                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


                                                                       FILED
Patricia S. Reed, Commissioner,
West Virginia Division of Motor Vehicles                            April 9, 2015
                                                                    released at 3:00 p.m.
Petitioner Below, Petitioner                                        RORY L. PERRY II, CLERK

                                                                  SUPREME COURT OF APPEALS

                                                                      OF WEST VIRGINIA

vs) No. 14-0040 (Kanawha County 13-AA-82)

David S. Littleton,

Respondent Below, Respondent



                                MEMORANDUM DECISION

       The petitioner, Patricia S. Reed,1 Commissioner of the West Virginia Division of
Motor Vehicles, appeals the December 16, 2013, order of the Circuit Court of Kanawha
County that affirmed the May 28, 2013, order of the Office of Administrative Hearings
(“OAH”). The OAH’s order reversed two related administrative orders issued by the
Commissioner on September 16, 2010: an order revoking the respondent David S. Littleton’s
driver’s license for ninety days, and a separate order disqualifying Mr. Littleton from
operating commercial motor vehicles for one year.2 The Commissioner’s orders were based
upon information provided by a West Virginia State Trooper that Mr. Littleton was driving
under the influence of alcohol (“DUI”) on August 6, 2010.

      In this appeal, the Commissioner, by counsel Elaine L. Skorich, argues that the
revocation and disqualification orders should have been upheld. Mr. Littleton, by counsel
John Michael Cassell, urges this Court to affirm the circuit court’s and OAH’s orders. This
Court has before it the parties’ briefs and the appendix record, and counsel for the



       1
        This appeal was filed by Steven O. Dale when he was the Acting Commissioner of
the Division of Motor Vehicles. Pursuant to Rule 41(c) of the Rules of Appellate Procedure,
the current Commissioner, Patricia S. Reed, was automatically substituted as the named
petitioner.
       2
           Mr. Littleton held a commercial driver’s license.

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Commissioner presented oral argument on February 10, 2015.3 After carefully considering
the evidence, arguments, and pertinent legal authority, we conclude that it was error to
reverse the Commissioner’s September 16, 2010, revocation and disqualification orders.
Moreover, because this case presents no new or substantial questions of law, it satisfies the
“limited circumstances” requirement of Rule 21(d) of the Rules of Appellate Procedure for
disposition by memorandum decision.

                RELEVANT FACTUAL AND PROCEDURAL HISTORY

       The Commissioner’s September 16, 2010, revocation order was issued pursuant to
West Virginia Code § 17C-5A-1 (2008), which provides that the Commissioner shall revoke
or suspend the license of a person who drives a motor vehicle while under the influence of
alcohol or while having an alcohol concentration in his blood (“BAC”) of .08 or more, by
weight. The companion order arising from this same DUI episode disqualified Mr. Littleton
from operating commercial motor vehicles pursuant to West Virginia Code §§ 17E-1-13
(2010) and 17E-1-15 (2005).

        Mr. Littleton challenged those orders before the OAH. At the administrative hearing,
State Trooper M. J. Glende testified that on the night of August 6, 2010, he was conducting
a routine road patrol when he saw a car weaving in the roadway and displaying defective
registration lights. On the DUI Information Sheet, which was admitted into evidence at the
hearing, the trooper recorded that the vehicle was weaving and swerving, that the tires were
on the road’s line marker, and that the vehicle had defective equipment.

        Trooper Glende turned on his cruiser’s flashing lights and stopped the car, which was
being driven by Mr. Littleton and contained a passenger, Patricia Painter.4 The trooper
smelled a strong odor of alcohol on Mr. Littleton’s breath and observed that Mr. Littleton had
bloodshot eyes. Mr. Littleton admitted to the trooper that he had just left the Moose Lodge
where he had consumed “a couple” of alcoholic drinks before driving. The trooper, who is
also a DUI field sobriety instructor, testified regarding his administration of three field
sobriety tests: the horizontal gaze nystagmus, the walk and turn, and the one leg stand. As
reflected in the DUI Information Sheet, the trooper testified that Mr. Littleton failed all three
field tests. Mr. Littleton also failed a preliminary breath test with a result of .102 BAC. The
trooper arrested Mr. Littleton for DUI and transported him to the police station, where he
registered a BAC of .096 on the secondary chemical breath test.

       3
      Mr. Littleton waived the opportunity to have his lawyer participate in the oral
argument.
       4
           Ms. Painter was the owner of the car.

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        While Mr. Littleton did not testify at the OAH hearing, he did present testimony from
Ms. Painter. She asserted that on the night in question, Mr. Littleton’s driving was fine, there
was no weaving, and he did not appear to be drunk. Ms. Painter testified that upon hearing
the trooper say that the vehicle’s registration light was out, she exited the car and saw that
the light was illuminated. According to Ms. Painter, she questioned the trooper about the
light and he answered that the light looked dim.

        In its order, the OAH completely discredited the trooper’s testimony and, relying upon
Ms. Painter’s assurances that Mr. Littleton’s driving had been fine, ruled that the trooper
lacked reasonable suspicion to stop the vehicle. Because the OAH found that the stop was
illegal, it disregarded all evidence obtained as a result of the stop and, consequently,
overturned the administrative revocation and disqualification orders. Thereafter, the circuit
court affirmed the OAH’s decision.

                                       DISCUSSION

       The dispositive issue in this case is whether Trooper Glende was legally justified in
stopping the vehicle driven by Mr. Littleton. The law is well-settled 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[.]’ Syllabus point 1, in part, State v. Stuart, 192 W.Va. 428, 452
S.E.2d 886 (1994).” Syl. Pt. 3, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996).
When rendering a decision on a license revocation, the OAH is required to make a finding
as to whether a driver was lawfully placed under arrest. W.Va. Code § 17C-5A-2(f)(2)
(2010). In Dale v. Ciccone, 233 W.Va. 652, 760 S.E.2d 466 (2014), we restated our prior
rulings that an individual cannot be considered lawfully arrested for DUI if the officer lacked
reasonable suspicion to initiate the traffic stop. Id., 233 W.Va. at 658-59, 760 S.E.2d at 472­
73.

        In the instant case, whether Trooper Glende had reasonable suspicion to initiate the
traffic stop is a question of fact. We have held that “[o]n appeal of an administrative order
from a circuit court . . . findings of fact by the administrative officer are accorded deference
unless the reviewing court believes the findings to be clearly wrong.” Muscatell, 196 W.Va.
at 590, 474 S.E.2d at 520, syl. pt. 1, in part. Furthermore, West Virginia Code § 29A-5-4(g)
(1998) provides that a court “shall reverse, vacate or modify” an administrative decision that
is “[c]learly wrong in view of the reliable, probative and substantial evidence on the whole
record; or [is] . . . [a]rbitrary or capricious or characterized by an abuse of discretion or
clearly unwarranted exercise of discretion[.]” Syl. Pt. 2, in part, Shepherdstown Volunteer
Fire Dept. v. State ex rel. State of W.Va. Human Rights Comm’n, 172 W.Va. 627, 309 S.E.2d

                                               3

342 (1983).

        The OAH found inconsistencies between the testimony offered by Trooper Glende
and Ms. Painter. “Where there is a direct conflict in the critical evidence upon which an
agency proposes to act, the agency may not elect one version of the evidence over the
conflicting version unless the conflict is resolved by a reasoned and articulate decision,
weighing and explaining the choices made and rendering its decision capable of review by
an appellate court.” Muscatell, 196 W.Va. at 590, 474 S.E.2d at 520, syl. pt. 6. The OAH
rejected Trooper Glende’s testimony upon finding that the trooper “could not recall with any
specificity during cross-examination the circumstances or events which occurred that resulted
in the traffic stop[.]” However, a review of the record demonstrates that the OAH’s findings
in this regard are clearly wrong.

        The information that Trooper Glende could not recall with specificity concerned
events just prior to when he observed the Littleton/Painter vehicle. The trooper testified that
he had been patrolling, but Ms. Painter testified that the police cruiser had been stopped on
a property near the Moose Lodge. The trooper testified he did not see Mr. Littleton pull out
of the Moose Lodge. When asked if Mr. Littleton had pulled out in front of him, the trooper
testified, “I don’t believe so. I believe I looked up and saw that he had registration lights out,
and he was weaving in the roadway, and so I initiated a traffic stop.” When asked if he had
made a “u-turn,” the trooper indicated that he could not remember because he had patrolled
the same road, back and forth, for six hours that night. Based on this, the OAH labeled the
trooper’s testimony as “inconclusive, inconsistent, rambling, and vague” and proceeded to
reject the testimony in total.

        The OAH’s findings are simply not supported by the record. Considering that the
trooper had patrolled the same road for six hours that night, it is understandable, and of no
consequence, that he could not recall exactly where he was before he noticed the
Littleton/Painter vehicle. Trooper Glende did recall and affirmatively testified that he “first
observed [the] vehicle . . . when I was behind [it] going south on [route] 115.” Ms. Painter’s
testimony is consistent in that she said the trooper was behind them when he initiated the
traffic stop. Moreover, the trooper testified with certainty that upon observing the vehicle,
he saw that Mr. Littleton was weaving and driving with his tires on the line marker, and that
the vehicle had a defective registration light. The trooper was also able to recall details about
the administration of the field sobriety tests. The witnessing of erratic driving, the initiation
of a traffic stop, and the administration of field tests are all noteworthy events that the officer
would likely remember–especially when the individual fails each of the tests. The trooper’s
inability to recall unremarkable and insignificant details of that night’s patrol does not mean
that he was lying about the basis for the traffic stop nor does it warrant a rejection of his
testimony.

                                                4

        Furthermore, when choosing to believe Ms. Painter instead of the officer, the OAH
arbitrarily failed to consider–or even mention–the inconsistencies in Ms. Painter’s own
testimony. The OAH credited Ms. Painter’s assertion that Mr. Littleton did not appear to be
drunk, yet her testimony varied about the amount of alcohol he consumed at the Moose
Lodge. She claimed he only consumed “a drink”; that he took “like, one little drink from a
beer can”; and that he had “just a couple” of drinks. She then admitted that she “wasn’t
really focused on him. I was on the dance floor.” Furthermore, although she heard the
trooper ask Mr. Littleton whether he had been drinking, she claimed she could not hear Mr.
Littleton’s response despite being seated next to him in the car.

        Accordingly, after carefully considering the entire appendix record and applying the
deferential standard of review for findings of fact, we are left with the inescapable
conclusion that the OAH was clearly wrong to discount the trooper’s testimony that Mr.
Littleton was weaving and driving with his tires on the line marker. This type of erratic
driving is sufficient to give a law enforcement officer an articulable reasonable suspicion to
stop a vehicle. E.g., Ciccone, 233 W.Va. at 660, 760 S.E.2d at 474 (recognizing that
weaving and swerving present reasonable suspicion for traffic stop).

       Having concluded there was reasonable suspicion for the stop, there can be no dispute
that Mr. Littleton was DUI. He smelled of alcohol, had bloodshot eyes, and admitted to the
trooper that he consumed “a couple” of alcoholic drinks at the Moose Lodge before driving.
Moreover, he failed three field sobriety tests, the preliminary breath test, and the secondary
chemical breath test with a result of .096 BAC. Pursuant to statute, secondary chemical test
evidence showing a BAC of .08 or more is prima facie evidence that a person is under the
influence of alcohol. W.Va. Code § 17C-5-8(a)(3) (2004).5 None of this evidence was
rebutted at the administrative hearing. Under these circumstances, the Commissioner was
required to revoke Mr. Littleton’s driver’s license. See W.Va. Code 17C-5A-1(c) (directing
that Commissioner “shall” revoke or suspend license of person who drove with BAC of .08
or more). We find that it was error for the OAH to overturn the Commissioner’s September
16, 2010 orders, and error for the circuit court to affirm the OAH.6

       5
        In 2013, this statutory presumption was redesignated as West Virginia Code § 17C-5­
8(b)(3).
       6
        We note that the Commissioner raises two additional assignments of error in this
appeal. First, the Commissioner argues that Mr. Littleton’s license is also subject to
revocation under a different statute, West Virginia Code § 17C-5A-1a (2010), which
provides for revocation after a person is convicted of DUI. While this administrative matter
was pending, Mr. Littleton pled guilty to first offense DUI in the related criminal case.
However, he later withdrew that guilty plea and a judgment of guilt was never entered. The

                                              5

       For the foregoing reasons, we reverse the circuit court’s December 16, 2013, order
and remand this case to the circuit court for reinstatement of the Commissioner’s September
16, 2010, administrative revocation and disqualification orders.7

                                                   Reversed and remanded with directions.


ISSUED: April 9, 2015

CONCURRED IN BY:

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


Commissioner argues that even though the judge presiding over the criminal case allowed
the guilty plea to be withdrawn, Mr. Littleton should nonetheless be deemed convicted for
purposes of license revocation. This issue was not raised before the circuit court. Because
we have concluded that Mr. Littleton’s license was properly revoked pursuant to West
Virginia Code § 17C-5A-1 on the basis of the evidence presented at the OAH hearing, we
decline to address the Commissioner’s alternate theory under § 17C-5A-1a. Second, the
Commissioner argues that even if Mr. Littleton’s arrest was unlawful, the only remedy should
have been the exclusion of the secondary chemical breath test result. We expressly rejected
this same argument in Ciccone. See 233 W.Va. at 659 n.8, 760 S.E.2d at 473 n.8.
       7
        The appendix record reflects that in addition to the September 16, 2010, orders, the
Commissioner issued separate orders on December 27, 2013, revoking Mr. Littleton’s
driver’s license and disqualifying him from operating commercial vehicles. The December
2013 orders were the result of the same DUI that occurred on August 6, 2010, but were
premised on the Commissioner’s alternate theory that Mr. Littleton should lose his license
as a result of his withdrawn guilty plea. See supra note 6. On February 5, 2015, Mr.
Littleton advised this Court that he has now served the periods of suspension and
disqualification imposed by the December 2013 orders. Although we decline to rule on the
validity of the Commissioner’s alternate theory, Mr. Littleton should not be required to lose
his license twice for the same incident of DUI. Accordingly, on remand, the circuit court
must ascertain whether Mr. Littleton has, in fact, already served his periods of suspension
and disqualification arising from his DUI on August 6, 2010. If he has, he shall not be
required to serve them again.

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