                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Steven O. Dale, Acting Commissioner,                                              FILED
West Virginia Division of Motor Vehicles,                                   November 21, 2014
Petitioner Below, Petitioner                                                 RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA
vs) No. 14-0056 (Kanawha County 12-AA-48)

Gary A. Barnhouse, Jr.,
Respondent Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Steven O. Dale, Acting Commissioner, West Virginia Division of Motor
Vehicles (“DMV”), by counsel Elaine L. Skorich, appeals the order of the Circuit Court of
Kanawha County entered December 30, 2013, that affirmed a final order of the Office of
Administrative Hearings (“OAH”). The OAH order, entered April 4, 2012, reversed the DMV
Commissioner’s Order of Revocation of Respondent Gary A. Barnhouse, Jr.’s operator’s license
for the offense of driving under the influence of alcohol (“DUI”). Respondent, by counsel
Gregory W. Sproles, filed a response in support of the circuit court’s order. The DMV filed a
reply.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

       On May 14, 2011, Corporal M. Z. Dietz of the Nicholas County Sheriff’s Department
(“Cpl. Dietz” or “the investigating officer”) followed respondent on Woodbine Road for
approximately one mile.1 After respondent turned off the road and into the driveway of his
passenger’s home, the investigating officer pulled in behind him and advised respondent that he
was being stopped because he was “left of center several times, over and back.” The DUI
Information Sheet that was completed by Cpl. Dietz indicated under “vehicle in motion” that
respondent’s vehicle was “weaving,” that the tires were on the “center marker,” and that it was
“braking erratically.” Cpl. Dietz testified that, while speaking with respondent, he detected the
odor of an alcoholic beverage emitting from the vehicle; that respondent’s eyes were bloodshot;

       1
         Cpl. Dietz observed respondent and his passenger, Michael Stinnett, purchasing beer at
a convenience store. Both respondent and Mr. Stinnett testified that they were aware that Cpl.
Dietz followed them onto Woodbine Road.


                                                1

and that respondent admitted to having consumed one beer approximately thirty minutes before
the traffic stop. Cpl. Dietz also noted on the DUI Information Sheet that respondent exited the
vehicle normally; that he walked to the roadside and stood normally; that his speech and attitude
were “ok;” and that he successfully completed the walk-and-turn and one-leg stand field sobriety
tests.2 Respondent was arrested for DUI and was transported to the Nicholas County Courthouse
where he was administered a secondary chemical test of the breath. The result of that test
revealed a blood alcohol content of .089%. By order entered June 16, 2011, respondent’s
operator’s license was revoked for DUI.

        At the administrative hearing, respondent presented witness testimony (including his
own) regarding the condition of Woodbine Road. The witnesses testified that, formerly,
Woodbine Road was a single lane road; that, a few years earlier, it was widened by
approximately one foot and a center line was added; that there are no fog lines along the side of
the road; that there is very little berm; and that other drivers, including respondent’s witnesses,
tend to stay close to the middle of the road. Respondent’s passenger, Michael Stinnett, testified
that respondent was not and did not appear intoxicated; that although the two men drove to a
local convenience store to purchase beer, they did not drink the beer in the car; and that
respondent did not drive abnormally. Respondent similarly testified that he did not weave while
driving; that he did not cross the center line; that he drank one beer approximately thirty minutes
before he was stopped; and that, contrary to Cpl. Dietz’s report that respondent was “braking
erratically,” he only used his brakes one time in a downhill curve.

        In addition to the foregoing evidence, respondent introduced into evidence a video
recorded by Cpl. Dietz while following behind respondent’s vehicle for approximately one mile
prior to the stop. The OAH found that this objective evidence demonstrated that respondent did
not brake erratically; that the vehicle did not cross the center line; and that, although Cpl. Dietz
followed respondent for almost one mile, he “did not attempt to make a traffic stop until
[respondent] signaled a turn and stopped in a driveway.” The OAH concluded that Cpl. Dietz

       did not have reasonable suspicion to stop the [respondent]. The Investigating
       Officer testified that he stopped the [respondent] for weaving, driving with tires
       touching center line, and braking erratically. On the videotape, the Investigating
       Officer tells the [respondent] that he was stopped because he had crossed the
       center line several times. The Investigating Officer was inconsistent in stating the
       reasonable suspicion for the traffic stop. When it is determined that reasonable
       suspicion was not present to stop the [respondent] then any actions taken after the
       unlawful stop cannot be considered.

       Thus, the OAH concluded that Cpl. Dietz “did not have reasonable grounds to believe the
[respondent] had been driving a motor vehicle in this State while under the influence of

       2
          A third field sobriety test—the horizontal gaze nystagmus test—was not properly
administered and, as a consequence, the result was not considered by the OAH. Similarly, the
results of a preliminary breath test were not considered by the OAH because there was no
evidence that Cpl. Dietz was certified to administer the test.


                                                 2

alcohol[,]” and that respondent “was not lawfully arrested for an offense described in West
Virginia Code § 17C-5-2.” Accordingly, by order entered April 4, 2012, the OAH reversed the
order that revoked respondent’s operator’s license for DUI.

       On appeal, the Circuit Court of Kanawha County concluded that the OAH’s findings and
conclusions were supported by substantial evidence and were not clearly wrong and affirmed the
reversal order by order entered December 30, 2013. This appeal followed.

       The applicable standard of review for these types of cases is 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.” Syl. Pt. 1, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518
       (1996).

Syl. Pt. 1, Dale v. Odum, 233 W.Va. 601, 760 S.E.2d 415 (2014). Furthermore, this Court has
made clear that “‘[e]videntiary findings made at an administrative hearing should not be reversed
unless they are clearly wrong.’ Syl. Pt. 1, Francis O. Day Co., Inc. v. Director, Div. of Envtl.
Prot., 191 W.Va. 134, 443 S.E.2d 602 (1994).” Odum, 233 W.Va. at __, 760 S.E.2d at 416, syl.
pt. 2.

        The DMV’s first assignment of error is that the circuit court clearly erred in affirming the
OAH’s finding that the stop of respondent’s vehicle was invalid. The DMV argues that both the
OAH and the circuit court placed too much emphasis on the fact that the “abbreviated reason”
for the stop that Cpl. Dietz gave respondent—that he crossed the center line several times—
differed slightly from the DUI Information Sheet and Cpl. Dietz’s testimony that indicated that
respondent was stopped for weaving on the roadway, having tires on the centerline marker, and
“braking erratically.” The DMV contends that this evidence is not inconsistent and that both the
OAH and circuit court clearly erred in finding that Cpl. Dietz did not have a reasonable suspicion
to stop respondent’s vehicle.

        This Court has 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[.]’ Syl. Pt. 1, in part, State v. Stuart,
192 W.Va. 428, 452 S.E.2d 886 (1994).” Syl. Pt. 3, Dale v. Ciccone, 233 W.Va. 652, 760 S.E.2d
466 (2014). We have also explained 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.’” Id. at syl. pt. 4
(quoting Stuart, 192 W.Va. at 428, 452 S.E.2d at 886, syl. pt. 2).

       Upon careful review of the entire record on appeal, we find no error. Notwithstanding
Cpl. Dietz’s testimony, the DUI Information Sheet (that Cpl. Dietz prepared), and the DMV’s
argument to the contrary, the video of respondent’s vehicle in no way shows it to be weaving in
the roadway or braking erratically. In fact, the video showed that respondent applied the brakes

                                                 3

only one time, as he proceeded down a hill and turned right into his passenger’s driveway.
Although it appeared on the video that, at times, respondent’s vehicle drove closely to the center
line, it does not show that it crossed over and back several times as Cpl. Dietz advised
respondent when he stopped the vehicle. Based upon the totality of the evidence, the OAH did
not clearly err in finding that Cpl. Dietz did not have a reasonable suspicion to stop respondent’s
vehicle.

        In related assignments of error, the DMV also argues that the circuit court erred by
ignoring the principal question at the revocation hearing—that is, whether respondent “did drive
a motor vehicle while under the influence of alcohol”3—and by further ignoring evidence that
respondent was driving while under the influence of alcohol. The DMV argues that both the
OAH and the circuit court should have considered the evidence that respondent’s breath smelled
of alcohol, that he had bloodshot eyes, and that he admitted to drinking a beer thirty minutes
before the stop.4 We disagree.

       Under West Virginia Code § 17C-5A-2(f)(2) (2010), the statute in effect at the time of
respondent’s arrest, the OAH is required to make the specific finding of, inter alia, “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[.]” Id., in relevant part.5 In Ciccone, we clarified that, under this
       3
           West Virginia Code § 17C-5A-2(e) (2010) provides:

               The principal question at the hearing shall be whether the person did drive
       a motor vehicle while under the influence of alcohol, controlled substances or
       drugs, 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, or did
       refuse to submit to the designated secondary chemical test, or did drive 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.
       4
          Although the DMV argues that the circuit court also ignored evidence that respondent
failed the horizontal gaze nystagmus and preliminary breath tests, the OAH found that the former
was not properly administered and the investigating officer was not certified to give the latter.
See n.2, supra. The DMV does not dispute the OAH’s findings in this regard.
       5
           West Virginia Code § 17C-5A-2(f) (2010) states 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 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
                                                 4
statute, “‘absent a valid investigatory stop, a finding that the ensuing arrest was lawful cannot be
made.’” 233 W.Va. at __, 760 S.E.2d at 473 (quoting Odum, 233 W.Va. at __, 760 S.E.2d at
420). Accordingly, “an individual cannot be considered lawfully arrested for DUI where law
enforcement did not have the requisite articulable reasonable suspicion to initiate the underlying
traffic stop.” Ciccone, 233 W.Va. at__, 760 S.E.2d at 473. As this Court has already determined,
the investigating officer in this case did not have the requisite articulable reasonable suspicion to
initiate a traffic stop and, thus, respondent was not lawfully placed under arrest. Thus, neither the
OAH nor the circuit court erred in not considering evidence garnered as a result of the invalid
stop. See Clower v. W.Va. Dept. of Motor Vehicles, 223 W.Va. 535, 543, 678 S.E.2d 41, 49
(2009), superseded by statute as stated in Dale v. Arthur, No. 13-0374 (W.Va. Supreme Court,
March 28, 2014) (memorandum decision) (upon finding that motorist “was not lawfully placed
under arrest because [investigating officer] did not have the requisite articulable reasonable
suspicion to initiate a traffic stop of Mr. Clower’s vehicle[]” under 2004 version of 17C-5A-2(e),
which required lawful arrest, Court concluded revocation was improper and did not address
evidence that motorist had slurred speech, smelled of alcohol, failed field sobriety tests, and had
blood alcohol content above legal limit.)

       For the foregoing reasons, we affirm.

                                                                                          Affirmed.

ISSUED: November 21, 2014

CONCURRED IN BY:

Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum



       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; and (4) whether the
       tests, if any, were administered in accordance with the provisions of this article
       and article five [§§ 17C-5A-5 et seq.] of this chapter.


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DISSENTING:

Justice Margaret L. Workman
Justice Allen H. Loughry II


LOUGHRY, Justice, dissenting:

        The majority of this Court is allowing a drunk driver to escape the revocation of his
driver’s license based upon the contents of a video recording captured by the arresting officer’s
patrol car camera. Having personally viewed this recording, I question whether the majority
watched the same video? The respondent’s car is clearly seen crossing the center line of the
roadway. In fact, at one point the respondent was driving on the center line in the face of an
oncoming vehicle, forcing the other car to move to the far side of the roadway to avoid a
collision. Unsurprisingly, Corporal Dietz, a trained law enforcement officer, immediately
recognized the signs of drunk driving.

        It is clear in this case that the respondent’s driving provided the officer with an
articulable reasonable suspicion to make a lawful traffic stop. See Syl. Pt. 1, State v. Stuart, 192
W.Va. 428, 452 S.E.2d 886 (1994) (holding that police officers may stop vehicle to investigate if
they have articulable reasonable suspicion that person in vehicle is committing crime). The
OAH’s findings to the contrary are clearly wrong in view of the reliable, probative, and
substantial evidence on the record. See W.Va. Code § 29A-5-4(g) (1998) (specifying grounds
for reversing decision of administrative agency, including when findings are clearly wrong); Syl.
Pt. 1, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996) (ruling that hearing examiner’s
findings of fact are not accorded deference if clearly wrong).

        If the traffic stop was lawful, as it was in this case, then there is no basis to overturn the
Commissioner’s revocation order.           The respondent admitted that he consumed beer
approximately thirty minutes earlier. The arresting officer noted that the respondent smelled of
alcohol. Moreover, the respondent failed both the preliminary and the secondary chemical
breath tests, the latter of which showed that he was driving with an alcohol concentration in his
blood that was beyond the legal limit. West Virginia Code § 17C-5A-1(a) (2008) requires the
revocation of a driver’s license when a person drives a motor vehicle while having a blood
alcohol concentration of .08 or more. Accord W.Va. Code § 17C-5A-2(e) (2010) (specifying
that “[t]he principal question at the [administrative driver’s license revocation] hearing shall be
whether the person . . . did drive a motor vehicle while having an alcohol concentration in the
person’s blood of” .08 or more).

        The purpose of an administrative driver’s license revocation is to promote public safety
and to save lives. State ex rel. Hall v. Schlaegel, 202 W.Va. 93, 97, 502 S.E.2d 190, 194 (1998).
Because that purpose was thwarted in this case, I respectfully dissent. I am authorized to state
that Justice Workman joins in this dissent.




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