        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                 September 2013 Term
                                                                FILED
                                                            October 17, 2013
                                                               released at 3:00 p.m.
                                      No. 12-1273              RORY L. PERRY II, CLERK
                                                             SUPREME COURT OF APPEALS
                                                                 OF WEST VIRGINIA




               STEVEN O. DALE, ACTING COMMISSIONER,
             WEST VIRGINIA DIVISION OF MOTOR VEHICLES,
                      Respondent Below, Petitioner


                                          V.


                               AMANDA DINGESS,
                           Petitioner Below, Respondent



                  Appeal from the Circuit Court of Boone County
                     Honorable William S. Thompson, Judge
                            Civil Action No. 11-C-218

                          REVERSED AND REMANDED


                               Submitted: October 2, 2013
                                 Filed: October 17, 2013


Patrick Morrisey                                     Matthew M. Hatfield
Attorney General                                     Hatfield & Hatfield, PLLC
Elaine L. Skorich                                    Madison, West Virginia
Assistant Attorney General                           Attorney for the Respondent
Charleston, West Virginia
Attorneys for the Petitioner

The Opinion of the Court was delivered PER CURIAM.
                               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

                                                 i
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.’” Syllabus point 2, Shepherdstown Volunteer Fire

Department v. State ex rel. State of West Virginia Human Rights, 172 W. Va. 627, 309

S.E.2d 342 (1983).



              4.     “[A] reviewing court is obligated to give deference to factual findings

rendered by an administrative law judge, a circuit court is not permitted to substitute its

judgment for that of the hearing examiner with regard to factual determinations.” Syllabus

point 2, in part, Cahill v. Mercer County Board of Education, 208 W. Va. 177, 539 S.E.2d

437 (2000).



              5.      “W. Va. Code § 17C-5A-1a (a) (1994) does not require that a police

officer actually see or observe a person move, drive, or operate a motor vehicle while the

officer is physically present before the officer can charge that person with DUI under this

statute, so long as all the surrounding circumstances indicate the vehicle could not otherwise

be located where it is unless it was driven there by that person.” Syllabus point 3, Carte v.

Cline, 200 W. Va. 162, 488 S.E.2d 437 (1997).

              6.     “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

                                              ii
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.” Syllabus point 2, Albrecht v. State, 173 W. Va. 268, 314 S.E.2d 859

(1984).




                                              iii
Per Curiam:

              The respondent below and petitioner herein, Steven O. Dale,1 Acting

Commissioner of the West Virginia Division of Motor Vehicles (“the DMV”), appeals from

an order by the Circuit Court of Boone County. The DMV had issued an order of revocation

for the driver’s license of the petitioner below and respondent herein, Amanda Dingess

(hereinafter “Ms. Dingess”), for driving under the influence of alcohol (hereinafter “DUI”).

The Office of Administrative Hearings (“OAH”) held an administrative hearing and, through

an October 18, 2011, order, upheld the DMV’s revocation for DUI. In its order entered

September 5, 2012, the circuit court reversed the order of revocation and reinstated the

driving privileges of Ms. Dingess. On appeal to this Court, the DMV argues that the circuit

court’s reversal of the OAH’s order was contrary to law. Specifically, the DMV argues that

the circuit court failed to afford proper deference to the rulings made during the underlying

administrative process and, further, that the lower court erred in its application and statement

of the law. Based upon the parties’ arguments, the appendix record designated for our

consideration, and the pertinent authorities, we reverse the circuit court’s reinstatement of

Ms. Dingess’s driving privileges. Further, the case is remanded for reentry of the DMV’s

revocation order.




              1
                Acting Commissioner, Steven O. Dale, replaced the former commissioner as
the named party. See W. Va. R. App. Proc. 41(c) (“When a public officer . . . ceases to hold
office, the action does not abate and his successor is automatically substituted as a
party. . . .”).

                                               1
                                                I.

                      FACTUAL AND PROCEDURAL HISTORY

               The facts pertinent for consideration in this case began on August 14, 2010,

when Boone County Sheriff’s Deputy Hess responded to a 911 call reporting an accident

involving two vehicles at the Tudor’s Biscuit World in Danville. A Madison City Police

Officer also responded. Also present at the scene were Ms. Dingess, her companion, and the

operator of the other car allegedly involved in a vehicle accident.2



               Ms. Dingess was described as loud and disruptive at the scene, and she refused

to answer the officers’ questions. Due to her behavior, Ms. Dingess was arrested for

“obstructing an officer.” Deputy Hess subjected Ms. Dingess to three field sobriety tests:

the horizontal gaze nystagmus test, the walk and turn test, and the one-leg stand test. Ms.

Dingess failed all three.3 Thereafter, Ms. Dingess was transported to the police station4 and

               2
                There was no damage to either car and Deputy Hess did not write an accident
report.
               3
                Ms. Dingess later claimed that she failed the one-leg stand test and the walk
and turn test because she was suffering with a broken toe. However, prior to administering
the tests, Deputy Hess questioned Ms. Dingess as to any factors that may interfere with her
ability to follow the testing guidelines. Ms. Dingess answered that no such factors existed.
               4
                The record indicates that Ms. Dingess attempted to take a secondary chemical
test while at the station; however, her asthma prevented her from doing so. We note that a
secondary chemical test is not required to administratively revoke a person’s driving
privileges. See Coll v. Cline, 202 W. Va. 599, 609-10, 505 S.E.2d 662, 672-73 (1998)
(“Although the results of the secondary chemical test are not a jurisdictional prerequisite . . . .
where a secondary chemical test has been conducted, the arresting officer is unequivocally
                                                                                  (continued...)

                                                2
arrested for DUI.5

               `

               On September 8, 2010, the DMV sent Ms. Dingess an Order of Revocation for

DUI and for refusing to take a secondary chemical test. Ms. Dingess timely filed a request

for an administrative hearing. At the February 17, 2011, administrative hearing, Deputy Hess

testified that he had not seen Ms. Dingess behind the wheel of a car on the night of her arrest,

but that she had admitted to him that she had been driving. Deputy Hess also testified that

the companion who was with Ms. Dingess told Deputy Hess that he was not driving that

evening. Finally, Deputy Hess testified that Ms. Dingess was unsteady on her feet, staggered

as she walked, her speech was slurred, her breath smelled of alcohol, and her eyes were

bloodshot and glassy. During the same hearing, Ms. Dingess testified that, on the night of her

arrest, she had not driven a car and was not under the influence of alcohol.


               4
               (...continued)
required to submit the results of that test[.]”).
               5
              The DUI charge ultimately was dismissed by the Boone County Magistrate
Court. However, we recently reiterated in Syllabus point 4 of Miller v. Epling, 229 W. Va.
574, 729 S.E.2d 896 (2012):
                     When a criminal action for driving while under the
             influence in violation of West Virginia Code § 17C-5-2 (2008)
             results in a dismissal or acquittal, such dismissal or acquittal has
             no preclusive effect on a subsequent proceeding to revoke the
             driver’s license under West Virginia Code § 17C-5A-1 et seq.
             Moreover, in the license revocation proceeding, evidence of the
             dismissal or acquittal is not admissible to establish the truth of
             any fact. In so holding, we expressly overrule Syllabus Point 3
             of Choma v. West Virginia Division of Motor Vehicles, 210
             W. Va. 256, 557 S.E.2d 310 (2001).

                                                3
              The OAH entered its final order on October 18, 2011. The order upheld the

DMV’s revocation of Ms. Dingess’s license on the ground that the DMV had established, by

a preponderance of the evidence, that Ms. Dingess had operated a vehicle under the influence

of alcohol at the time of the accident. However, the OAH reversed the DMV’s finding that

Ms. Dingess had refused to submit to a secondary chemical test.6 Ms. Dingess timely

appealed the OAH’s order to the circuit court.



              By order entered September 5, 2012, the circuit court reversed the order of the

OAH based on its finding that Ms. Dingess testified that she had not driven the car; that

Deputy Hess admitted that he did not see Ms. Dingess drive the car, and, finally, that Ms.

Dingess’s companion was present and could have been driving the car.7 The DMV filed this

appeal.



                                            II.

                               STANDARD OF REVIEW

              In this case, the DMV appeals the circuit court’s reversal of the OAH’s

administrative revocation of Ms. Dingess’s driver’s license. The standard of review has been

articulated as follows:


              6
               See note 4, infra.
              7
               The circuit court came to this conclusion despite the fact that Deputy Hess
reported that the companion denied that he had driven the car.

                                             4
                     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). Moreover, because

the circuit court altered the decision by the underlying agency, we are guided by the principle

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.” Syl. pt. 2, Muscatell, id. Mindful of these applicable standards, we now

consider the substantive issues raised herein.



                                             III.

                                       DISCUSSION

              On appeal, the DMV argues that the circuit court erred in reversing the OAH

order that revoked Ms. Dingess’s driver’s license.8 Further, the DMV contends that the



              8
               Specifically, the DMV sets forth that the circuit court erred in the following
ways: finding relevant that the car accident occurred on private property, affording
significance to the dismissal of Ms. Dingess’s criminal DUI charge, giving preference to
testimonial evidence over documentary evidence, excluding the evidence of Ms. Dingess’s
performance on the field sobriety tests, substituting its judgment for that of the hearing
examiner on credibility issues, failing to set forth the manner in which the OAH violated
W. Va. Code § 29A-5-4(g) (1998) (Repl. Vol. 2012), misstating the law in its final order, and
relying on only a portion of the arresting officer’s testimony.

                                              5
revocation order should be reinstated. Conversely, Ms. Dingess asserts that the circuit

court’s reinstatement of her driving privileges should be affirmed. While the DMV sets forth

several assignments of error, we determine that the evidence was sufficient for an

administrative license revocation and, accordingly, we decline to address the assignments of

error in a piecemeal fashion.



              In this case, the DMV and the OAH determined that Ms. Dingess drove a

motor vehicle while under the influence of alcohol. A guiding principle has been that “[w]e

must uphold any of the [administrative agency’s] factual findings that are supported by

substantial evidence, and we owe substantial deference to inferences drawn from these

facts[.]” Webb v. West Virginia Bd. of Medicine, 212 W. Va. 149, 156, 569 S.E.2d 225, 232

(2002) (per curiam) (quoting Martin v. Randolph County Bd. of Educ., 195 W. Va. 297, 304,

465 S.E.2d 399, 406 (1995)). See also Syl. pt. 2, Shepherdstown Volunteer Fire Dept. v.

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

(“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

                                               6
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.’”).



              On the night of the arrest, Deputy Hess made a record on a “DUI Information

Sheet,” wherein he transcribed that Ms. Dingess admitted that, “I was driving but I didn’t hit

the truck.” Despite this admission at the scene of the incident, the circuit court gave greater

weight to Ms. Dingess’s testimony at the administrative hearing that she was not driving on

the night in question and that she was not intoxicated. In Groves v. Cicchirillo, 225 W. Va.

474, 481, 694 S.E.2d 639, 646 (2010) (per curiam), this Court stated that there is no

preference for testimonial evidence in driver’s license revocation proceedings. Therefore,

the circuit court was incorrect when it elevated Ms. Dingess’s hearing testimony over the

testimony of Deputy Hess that was in agreement with his contemporaneous documentary

evidence recorded on the DUI Information Sheet.



              Another factual determination involves the three field sobriety tests. Prior to

conducting the tests, Deputy Hess asked Ms. Dingess if she had any injuries that would affect

her performance of the tests, to which she replied, “No.” Thus, even though she had an

opportunity to mention a broken toe, she did not. Moreover, Ms. Dingess failed to present

any evidence at the administrative hearing in support of her broken-toe claim. Despite these

                                              7
facts, the circuit court substituted its judgment for that of the OAH and found that Ms.

Dingess’s broken toe would have affected her performance on all three field sobriety tests,

including the horizontal nystagmus gaze (“HGN”) test. In regard to the HGN test, the DMV

argues that a broken toe would not have affected its results. Moreover, the OAH (1) found

that Deputy Hess properly assessed Ms. Dingess’s eyes prior to the HGN test, (2) did not find

that the Deputy erred in administering the test, and (3) ruled that Ms. Dingess failed the test.



              As this Court has stated, “a reviewing court is obligated to give deference to

factual findings rendered by an administrative law judge, a circuit court is not permitted to

substitute its judgment for that of the hearing examiner with regard to factual

determinations.” Syl. pt. 2, in part, Cahill v. Mercer County Bd. of Educ., 208 W. Va. 177,

539 S.E.2d 437 (2000). In the present case, the hearing examiner listened to Ms. Dingess’s

and Deputy Hess’s conflicting accounts of the events, observed their demeanor, and made

a determination that the Deputy was more credible. Specifically, the OAH found that

“respondent offered no credible rebuttal testimony regarding the indicia of physical

symptoms of intoxication observed by the investigating Officer and recorded on the . . . DUI

Information Sheet.” Lastly, we note that

                      W. Va. Code § 17C-5A-1a (a) (1994) does not require
              that a police officer actually see or observe a person move,
              drive, or operate a motor vehicle while the officer is physically
              present before the officer can charge that person with DUI under
              this statute, so long as all the surrounding circumstances indicate
              the vehicle could not otherwise be located where it is unless it
              was driven there by that person.

                                               8
Syl. pt. 3, Carte v. Cline, 200 W. Va. 162, 488 S.E.2d 437 (1997). Significantly, in the

present case, Deputy Hess testified and the “DUI Information Sheet” showed that Ms.

Dingess admitted that she was driving that evening but had not hit another vehicle. Further,

Ms. Dingess’s behavior at the scene was of a person who was irate, to the level of being

arrested for obstructing an officer. Also, she was staggering, unsteady, smelled of alcohol,

had slurred speech, and glassy, bloodshot eyes. She also failed the HGN. Moreover, Ms.

Dingess admitted to consuming an alcoholic beverage prior to her encounter with Deputy

Hess, and she was with her vehicle when the Deputy arrived on the scene.



              The OAH, in its final order, relied on Syllabus point 2 of Albrecht v. State, 173

W. Va. 268, 314 S.E.2d 859 (1984), which states:

                     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 standard to warrant the
              administrative revocation of his driver’s license for driving
              under the influence of alcohol.

Yet, the circuit court reversed the hearing examiner’s credibility findings, apparently by

giving significant weight to Ms. Dingess’s testimony that she was not driving and was not

under the influence when she was arrested, despite the evidence otherwise. The circuit court

improperly substituted its judgment for that of the hearing examiner. The evidence was

sufficient to warrant the administrative license revocation of Ms. Dingess.



                                              9
                                            IV.

                                     CONCLUSION

              For the foregoing reasons, the circuit court’s reversal of the revocation of Ms.

Dingess’s license is in error and, accordingly, is reversed. This case is remanded for the

circuit court to reinstate the order revoking Ms. Dingess’s license to drive.



                                                                   Reversed and Remanded.




                                             10
