              test: Provided, That this element shall be waived in cases
              where no arrest occurred due to driver incapacitation; (3)
              whether the person committed an offense involving driving
              under the influence of alcohol, controlled substances or drugs,
              or was lawfully taken into custody for the purpose of
              administering a secondary test; and (4) whether the tests, if any,
              were administered in accordance with the provisions of this
              article and article five of this chapter.
                                              8

the officers’ extension of the roadside encounter with Mr. Pompeo; (B) no objective

evidence was developed at the roadside to substantiate that Mr. Pompeo was driving under

the influence; and (C) the officer’s opinion testimony that Mr. Pompeo was “feigning an

attempt to blow” into the secondary chemical testing device was unsubstantiated by the

evidence. We consider each in turn.



A. 	 Initiation of the Traffic Encounter and Sufficiency of the Evidence to Extend
   Detention

                The circuit court did not disturb the OAH’s finding that the officers had

reasonable grounds to initiate a traffic encounter with Mr. Pompeo due to his burned-out

headlight. However, the circuit court found that insufficient evidence supported the

officers’ decision to extend the stop (and test Mr. Pompeo for the presence of alcohol).

Consequently, we must first consider whether the facts of the stop establish the necessary

reasonable grounds, as required by W. Va. Code § 17C-5A-2(f)(1), for the officers to have

extended Mr. Pompeo’s detention beyond the period of time necessary to inform him of

the burned-out headlight.



                We have held that “[p]olice officers may stop a vehicle to investigate if they

have an articulable reasonable suspicion that the vehicle is subject to seizure or a person in

the vehicle has committed, is committing, or is about to commit a crime….”8 We have

defined reasonable suspicion as:


       8
           Syl. Pt. 1, State v. Stuart, 192 W. Va. 428, 452 S.E.2d 886 (1994). 

                                               9

                [A] less demanding standard than probable cause not only in
                the sense that reasonable suspicion can be established with
                information that is different in quantity or content than that
                required to establish probable cause, but also in the sense that
                reasonable suspicion can arise from information that is less
                reliable than that required to show probable cause.9

Further, we have instructed that “[w]hen evaluating whether or not particular facts establish

reasonable suspicion, one must examine the totality of the circumstances, which includes

both the quantity and quality of the information known by the police.”10



                During the OAH hearing, the officers testified that although Mr. Pompeo

immediately provided his registration and proof of insurance, the officers had to prompt

him twice before he produced his driver’s license. The officers further testified that

although Mr. Pompeo’s speech was normal, he avoided making eye contact and his eyes

were bloodshot. Additionally, the officers testified that Mr. Pompeo’s breath smelled of

alcohol and that he admitted to drinking earlier prior to operating the motor vehicle. Upon

these observations, the officers concluded—and the OAH agreed—there was sufficient

evidence for the officers to believe that Mr. Pompeo was committing a crime (namely,

driving under the influence) and, therefore, the officers properly extended the stop.




       9
        Muscatell, 196 W. Va. at 596, 474 S.E.2d at 526 (quoting Stuart, 192 W. Va. at
432, 452 S.E.2d at 890).
       10
            Syl. Pt. 2, Stuart, 192 W. Va. at 428, 452 S.E.2d at 886.


                                               10 

                The circuit court, however, concluded that these factual findings of the OAH

were clearly wrong. In order to sustain such a finding, the circuit court is required to show

that these findings are “patently without basis in the record.”11 Although a reasonable

suspicion analysis requires that “one must examine the totality of the circumstances,” the

circuit court examined each piece of evidence indicative of impairment in isolation.12



                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 “counsel’s eyes were noted to have blood in them and that

Patrolman Prager did not believe counsel to be intoxicated.”13 Additionally— in direct

contradiction of the record—the circuit court found that Mr. Pompeo “…produced his

driver’s information in an unremarkable fashion that was in no manner indicative of

impairment.”



                We find that the circuit court erroneously disregarded the evidence of

impairment provided by the officers’ testimony by giving undue weight to irrelevant and


       11
            Webb v. West Virginia Bd. of Med., 212 W. Va. at 156, 569 S.E.2d at 232. 

       12
            Syl. Pt. 2, Stuart, 192 W. Va. at 428, 452 S.E.2d at 886. 

       13
         This finding is predicated on evidence elicited on cross-examination by Mr. 

Pompeo’s counsel: “Q:…How do my eyes look right now? A: They look fine to me, sir.
Q: No blood in them at all? A: Just a little bit under maybe your right eyeball. Q: There is
some blood there. You don’t suspect I’m under the influence of alcohol? A: No, sir.”
                                               11 

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 and, as such, we find that the officers had reasonable

grounds to extend the traffic encounter with Mr. Pompeo beyond the amount of time

necessary simply to inform him of a burned-out headlight.



B. Probable Cause to Arrest for DUI

                West Virginia Code § 17C-5A-2(f)(2) requires the OAH to make a finding

that the arrest for DUI was lawful.14 To be lawful, the arrest must be supported by probable

cause.15 As the United States Supreme Court has stated:

                This Court repeatedly has explained that “probable 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.16




       14
           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).
       15
            Ciccone, 233 W. Va. at 661, 760 S.E.2d at 475.
       16
            Michigan v. DeFillippo, 443 U.S. 31, 37 (1979) (citations omitted).




                                              12 

Probable cause is a “practical, nontechnical conception that deals with the factual and

practical considerations of everyday life on which reasonable and prudent men, not legal

technicians, act.”17



                In this case, we find that there was probable cause for the officers to place

Mr. Pompeo under arrest for the offense of driving under the influence. In addition to the

evidence that provided reasonable grounds for the officers to extend the traffic encounter,

we may also consider the field sobriety tests—the HGN, the walk-and-turn, and the one-

leg stand—and the preliminary breath test in analyzing probable cause, although “[n]either

the DUI statutes nor our case law require a [preliminary breath test] or any particular field

sobriety test to establish that a driver was under the influence for purposes of administrative

revocation.”18



                This Court regularly has addressed the admissibility of field sobriety test

results in administrative license revocation cases. In Syllabus Point 2 of White v. Miller,

we held that

                      [u]pon a challenge by the driver of a motor vehicle to
                the admission in evidence of the results of the horizontal gaze
                nystagmus test, the police officer who administered the test, if
                asked, should be prepared to give testimony concerning
                whether he or she was properly trained in conducting the test,

       17
            Maryland v. Pringle, 540 U.S. 366, 370 (2003) (citations omitted). 

       18
            Reed v. Hill, 235 W. Va. 1, 9, 770 S.E.2d 501, 509 (2015). 



                                              13 

                and assessing the results, in accordance with the protocol
                sanctioned by the National Highway Traffic Safety
                Administration and whether, and in what manner, he or she
                complied with that training in administering the test to the
                driver.19


We have further held that when an officer fails to satisfy some requirement of a field

sobriety test, such failure goes “to the weight of the evidence, not its admissibility.”20



                At the administrative hearing, the OAH found that Corporal Prager did not

administer the HGN in strict compliance with the NHTSA guidelines and did not consider

the results of the test in this matter. Specifically, Corporal Prager admitted that he did not

count the number of sweeps and holds as required by the guidelines. Because of the non-

compliance, it was not clearly wrong for the OAH to accord no weight to the HGN test

results. And the circuit court was within its authority to rely on this finding from the OAH.



                However, the OAH found the officers’ testimony regarding Mr. Pompeo’s

performance of the walk-and-turn and the one-leg stand to be credible. Corporal Prager

testified that Mr. Pompeo failed the walk-and-turn by stepping off the line of walk, missing

heel-to-toe, and making an improper turn. Though the officer could not specifically recall

the distance by which Mr. Pompeo missed touching heel-to-toe, the officer testified that he


       19
            Syl. Pt. 2, White v. Miller, 228 W. Va. 797, 724 S.E.2d 768 (2012).
       20
         Dale v. McCormick, 231 W. Va. at 633-34, 749 S.E.2d 232-33 (2013) (quoting In
re Flood Litigation Coal River Watershed, 222 W. Va. 574, 582, 668 S.E.2d 203, 211
(2008)).
                                              14 

typically allows a leeway of a few inches before failing a test-taker. The officer testified

that Mr. Pompeo failed the one-leg stand by starting the test before being instructed to do

so, swaying while balancing, and lowering his raised foot to the ground not once, but twice.



                  Nonetheless, the circuit court ignored the OAH’s determination that Corporal

Prager testified credibly as to Mr. Pompeo’s failures and disregarded this evidence because

Corporal Prager was unsure whether he had asked Mr. Pompeo if he understood the

instructions. Importantly, Mr. Pompeo offers nothing to show that he did not understand.

Regardless, the circuit court erred in excluding this evidence altogether, as we have clearly

stated that failures such as this go to the “weight of the evidence, not the admissibility.”21



                  The circuit court further excluded Mr. Pompeo’s refusal of the preliminary

breath test because “the officers did not wait the requisite fifteen (15) minutes before giving

the test.” A motorist is deemed to have given implied consent for a [preliminary breath

test] for purposes of determining alcohol concentration.22 The statute provides that “such


       21
            Id.
       22
            The 2010 version of West Virginia Code §17C-5-4(a) applies to this case and
provides:
                          Any person who drives a motor vehicle in this state is
                  considered to have given his or her consent by the operation of
                  the motor vehicle to a preliminary breath analysis and a
                  secondary chemical test of either his or her blood, breath or
                  urine for the purposes of determining the alcoholic content of
                  his or her blood.


                                                15 

breath analysis must be administered as soon as possible after the law-enforcement officer

has a reasonable belief that the person has been driving while under the influence of

alcohol….”23, but also directs that a preliminary breath test “must be administered with a

device and in a manner approved by the Department of Health for that purpose.”24 Though

the statute requires immediacy in performing the test, it also requires compliance with the

methods and standards approved by the Bureau for Public Health of the Department of

Health. To that end, we have upheld the Bureau for Public Health’s legislative rule

providing that “[t]he law enforcement officer shall prohibit the person from drinking



       23
            W. Va. Code § 17C-5-5 (2017), in full, states:

                          When a law-enforcement officer has reason to believe a
                  person has committed an offense prohibited by section two [§
                  17C-5-2] of this article or by an ordinance of a municipality of
                  this State which has the same elements as an offense described
                  in said section two of this article, the law-enforcement officer
                  may require such person to submit to a preliminary breath
                  analysis for the purpose of determining such person’s blood
                  alcohol content. Such breath analysis must be administered as
                  soon as possible after the law-enforcement officer has a
                  reasonable belief that the person has been driving while under
                  the influence of alcohol, controlled substances or drugs. Any
                  preliminary breath analysis required under this section must be
                  administered with a device and in a manner approved by the
                  Department of Health for that purpose. The results of a
                  preliminary breath analysis shall be used solely for the purpose
                  of guiding the officer in deciding whether an arrest should be
                  made. When a driver is arrested following a preliminary breath
                  analysis, the tests as hereinafter provided in this article shall be
                  administered in accordance with the provisions thereof.
       24
            Id.


                                                  16 

alcohol or smoking for at least fifteen minutes before conducting the preliminary breath

test.”25



                    According to the DUI Information Sheet, the officers administered the

preliminary breath test just ten minutes after they first had contact with Mr. Pompeo;

however, the OAH did not rely on this in its determination that the officers had probable

cause for the arrest. The OAH found, and we agree, that there remained sufficient evidence

of impairment whether or not we consider Mr. Pompeo’s refusal of the preliminary breath

test. We find that the OAH’s finding of probable cause for arrest is supported by the

substantial evidence presented, and the circuit court abused its discretion in substituting its

judgment for that of the fact finder below.




C. Refusal of the Secondary Chemical Test

                    Finally, we now consider whether Mr. Pompeo’s failure to perform the

secondary chemical test following his arrest constituted a refusal. As we have held, “[a]

person’s driver’s license may be suspended under W. Va. Code, 17C-5-7 [1983] for refusal

to take a designated breathalyzer test.”26 According to the statute, an officer making a DUI



           25
        Reed v. Hill, 235 W. Va. at 7, 11-14, 770 S.E.2d at 507, 511-14 (quoting W. Va.
Code R. § 64-10-5.2(a) (2005)).
           26
                Syl. Pt. 2, Moczek v. Bechtold, 178 W. Va. 553, 363 S.E.2d 238 (1987).


                                                 17 

arrest must inform the arrestee that a refusal to submit to a secondary chemical breath test

will result in license suspension.27 The statute further requires that the officer set forth the

penalties for refusal, both orally and by providing a written copy to the arrestee.28 In this

case, Mr. Pompeo does not dispute that Corporal Prager complied with these duties. It is

undisputed that Mr. Pompeo failed to perform the secondary test. At issue here is whether

Mr. Pompeo’s allegations of an unidentified breathing problem, without more, excuse him

from what would otherwise constitute a refusal.



                  The OAH found that Mr. Pompeo was afforded three attempts to submit to

the secondary chemical test and, although he placed the mouthpiece into his mouth, he did

not make a legitimate effort to provide a sufficient breath sample. After a fifteen-minute

period, Mr. Pompeo was afforded another opportunity to submit to the secondary chemical

test, but, again, he would not provide a sufficient breath sample. At this point, Corporal



       27
          The 2010 version of West Virginia Code § 17C-5-7 applies to this case and
provides, in relevant part:

                          (a) If any person under arrest as specified in section four
                  of this article refuses to submit to any secondary chemical test,
                  the tests shall not be given: Provided, That prior to the refusal,
                  the person is given an oral warning and a written statement
                  advising him or her that his or her refusal to submit to the
                  secondary test finally designated will result in the revocation
                  of his or her license to operate a motor vehicle in this state for
                  a period of at least forty-five days and up to life; and that after
                  fifteen minutes following the warnings the refusal is
                  considered final.
       28
            Id.
                                                  18 

Prager deemed Mr. Pompeo’s actions to constitute a refusal to submit to the secondary

chemical test.



                 Although both officers testified that Mr. Pompeo advised them that he

suffered from an unidentified breathing problem, Corporal Prager testified that, based on

his observations, Mr. Pompeo was merely feigning an attempt to provide a breath sample

into the testing device. The OAH found the testimony of the officers to be credible and

determined that Mr. Pompeo’s failure to perform the secondary chemical test was, in fact,

a refusal. Specifically, the OAH found that Mr. Pompeo offered no credible rebuttal

testimony regarding any asthmatic or breathing condition that would inhibit his ability to

perform the test.



                 The circuit court erred in disregarding the OAH’s findings on the issue of the

secondary chemical test. First, the circuit court incorrectly places the burden of proof on

the DMV. Once the DMV satisfied its burden of proof to show that the driver refused to

submit to the secondary chemical test, the burden shifted to Mr. Pompeo to show that he

was physically unable to take the test.29 Mr. Pompeo offered absolutely no testimony or

other evidence of a breathing condition.




       29
            Cunningham v. Bechtold, 186 W. Va. 474, 480, 413 S.E.2d 129, 135 (1991).
                                               19 

              We find no clear error by the OAH in its findings on this issue. The OAH

listened to the officers’ testimony that Mr. Pompeo displayed no symptoms of a breathing

impairment and watched video footage of the traffic encounter. It then found the officers’

accounts to be credible. Specifically, the OAH found that Mr. Pompeo offered no credible

rebuttal testimony regarding any asthmatic or breathing condition that would inhibit his

ability to perform the test.



                                  IV. CONCLUSION

              For the reasons stated above, we reverse the circuit court’s order and remand

this case for reinstatement of the Commissioner’s order administratively revoking Mr.

Pompeo’s driver’s license.



                                                                 Reversed and Remanded.




                                            20 

