           IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                    January 2015 Term                FILED
                                                                February 27, 2015
                                                                   released at 3:00 p.m.
                                                                   RORY L. PERRY II, CLERK
                                      No. 14-0103                SUPREME COURT OF APPEALS
                                                                     OF WEST VIRGINIA




                     PATRICIA S. REED, COMMISSIONER,

                WEST VIRGINIA DIVISION OF MOTOR VEHICLES

                          Petitioner Below, Petitioner


                                           v.

                                  JEFFREY HILL,

                            Respondent Below, Respondent




                   Appeal from the Circuit Court of Kanawha County

                         Honorable Carrie L. Webster, Judge

                             Civil Action No. 12-AA-140


                           REVERSED AND REMANDED



                              Submitted: January 27, 2015

                               Filed: February 27, 2015




Patrick Morrisey, Esq.                                  Todd F. La Neve, Esq.
Attorney General                                        Clarksburg, West Virginia
Janet E. James, Esq.                                    Attorney for Respondent
Senior Assistant Attorney General
Charleston, West Virginia
Attorneys for Petitioner


JUSTICE LOUGHRY delivered the Opinion of the Court.

JUSTICE DAVIS dissents and reserves the right to file a dissenting opinion.

                               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.”

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



               2.     “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.’” Syl. Pt. 2, Shepherdstown Volunteer Fire Dept. v.

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




                                                 i
              3.     “A driver’s license to operate a motor vehicle in this State cannot be

administratively revoked solely and exclusively on the results of the driver’s horizontal gaze

nystagmus test. Rather, additional evidence in conjunction with the horizontal gaze

nystagmus test is required for revocation: for example, the results of other field sobriety

tests; the results of a secondary chemical test; whether the vehicle was weaving on the

highway; whether the driver admitted consuming an alcoholic beverage; whether the driver

exhibited glassy eyes or slurred speech; and/or whether the odor of an alcoholic beverage was

detected.” Syl. Pt. 3, White v. Miller, 228 W.Va. 797, 724 S.E.2d 768 (2012).



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

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

warrant a prudent man in believing that an offense has been committed.’ Point 1 Syllabus,

State v. Plantz, [155] W.Va. [24] [180 S.E.2d 614].” Syllabus Point 3, State v. Duvernoy,

156 W.Va. 578, 195 S.E.2d 631 (1973).’ Syl. Pt. 7, State v. Craft, 165 W.Va. 741, 272

S.E.2d 46 (1980).” Syl. Pt. 2, State v. Rahman, 199 W.Va. 144, 483 S.E.2d 273 (1996).



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

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

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




                                              ii
standard to warrant the administrative revocation of his driver’s license for driving under the

influence of alcohol.” Syl. Pt. 2, Albrecht v. State, 173 W.Va. 268, 314 S.E.2d 859 (1984).



              6.     The requirement in West Virginia C.S.R. § 64-10-7.2(a) (2005) that a

law enforcement officer shall keep the person being tested under constant observation for a

period of twenty minutes before administering a secondary chemical breath test does not

require uninterrupted visual monitoring. The observation may be accomplished by the

officer’s use of his or her visual, auditory, and olfactory senses.




                                              iii
LOUGHRY, Justice

              The petitioner, Patricia S. Reed, Commissioner of the West Virginia Division

of Motor Vehicles (“Commissioner”),1 appeals the Circuit Court of Kanawha County’s

December 30, 2013, order affirming the November 13, 2012, order of the Office of

Administrative Hearings (“OAH”). The OAH reversed the Commissioner’s January 28,

2011, order that administratively revoked the respondent Jeffrey Hill’s driver’s license for

driving a motor vehicle while under the influence of alcohol (“DUI”). The OAH found there

was insufficient evidence that the respondent was DUI or was lawfully arrested for DUI.

After carefully considering the parties’ briefs and oral argument, as well as the appendix

record on appeal and the applicable law, we reverse the circuit court’s order for the reasons

set forth below and remand this matter for reinstatement of the Commissioner’s revocation

order.



                        I. Factual and Procedural Background

              Deputy Edwin Delgado of the Taylor County Sheriff’s Department testified

that on the early morning of October 24, 2010, his police cruiser was nearly hit head-on by

an oncoming vehicle, requiring the deputy to take quick evasive action to avoid a collision.



         1
       When the revocation order was entered, Joe Miller was the Commissioner of the
West Virginia Division of Motor Vehicles. Pursuant to Rule 41(c) of the Rules of Appellate
Procedure, the current commissioner, Patricia S. Reed, has been automatically substituted as
the named petitioner herein.

                                             1

He indicated that the driver of the other vehicle took no action to avoid a collision and, in

the deputy’s estimation, was traveling in excess of the posted speed limit. The deputy turned

his cruiser around, caught up with the other vehicle, and initiated a traffic stop at 2:07 a.m.



                The stopped vehicle was driven by the respondent, Jeffrey Hill, and contained

two passengers. At the administrative hearing in this matter, Mr. Hill denied speeding and

denied that he was driving down the very center of the roadway; however, he admitted that

he was driving toward the center of the unlined roadway and that he also had to swerve to

avoid striking the police car. He testified that immediately after swerving, he knew he was

going to be pulled over. Mr. Hill has conceded that the officer had sufficient grounds to stop

his vehicle.2



                Upon having Mr. Hill exit the vehicle, Deputy Delgado smelled an odor of an

alcoholic beverage emanating from both the vehicle and from Mr. Hill’s breath. The deputy

observed that Mr. Hill had bloodshot and glassy eyes, was a bit unsteady while standing,

talked in a continuous and excited manner, and had a slight slur in his speech. The deputy

attributed the slur to both nervousness and to alcohol impairment. Mr. Hill admitted that he

had been drinking beer, but he chose to drive his friend’s car because he believed that he was


       2
        Deputy Delgado testified that in the related criminal case, Mr. Hill “pled to reckless
driving” and a DUI charge was dismissed. The record before us does not indicate whether
the reckless driving plea was guilty or no contest.

                                              2

in a better condition to drive than were his friends. The deputy administered three field

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

stand–and a preliminary breath test (“PBT”) to Mr. Hill.3 Mr. Hill passed the walk and turn

and one leg stand tests. As to the HGN test, the deputy wrote on the DUI Information Sheet

that he observed two detection clues in each of Mr. Hill’s eyes. Two detection clues in each

eye constitutes a total of four detection clues, which is a failing score. However, at the

administrative hearing, the deputy gave contradictory testimony about his observations

during the HGN test and testified to his belief that Mr. Hill had passed the test.



              Mr. Hill took the PBT at 2:15 a.m. The PBT registered a blood alcohol

concentration (“BAC”) of .114. Deputy Delgado arrested Mr. Hill for DUI at 2:25 a.m. and

subsequently transported him to the police station.4 See W.Va. Code § 17C-5-2(2010)

(defining criminal DUI to include driving under the influence of alcohol or driving with a

BAC of .08 or more). Mr. Hill executed the West Virginia Implied Consent Statement and,

at 4:11 a.m., registered a BAC of .108 on the designated secondary chemical breath test.




       3
         Mr. Hill testified that the field sobriety tests were only administered after he was
transported to the police station. However, Deputy Delgado testified that he administered
the field sobriety tests at both the scene of the traffic stop and again at the station, with the
same results.
       4
       There was a short delay in transporting Mr. Hill while Deputy Delgado ensured that
Mr. Hill’s passengers, who had also been drinking, were picked up by their parents.

                                               3

              Deputy Delgado wrote on the DUI Information Sheet that during a post-arrest

interview, Mr. Hill admitted that he had consumed four twelve-ounce bottles of light beer in

a period of one hour.5 However, during the administrative hearing, Mr. Hill testified that he

had consumed this amount of beer over a longer period of time. Mr. Hill also testified that

he had stopped drinking one hour before driving because he wanted to “sober up,” but he

then denied that he was under the influence of alcohol.6 Finally, Mr. Hill’s father testified

that when he saw the respondent approximately one hour after the arrest, his son did not

appear to be impaired.7



              Upon receipt of the DUI Information Sheet completed by Deputy Delgado, the

Commissioner entered an order on January 28, 2011, administratively revoking Mr. Hill’s

driver’s license for DUI. See W.Va. Code § 17C-5A-1 (2008) (providing for revocation of



       5
        The deputy explained that during a post-arrest interview, he reads each question on
the DUI Information Sheet and then records verbatim the person’s answers. The deputy wrote
that Mr. Hill said, “I found myself in a situation where I thought I was better off to drive but
that was found to be nontrue [sic]. I only had four beers in an hour and figured I would be
sober enough to drive. I regret risking everyones [sic] life [sic]!”
       6
        At the hearing, when asked when he had finished his last beer, Mr. Hill testified that
“[i]t was about an hour before I got in the car. I decided to, you know, try to sober up or
whatever you want to say about it. I mean, I stopped drinking because I realized I had to
drive because I was better off than either of the two people I was with.” Mr. Hill went on
to deny that he was ever impaired that night, even at the point in time when he had decided
to stop drinking.
       7
         A passenger in the vehicle also testified, but he was too intoxicated at the time of the
arrest to know whether Mr. Hill was under the influence of alcohol.

                                               4

driver’s license if person drives under the influence of alcohol or drives with a BAC of .08

or more).8



              Mr. Hill timely challenged the revocation at the OAH. After holding an

evidentiary hearing, the OAH reversed the Commissioner’s revocation order. The OAH

concluded that the deputy had sufficient reasonable suspicion to initiate the traffic stop, but

did not have reasonable grounds to believe that Mr. Hill was driving under the influence of

alcohol or to make a lawful arrest. See W.Va. Code § 17C-5A-2(f) (2010). In reaching these

conclusions, the OAH found that the HGN test was improperly administered and must be

disregarded; that Mr. Hill passed two field sobriety tests despite continuously talking to the

officer, and his talking would have been distracting to Mr. Hill thus making it harder to pass

those tests; and that the PBT result must be disregarded because Deputy Delgado was not

properly certified to administer the PBT and had failed to observe Mr. Hill for fifteen

minutes before administering the test. The OAH’s order did not mention the secondary

chemical test result.




       8
        Because the secondary chemical test showed that Mr. Hill had a BAC of higher than
.08, his driver’s license was revoked for at least ninety days or until he complied with
provisions of the Test and Lock Program. However, we note that even if Mr. Hill’s BAC had
been at a lower level of between .02 and .08, a sixty-day suspension of his license would still
be required because he was eighteen years old. See W.Va. Code § 17C-5A-1(c) (2008);
W.Va. Code § 17C-5A-2(n) (2010).

                                              5

              The Commissioner appealed to the circuit court, which affirmed the OAH on

December 30, 2013. In addition to discounting the evidence of the HGN and PBT tests, the

circuit court concluded that the results of the secondary chemical test should be disregarded

because, in the circuit court’s opinion, Deputy Delgado did not constantly observe Mr. Hill

for the required twenty minutes prior to the administration of the secondary test.



              Seeking reinstatement of the revocation order, the Commissioner now appeals

the circuit court’s order to this Court.



                                   II. Standard of Review

              This Court applies the following standard of review when reviewing a circuit

court’s order in an administrative appeal:

                     On appeal of an administrative order from a circuit court,
              this Court is bound by the statutory standards contained in
              W.Va. Code § 29A-5-4(a) and reviews questions of law
              presented de novo; findings of fact by the administrative officer
              are accorded deference unless the reviewing court believes the
              findings to be clearly wrong.

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

                      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

                                              6

              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.”

Syl. Pt. 2, Shepherdstown Volunteer Fire Dept. v. State ex rel. State of W.Va. Human Rights

Comm’n, 172 W.Va. 627, 309 S.E.2d 342 (1983). With these precepts in mind, we turn to

a consideration of the case before us.



                                         III. Discussion

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

after considering the evidence in an administrative hearing. These findings include whether

the investigating law enforcement officer had reasonable grounds to believe the person was

driving under the influence of alcohol, whether the person was lawfully placed under arrest,

and whether the tests, if any, were administered in accordance with the law.9 When


       9
        The 2010 version of West Virginia Code § 17C-5A-2(f) applies to this case. This
statute provided as follows:

                     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

                                               7

overturning the Commissioner’s revocation order, the OAH concluded that Deputy Delgado

did not have sufficient evidence of DUI to arrest Mr. Hill during the traffic stop. For the

reasons discussed below, this was error. While the OAH was not clearly wrong to disregard

the results of the HGN and PBT tests, there still remained evidence of DUI providing the

deputy with probable cause to arrest Mr. Hill. Moreover, when considering all of the




              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

evidence of DUI, including the .108 BAC result on the secondary chemical breath test, the

Commissioner’s revocation order should have been upheld.



                              A. PBT and HGN Test Results

              The OAH found that Deputy Delgado did not properly administer the HGN test

because he failed to perform a pre-assessment to ascertain whether Mr. Hill’s eyes displayed

equal tracking. The OAH also found that the deputy gave conflicting evidence regarding his

observations during the HGN test. In prior cases, we have explained that a police officer’s

failure to satisfy some requirements for administering an HGN test goes to the weight of the

evidence, not to its admissibility. Dale v. Oakland, 234 W.Va. 106, ___, 763 S.E.2d 434,

440 (2014); Dale v. McCormick, 231 W.Va. 628, 633-34, 749 S.E.2d 227, 232-33 (2013).



              After examining the record in this case, we conclude that the OAH’s concerns

about the HGN test were well-founded. The DUI Information Sheet indicates that the deputy

engaged in a medical assessment of Mr. Hill, during the course of which the officer observed

that Mr. Hill had equal pupils, no resting nystagmus, and equal tracking. However, during

the administrative hearing the deputy testified that he did not check for equal tracking of the

eyes prior to administering the HGN test. He also did not ask whether Mr. Hill had an injury

or condition that would impact his ability to take the HGN test. With regard to the deputy’s

observations during the test, Deputy Delgado recorded on the DUI Information Sheet that


                                              9

Mr. Hill exhibited a lack of smooth pursuit in each eye, exhibited distinct and sustained

nystagmus at the maximum deviation in each eye, but did not exhibit the onset of nystagmus

prior to forty-five degrees. However, in marked contrast to the DUI Information Sheet data,

the deputy testified at the administrative hearing that he did observe the onset of nystagmus

prior to forty-five degrees. Moreover, while conceding on direct examination that the boxes

he checked on the DUI Information Sheet reflected that Mr. Hill had failed the HGN test, the

deputy nonetheless maintained his belief that Mr. Hill had indeed passed. Because the

contradictory evidence from Deputy Delgado raised concerns about whether the HGN test

was properly administered, it was not clearly wrong for the OAH to accord no weight to the

HGN test results.10



              As to the PBT test result, the OAH disregarded this evidence for two reasons.

First, the OAH found that “certified records provided by the West Virginia Division of Motor



       10
         In its order, the circuit court added an additional reason why the HGN result should
be disregarded: the circuit court found that Mr. Hill may have been exposed to the police
car’s flashing emergency lights during the test. The circuit court discussed that flashing
lights can cause optokinetic nystagmus, and this type of nystagmus is not indicative of
alcohol consumption. However, not only did the OAH make no findings of fact regarding
the police car’s flashing lights and optokinetic nystagmus, the circuit court’s findings in this
regard are wholly unsupported by the record. Mr. Hill never claimed that any lights were in
his eyes or affected his ability to take field sobriety tests, and the deputy testified that he
made sure there were no lights–including the cruiser’s flashing lights–shining in Mr. Hill’s
eyes during the HGN test. Indeed, Mr. Hill testified that the field sobriety tests were
administered at the police station where, presumably, there were no flashing emergency
lights.

                                              10

Vehicles do not establish that the Investigating Officer was trained and certified to administer

the SD-5 Preliminary Breath Test.” Critically, no such records were included in the

administrative record or even identified in the OAH’s order. Moreover, when asked about

this during the hearing, Deputy Delgado testified that he was certified on the SD-5 on

January 25, 2009. Accordingly, we must conclude that the OAH’s finding regarding the

officer’s training and certification was clearly wrong in view of the reliable, probative, and

substantial evidence on the whole record.



              Second, the OAH found that Deputy Delgado did not observe Mr. Hill for

fifteen minutes prior to administering the PBT. The West Virginia Bureau for Public Health

has promulgated a legislative rule providing that “[t]he law enforcement officer shall prohibit

the person from drinking alcohol or smoking for at least fifteen minutes before conducting

the [PBT] test.” W.Va. C.S.R. § 64-10-5.2(a) (2005). West Virginia Code § 17C-5-5 (1983)

directs that a PBT “must be administered with a device and in a manner approved by the

Department of Health for that purpose.” Undoubtedly, the purpose of this legislative rule is

to promote accuracy and reliability in the test result. According to the DUI Information

Sheet, Deputy Delgado administered the PBT just eight minutes after he first had contact

with Mr. Hill. Because the deputy did not comply with C.S.R. § 64-10-5.2(a) by prohibiting




                                              11

Mr. Hill from drinking alcohol and smoking for at least fifteen minutes before the PBT was

administered, the OAH was not clearly wrong to exclude this test result.11



                            B. Probable Cause to Arrest for DUI

                 The analysis required by West Virginia Code § 17C-5A-2(f)(2)12 as to whether

Mr. Hill “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” does not end with the exclusion of Mr. Hill’s HGN and PBT test results.

Neither the DUI statutes nor our case law require a PBT or any particular field sobriety test

to establish that a driver was under the influence for purposes of administrative revocation.13




       11
         When discussing that the PBT result should not be considered, the circuit court
required a longer waiting period than did the OAH. The circuit court found that the
manufacturer of this particular PBT device requires a twenty-minute waiting period before
taking a breath sample, and West Virginia C.S.R. § 64-10-5.1 provides that “[t]he use of the
approved [PBT] instrument shall adhere to the manufacturer’s specifications for operation[.]”
Because the manufacturer’s recommendations were never put in the record, it is unclear how
the circuit court made the determination that a twenty minute period should be used. Given
our conclusion that the shorter fifteen minute period required by C.S.R. § 64-10-5.2(a) was
not met, we need not address the circuit court’s findings on this issue.
       12
            See supra note 9.
       13
        Our laws also do not require a secondary chemical test to prove that a motorist was
DUI for purposes of administrative revocation. Syl. Pt. 5, Coll v. Cline, 202 W.Va. 599, 505
S.E.2d 662 (1998); Syl. Pt. 1, Albrecht v. State, 173 W.Va. 268, 314 S.E.2d 859 (1984).

                                              12

              Indeed, the Legislature expressly left the decision on whether to administer a

PBT to the law enforcement officer’s discretion. West Virginia Code § 17C-5-5 provides

that when an officer has reason to believe that a person has committed a DUI offense, the

“officer may require such person to submit to a preliminary breath analysis for the purpose

of determining such person’s blood alcohol content.” Id. (emphasis added); accord W.Va.

Code § 17C-5-4(b) (2010) (also stating PBT “may” be administered). Moreover, the OAH

is only required to determine whether tests were correctly administered if any tests were, in

fact, given. W.Va. Code § 17C-5A-2(f)(4) (directing OAH to make findings on whether

“tests, if any,” were administered in accordance with law).



              The PBT and field sobriety tests, if administered, are tools for the officer to

use,14 but the results of those tests do not constitute the totality of the evidence that a law

enforcement officer may consider when deciding whether to arrest a driver for DUI. In

White v. Miller, a case addressing how HGN test results may be used in a license revocation

proceeding, we listed several examples of evidence indicative of DUI:




       14
         The Legislature has directed that a PBT is “solely for the purpose of guiding the
officer in deciding whether an arrest should be made.” W.Va. Code § 17C-5-5. An HGN
test may be used to guide the officer in deciding whether an arrest should be made, and it is
also substantive evidence of impairment. See Syl. Pt. 1, in part, White v. Miller, 228 W.Va.
797, 724 S.E.2d 768 (2012) (“The horizontal gaze nystagmus test is a field sobriety test, and
a driver’s performance on the test is admissible as evidence that the driver may have
consumed alcohol and may, therefore, be impaired.”).

                                              13

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

Syl. Pt. 3, White v. Miller, 228 W.Va. 797, 724 S.E.2d 768 (2012). Thus, it is clear that

neither the relevant statutes nor our case law require that a preliminary breath test or any

particular field sobriety test be administered, and failed, in order to establish that a motorist

was driving under the influence. The results of such tests, if the tests were properly

administered, are to be considered in conjunction with all of the other evidence.



              In 2010, the Legislature reinserted language into West Virginia Code § 17C­

5A-2(f) requiring the OAH to make a finding that the arrest for DUI was lawful. Dale v.

Ciccone, 233 W.Va. 652, 658-59, 760 S.E.2d 466, 472-73 (2014). To be lawful, an arrest

must be supported by probable cause. Ciccone, 233 W.Va. at 661, 760 S.E.2d at 475; State

v. Runner, 172 W.Va. 720, 723, 310 S.E.2d 481, 484 (1983) (Reiterating that “a warrantless

arrest . . . must be supported by probable cause to be valid”). On multiple occasions, this

Court has explained that

              “‘“[p]robable cause to make an arrest without a warrant exists when the
       facts and circumstances within the knowledge of the arresting officers are
       sufficient to warrant a prudent man in believing that an offense has been

                                               14

       committed.” Point 1 Syllabus, State v. Plantz, [155] W.Va. [24] [180 S.E.2d
       614].’ Syllabus Point 3, State v. Duvernoy, 156 W.Va. 578, 195 S.E.2d 631
       (1973).” Syl. Pt. 7, State v. Craft, 165 W.Va. 741, 272 S.E.2d 46 (1980).

Syl. Pt. 2, State v. Rahman, 199 W.Va. 144, 483 S.E.2d 273 (1996); accord Syl. Pt. 1, State

v. Drake, 170 W.Va. 169, 291 S.E.2d 484 (1982). The United States Supreme Court has

phrased the test as follows:

                      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.

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



              It is important to remember that a law enforcement officer may have evidence

sufficient to establish probable cause for an arrest, even if that evidence is less than what

would be needed to ultimately convict at a criminal trial. “It is basic that an arrest with or

without a warrant must stand upon firmer ground than mere suspicion . . . though the

arresting officer need not have in hand evidence which would suffice to convict.” Wong Sun

v. United States, 371 U.S. 471, 479 (1963) (internal citation omitted). The United States

Supreme Court has “made clear that the kinds and degree of proof and the procedural

requirements necessary for a conviction are not prerequisites to a valid arrest.” DeFillippo,

443 U.S. at 36 (citations omitted). “[I]t is clear that only the probability, and not a prima

facie showing, of criminal activity is the standard of probable cause.” Illinois v. Gates, 462

                                             15

U.S. 213, 235 (1983) (citation and internal quotation marks omitted); accord Maryland v.

Pringle, 540 U.S. 366, 371 (2003).



              Indeed, “the probable-cause standard does not require that the officer’s belief

be more likely true than false.” United States v. Humphries, 372 F.3d 653, 660 (4th Cir.

2004) (citation omitted) (reversing district court’s misapprehension that probable cause

meant “more likely than not, [more than] 50/50”). “The probable-cause standard is incapable

of precise definition or quantification into percentages because it deals with probabilities and

depends on the totality of the circumstances.” Pringle, 540 U.S. at 371 (citations omitted).

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.” Id., 540 U.S. at 370 (citations and internal question marks omitted).



              Returning to the case before us, we find that there was probable cause for

Deputy Delgado to arrest Mr. Hill for DUI.15 A prudent person would believe, under the

circumstances presented here, that a DUI offense was committed. The evidence that Mr. Hill

passed the walk and turn and one leg stand field sobriety tests, even while constantly talking,




       15
          The OAH found, and Mr. Hill concedes, that Officer Delgado had reasonable
suspicion to initiate the traffic stop. The disputed issue in this case is whether, after the
traffic stop, there was probable cause for the arrest.

                                              16

is evidence in his favor.16 Contrasted with those assessments, however, is the evidence of

Mr. Hill’s driving. The deputy testified that Mr. Hill almost caused a head-on collision

requiring the officer to take quick evasive action. Even though Mr. Hill’s lawyer tried to

challenge the deputy’s description of the avoided collision, during his own testimony Mr.

Hill conceded that he had been driving more toward the center of the roadway, that he had

to swerve to avoid hitting the police car, and that he immediately knew the officer was going

to pull him over because of his driving. This evidence of erratic driving does not go just to

the issue of whether the traffic stop was justified; it is also evidence that Mr. Hill was driving

while under the influence. Moreover, Mr. Hill had the odor of alcohol on his breath, had

bloodshot and glassy eyes, exhibited some unsteadiness while standing, had a slight slur

when speaking, and talked in a continuous and excited manner. He admitted to the deputy

that he drank beer before he drove the car, but he believed he was in a better condition to

drive than were his friends. This was sufficient to establish probable cause to arrest Mr. Hill

for DUI. When finding otherwise, the OAH and the circuit court imposed a level of proof

that exceeds what is required to establish probable cause.




       16
         Because the HGN and PBT results were disregarded due to concerns about the
officer’s administration of those tests, the HGN and PBT neither favor nor disfavor a finding
of DUI.

                                               17

                 C. Secondary Chemical Breath Test and Revocation

              After concluding that there was probable cause to arrest, we turn to the issue

of whether the license revocation was proper. “The principal question at the [administrative

license revocation] hearing shall be whether the person did drive a motor vehicle while under

the influence of alcohol . . . or did drive a motor vehicle while having an alcohol

concentration in the person’s blood of eight hundredths of one percent or more, by weight[.]”

W.Va. Code § 17C-5A-2(e). We have held that

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

Syl. Pt. 2, Albrecht v. State, 173 W.Va. 268, 314 S.E.2d 859 (1984).



              In addition to the evidence that provided probable cause to arrest Mr. Hill for

DUI, Mr. Hill registered a .108 BAC on the secondary chemical breath test. Pursuant to

West Virginia Code § 17C-5-8(a)(3) (2004), a chemical test result of .08 or more within two

hours of arrest is prima facie evidence that the person was under the influence of alcohol.17




       17
         The 2004 version of West Virginia Code § 17C-5-8 applies to this case. When the
statute was amended in 2013, this presumption was redesignated as § 17C-5-8(b)(3).

                                             18

              The OAH’s order did not mention Mr. Hill’s secondary chemical breath test,

undoubtedly because the OAH found that the arrest was unlawful and the secondary test was

administered after the arrest. See W.Va. Code § 17C-5-4(c) (2010) (stating that secondary

test of breath is incidental to lawful arrest). Despite the OAH’s silence on the issue, the

circuit court considered the secondary chemical breath test and concluded that the result

should be excluded from evidence. However, the circuit court’s conclusions regarding the

secondary test were based upon the court’s mistaken interpretation of a legislative rule. As

set forth above, we apply a de novo standard of review to questions of law. Muscatell, 196

W.Va. at 590, 474 S.E.2d at 520, syl. pt. 1.



              To be admissible into evidence and give rise to a presumption of DUI, a

secondary chemical test must be performed in accordance with methods and standards

approved by the Bureau for Public Health. W.Va. Code § 17C-5-8(c) (2004); Syl. Pt. 4, State

v. Dyer, 160 W.Va. 166, 233 S.E.2d 309 (1977).18 To that end, the Bureau promulgated a

legislative rule requiring a twenty-minute observation period prior to the administration of

a secondary breath test:




       18
         The 2004 version of this statute was in effect at the time of Mr. Hill’s arrest. When
the statute was later amended, the requirement for performing a secondary chemical test in
accordance with approved methods and standards was redesignated as West Virginia Code
§ 17C-5-8(e)(1) (2013). When State v. Dyer was decided, this requirement was codified in
West Virginia Code § 17C-5A-5.

                                               19

                      The law enforcement officer shall keep the person being
              tested under constant observation for a period of twenty minutes
              before the [secondary breath] test is administered to insure that
              the person has nothing in his or her mouth at the time of the test
              and that he or she has had no food or drink or foreign matter in
              his or her mouth during the observation period.

W.Va. C.S.R. § 64-10-7.2(a) (2005). When discussing the requirements of this rule, the

circuit court made two errors.



              First, the circuit court found that “[t]he most reliable evidence of the start of

the observation period is generally the time of execution of the West Virginia Implied

Consent warning.” The circuit court went on to note that Mr. Hill executed the implied

consent form at 3:54 a.m., while the printer ticket from the secondary breath test device

indicated that Mr. Hill’s breath sample was obtained at 4:11 a.m., a total of seventeen

minutes later. The circuit court found that this “clearly indicates the arresting officer did not

observe Hill for the full twenty minutes required under the aforementioned rule.”



              The circuit court’s rationale is simply not supported by the plain language of

C.S.R. § 64-10-7.2(a). Beginning the observation period from the time when the implied

consent form is signed would be a convenient way to ensure that the twenty-minute period

is observed. However, the rule does not mandate that obtaining a signature on a form be the

starting point for the observation. The rule only requires that the twenty-minute observation

period occur before the administration of the test. In the case sub judice, so long as Deputy

                                               20

Delgado constantly observed that Mr. Hill had no food, drink, or foreign matter in his mouth

in the twenty minutes immediately preceding the administration of the secondary breath

test–which would include the three minutes before the implied consent form was signed–then

the deputy fully complied with the pre-test observation requirement.



              The evidence in the record shows that Deputy Delgado did have Mr. Hill under

constant observation for twenty minutes prior to administering the secondary breath test.

Deputy Delgado affirmatively testified that he ensured that Mr. Hill had nothing in his mouth

for a period “well longer” than twenty minutes prior to the test, and that Mr. Hill was in his

presence and view for the entire twenty-minute period. The officer added that the only time

Mr. Hill was allowed to leave his sight was after the test was completed, when Mr. Hill was

allowed to use the restroom. This evidence was unrefuted at the hearing.19



              Second, the circuit court misapplied the requirement in C.S.R. § 64-10-7.2(a)

that the observation be “constant.”      The circuit court found that Deputy Delgado’s

observation was not “constant” because the deputy readied and entered data into the

secondary breath testing device during the twenty-minute observation period. The circuit

court based this finding upon the device’s printer ticket that showed a test sequence occurring


       19
         Mr. Hill did not testify about the length of time that he was observed prior to taking
the secondary chemical test. As to whether he had anything in his mouth, Mr. Hill testified
only that he spit out some chewing gum before taking the PBT during the traffic stop.

                                              21

at 4:08 a.m., which was three minutes before Mr. Hill blew into the machine. Even though

it was uncontested that Mr. Hill was in the deputy’s presence the entire time, the circuit court

found that it would be “impossible” for the deputy to have “constantly” observed Mr. Hill

while performing tasks on the machine.



              With this ruling, the circuit court has interpreted the legislative rule to require

that a law enforcement officer may never divert his or her eyes from the person to be tested,

even when the person is in close proximity to the officer. We disagree. The regulation does

not limit the period of constant observation to “constant visual observation,” and a law

enforcement officer can ensure that a person has nothing in his or her mouth without fixedly

staring at the person for the entire twenty-minute period. In addition to visually observing,

an officer who is in close proximity may rely on his other senses, including hearing and

smell, to maintain a constant observation of the test subject.



              Other jurisdictions with regulations similar to our rule are in agreement. For

example, in State v. Smith, 547 A.2d 69 (Conn. App. Ct. 1988), the Connecticut Appellate

Court considered a regulation requiring a DUI suspect to be under “continuous observation”

for fifteen minutes prior to the administration of the breath test. The court held that this

regulation must be interpreted with reference to its stated purpose of ensuring that the person

being tested had not ingested food or beverages, regurgitated, or smoked. Id., 547 A.2d at


                                              22

73. The court determined that an officer could ensure that those activities did not occur

without “fix[ing] his unswerving gaze upon a subject” during the observation period, and a

contrary interpretation “would not only be practically impossible to perform but would allow

a subject to thwart compliance with the regulation simply by turning his head away from the

observing officer.” Id.



              In State v. Remsburg, 882 P.2d 993 (Idaho Ct. App. 1994), the Idaho Court of

Appeals considered a criminal DUI defendant’s claim that she was not “closely observed”

during the secondary breath test’s observation period because the officer’s attention was

briefly diverted while programming the testing machine, waiting for the machine to warm

up, and reading the advisory form to the suspect. As a matter of law, the court rejected the

argument that continuous, direct, visual observation was required for the entire observation

period. Id., 882 P.2d at 995-996.



              Likewise, the Illinois Court of Appeals ruled that a DUI suspect was under the

required period of “continuous observation” even though, during the six minutes immediately

preceding the administration of the secondary breath test, the officer focused his attention on

resetting the testing machine. In re Ramos, 508 N.E.2d 484, 485-86 (Ill. App. Ct. 1987).

The evidence showed that the officer never left the suspect, who was within the officer’s

peripheral vision; that there was no water fountain or food in the area; and that the officer


                                              23

did not smell smoke or see vomit. Id. The court affirmed the revocation of the driver’s

license.20



              We do not overlook the possibility that the period of constant observation, once

begun, could be disrupted by the acts or omissions of a law enforcement officer. As another

court sagely noted, “[a]n officer’s observation should be of the sort capable of detecting

contamination if it actually occurred. Thus, an officer who looks away must be close enough

to detect contamination through aural or olfactory senses.” State v. Filson, 976 A.2d 460,

469 (N.J. Super. 2009).



              Accordingly, we now hold that the requirement in West Virginia C.S.R. § 64­

10-7.2(a) (2005) that a law enforcement officer shall keep the person being tested under

constant observation for a period of twenty minutes before administering a secondary


       20
         See also Glasmann v. State, Dept. of Revenue, 719 P.2d 1096, 1097 (Colo. App.
1986) (finding that regulation requiring “close and continuous observation” does not require
officer to stare fixedly at test subject, rather, compliance is question of fact); Webb-
Buckingham v. Delaware, No. 0612020853 PLA., 2009 WL 147020 (Del. Super. Ct. 2009)
(finding DUI suspect was under “continuous” and “uninterrupted” observation while officer
completed paperwork nearby); People v. Chairavalle, No. 4-14-0445, 2014 WL 7215765 (Ill.
App. Ct. Dec. 19, 2014) (finding that observation may be accomplished by using senses in
addition to sight); State v. Scheffert, 778 N.W.2d 733, 741 (Neb. 2010) (finding that
observation does not require officer to stare fixedly at person being tested); State v. Filson,
976 A.2d 460 (N.J. Super. 2009) (recognizing that purpose of observation period may be
satisfied through officer’s visual, aural, or olfactory senses); Peterson v. Wyoming Dept. of
Transp., 158 P.3d 706 (Wyo. 2007) (finding DUI suspect was under observation while
officer readied Intoximeter machine).

                                              24

chemical breath test does not require uninterrupted visual monitoring. The observation may

be accomplished by the officer’s use of his or her visual, auditory, and olfactory senses. The

manner in which the officer conducts the observation period must serve the purpose of

ensuring that the person being tested has nothing in his or her mouth at the time of the test

and has had no food, drink, or foreign matter in his or her mouth during the observation

period. If the officer diverts his eyes from the person being observed, the officer must be in

close enough proximity to be able to constantly detect with his other senses whether the

person has food, drink, or foreign matter in his or her mouth.21



              In this case, Deputy Delgado testified that Mr. Hill was in his presence and

view during the entire twenty-minute observation period, and that he ensured Mr. Hill had

nothing in his mouth during that period. There is no evidence in the record to contradict this

testimony or otherwise indicate that the secondary breath test result was compromised. For

example, there was no evidence that the deputy left the immediate area where Mr. Hill was

being held, no evidence that the deputy was distracted by other people, and no evidence of

food or drink that Mr. Hill could have covertly ingested when the deputy’s eyes were



       21
         If the law enforcement officer is unable to personally maintain the entire twenty-
minute period of constant observation, another officer may provide assistance. In
McCormick, 231 W.Va. at 634, 749 S.E.2d at 233, we ruled that the twenty-minute
observation period was satisfied when the arresting state trooper left the room but another
trooper remained to observe the suspect. “The regulation does not require the observation
period be made by the person who administers the Intoximeter test.” Id.

                                             25

momentarily diverted. There is nothing in the record to indicate that performing tasks at the

testing device interrupted Deputy Delgado’s ability to constantly observe Mr. Hill.

Consequently, we find that the circuit court erred when excluding from evidence Mr. Hill’s

secondary chemical breath test result.



               The preponderance of the evidence in this case, including the events leading

up to the arrest and the result of the secondary chemical breath test, prove that Mr. Hill was

DUI on October 24, 2010. Accordingly, we conclude that the circuit court erred in affirming

the OAH’s order that overturned the Commissioner’s revocation order.



                                      IV. Conclusion

               For the reasons set forth herein, we reverse the circuit court’s December 30,

2013, order.     This case is remanded to the circuit court for reinstatement of the

Commissioner’s order administratively revoking Mr. Hill’s driver’s license.



                                                   Reversed and Remanded with Directions.




                                             26

