                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Steven O. Dale, Acting Commissioner of the                                          FILED
West Virginia Department of Motor Vehicles,                                  November 21, 2014
Petitioner Below, Petitioner                                                   RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
vs) No. 13-1327 (Kanawha County 13-AA-79)

Teresa E. Haynes,

Respondent Below, Respondent



                               MEMORANDUM DECISION
        Petitioner Steven O. Dale, the Acting Commissioner of the West Virginia Department of
Motor Vehicles (the “Commissioner”), by counsel Elaine L. Skorich, appeals the order of the
Circuit Court of Kanawha County, entered November 18, 2013, that affirmed the Final Order of
the Office of Administrative Hearings (OAH). The OAH rescinded the Commissioner’s
revocation of Respondent Teresa E. Haynes’s driver’s license for driving under the influence of
alcohol (“DUI”) on the ground that the Commissioner failed to establish an articulable
reasonable suspicion to initiate the traffic stop of respondent’s car and, therefore, failed to show
that the investigating officer had reason to encounter and then arrest respondent for DUI.
Respondent does not make an appearance.

        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 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 July 30, 2011, Officer Hosby-Brown of the Ranson Police Department in Jefferson
County stopped respondent allegedly because she was weaving as she drove and had twice
ridden on the white line. Officer Hosby-Brown then summoned Officer Mathew Custer (“the
investigating officer”) to the scene. Once at the scene, the investigating officer conducted a series
of field sobriety tests which respondent failed and then arrested respondent for DUI.
        On August 26, 2011, the DMV revoked respondent’s driving privileges for DUI for a
period of one year.1 On August 30, 2011, respondent timely requested an administrative hearing
to challenge the results of her preliminary breath test and the constitutionality of the traffic stop.



       1
         Respondent had a previous DUI conviction on June 16, 2010. She regained her driving
privileges from that conviction before the arrest at issue in this appeal.


                                                  1

        At the January 19, 2012, administrative hearing before the OAH, the Commissioner
presented the testimony of the investigating officer who stated as follows: He was summoned to
the scene by Officer Hosby-Brown after Officer Hosby-Brown stopped respondent. He smelled
alcohol on respondent’s breath. Respondent admitted that she had four or five drinks that
evening. Her eyes were bloodshot and glassy and her speech was slurred. When the investigating
officer asked for respondent’s driver’s license, she said it was in her purse in the car’s trunk.
When respondent was ordered to retrieve her license from the trunk, she turned the car on and
fumbled with the knobs on the dashboard. She then exited the car, but was unsteady while
standing and walking to the rear of her car. She consented to, but failed, two field sobriety tests:
the horizontal gaze nystagmus test and the walk-and-turn test. She refused to perform the one-
leg-stand test. Her preliminary breath test registered .15%.

       Also at the administrative hearing, the Commissioner presented the Incident Report and
the DUI Information Sheet, both of which were completed by the investigating officer. The
incident report provided the following:

       On July 30. 2011[, respondent’s] vehicle was observed to be weaving in its lane
       and the passenger side tires struck the white fog line on two separate occasions.
       At 0123[,] a traffic stop was made on said vehicle[.] I asked driver . . . for her
       driver[’]s license[,] vehicle registration[,] and proof of insurance. . . .

As for the DUI Information Sheet, the following boxes were checked under the heading “Vehicle
In Motion[:]” “weaving” and “tires on the line marker.” Respondent objected to the documents
on the ground that neither document mentioned that respondent was stopped by Officer Hosby-
Brown and, therefore, both documents wrongfully gave the impression that the investigating
officer stopped respondent’s car. Despite the objection, the hearing officer admitted both
documents into evidence.

       Officer Hosby-Brown did not attend the administrative hearing and, therefore, offered no
testimony regarding the reason for the stop. Respondent also did not testify at the administrative
hearing.

        By Final Order entered May 28, 2013, the OAH rescinded the Commissioner’s
revocation of respondent driver’s license. The OAH concluded that the investigating officer’s
testimony at the administrative hearing was directly contradicted by the information contained
within the DUI Information Sheet and the Incident Report. Specifically, the OAH found that

       [n]either of the afore-mentioned (sic) documents . . . indicates that the traffic stop
       was effectuated by another law enforcement officer. Rather, the [i]nvestigating
       [o]fficer implied, by his omission of this pertinent fact, and [by] affixing his
       signature to both documents, that the traffic stop was initiated by the
       [i]nvestigating [o]fficer.




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The OAH then concluded that the Commissioner had failed to present evidence sufficient to
allow it to make the findings required by West Virginia Code § 17C-5A-2(f).2 That section
provides 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 . . . 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 . . . ; (2) whether the person was lawfully placed
       under arrest for an offense involving driving under the influence of alcohol . . . :
       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 . . . ; and (4) whether the tests, if any, were
       administered in accordance with the provisions of this article and article five of
       this chapter.

       On June 27, 2013, the Commissioner filed a petition for judicial review with the circuit
court wherein the Commissioner argued that (1) the OAH was clearly wrong in concluding that
the Commissioner had presented insufficient evidence to determine whether respondent was
operating a motor vehicle in this state while under the influence of alcohol; and (2) the OAH
erred in applying the criminal exclusionary rule to this administrative license revocation
proceeding.3

       By order entered November 18, 2013, the circuit court found that the OAH did not err in
rescinding the Commissioner’s revocation order. The circuit court noted that, pursuant to West
Virginia Code § 17C-5A-2(f) (2012), it was required to determine whether the person was
lawfully placed under arrest for DUI.4 The circuit court acknowledged that the Incident Report

       2
         In his brief, the Commissioner cites to West Virginia Code § 17C-5A-2(f) (2010) which
was the statute in effect at the time of the stop. However, in the order on appeal, the circuit court
cites to West Virginia Code § 17C-5A-2(f) (2012). However, it is a distinction without a
difference in that subsection (f) is identical in both the 2010 and 2012 versions.
       3
          See Syl. Pt. 3, Miller v. Toler, 229 W.Va. 302, 729 S.E.2d 137 (2012); Syl. Pt. 7, Miller
v. Smith, 229 W.Va. 478, 729 S.E.2d 800 (2012).
       4
         The 2004 version of West Virginia Code § 17C-5A-2(f) required a specific finding as to
whether the driver was lawfully placed under arrest for DUI. See W.Va. Code § 17C-5A-2(f)
(2004). However, a 2008 amendment removed that requirement. See W.Va. Code § 17C-5A-2(f)
(2008). In 2010, the Legislature amended the statute and, once again, required a finding as to
whether the driver was lawfully placed under arrest for DUI. See W.Va. Code § 17C-5A-2(f)
(2010). The statute was amended most recently in 2012. That amendment added two new
sections (§ 17C-5C-4a and -4b) which are not at issue here. See W.Va. Code § 17C-5A-2(f)
(2012). Therefore, like the 2004 version, the 2010 and 2012 versions of West Virginia Code §
17C-5A-2(f) require the OAH to make a finding regarding “whether the person was lawfully
placed under arrest for an offense involving driving under the influence of alcohol, controlled
                                                 3

and the DUI Information Sheet were “properly admitted into evidence at the administrative
hearing and [were] admissible under [West Virginia Code §] 29A-5-2(b).” The circuit court also
noted that, pursuant to Crouch v. West Virginia Division of Motor Vehicles, 219 W.Va. 70, 631
S.E.2d 628 (2006), the admission of those documents created a rebuttable presumption as to their
accuracy. Id. at 76 n.12, 631 S.E.2d at 634 n.12. However, the circuit court found that
respondent’s counsel “rebutted the accuracy of [the Commissioner’s] evidence by illustrating
[the investigating officer’s] inconsistent statements regarding what he observed and his role in
the arrest.” Therefore, the circuit court found that it could not determine whether respondent was
lawfully placed under arrest for DUI. With regard to the Commissioner’s claim that the OAH
applied the exclusionary rule, the circuit court found that the OAH did not apply the exclusionary
rule, but— instead—simply found that the Commissioner failed to produce the evidence required
by West Virginia Code § 17C-5A-2(f).

      The Commissioner now appeals the circuit court’s order. This Court explained the
standard of review in such appeals in Syllabus Point 1 of Muscatell v. Cline, 196 W.Va. 588, 474
S.E.2d 518 (1996), in which we said that

               [o]n appeal of an administrative order from a circuit court, this Court is
       bound by the statutory standards contained in [West Virginia] 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.

This Court has also held that

               [u]pon 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 Dep’t v. State ex rel. State of W.Va. Human Rights
Comm’n, 172 W.Va. 627, 309 S.E.2d 342 (1983). Thus, although deference is given to the
administrative agency’s factual findings, this Court applies a de novo standard of review to the
agency’s conclusions of law.


substances or drugs, or was lawfully taken into custody for the purpose of administering a
secondary test.”


                                                 4
        On appeal, the Commissioner first argues that the circuit court was clearly wrong in
finding that the Incident Report and the DUI Information Sheet contradicted the investigating
officer’s testimony and indicated that he saw respondent driving her car. The Commissioner
claims that nowhere in the Incident Report or the DUI Information Sheet does the investigating
officer say he saw respondent driving her car.

         The Commissioner is correct when he says that “nowhere in the DUI Information Sheet
or the Incident Report does the investigating officer say he saw respondent driving her car.”
However, it is just as true that nowhere in the Incident Report or the DUI Information Sheet does
the investigating officer admit that Officer Hosby-Brown conducted the stop of respondent’s car.
In fact, the information in the Incident Report and the DUI Information Sheet was so oblique that
the assistant attorney general assigned to the case did not learn that the investigating officer did
not conduct the stop until the attorney was examining the investigating officer at respondent’s
administrative hearing. As such, we find that the circuit court did not err in determining that the
DUI Information Sheet and the Incident Report were contradictory to the investigating officer’s
testimony at the administrative hearing.

         The Commissioner’s second assignment of error is that the circuit court erred in finding
that an arrest cannot be lawful absent a valid traffic stop. This Court has said that an arrest
following a traffic stop can only be “lawful” if an officer has an “articulable reasonable suspicion
to initiate a traffic stop” of the person’s vehicle.5 See Syl. Pt. 4, Clower v. W.Va. Div. of Motor
Vehicles, 223 W.Va. 535, 544, 678 S.E.2d 41, 50 (2009) (“‘Police officers may stop a vehicle to
investigate if they have an articulable reasonable suspicion that the vehicle is subject to seizure
or a person in the vehicle has committed, is committing, or is about to commit a crime[.]’
Syllabus Point 1, in part, State v. Stuart, 192 W.Va. 428, 452 S.E.2d 886 (1994).”) In Clower,
this Court applied West Virginia Code § 17C-5A-2(f) (2004) which includes the same
requirements as § 17C-5A-2(f) (2012), which the circuit court applied in this case.

     Further, West Virginia Code § 17C-5A-2(f)(1) (2010), the statute in effect at the time of the
stop of respondent’s car, requires a finding as to “[w]hether the investigating law-enforcement
officer had reasonable grounds to believe the person to have been driving while under the
influence of alcohol. . . .” In the instant case, given that the investigating officer did not see
respondent driving her car, and given that the Commissioner did not call Officer Hosby-Brown
as a witness at the administrative hearing in this matter, the finding required by West Virginia
Code § 17C-5A-2(f)(1) (2010) could not be made. Further, the finding required by West Virginia
Code § 17C-5A-2(f)(2) (2010), “whether the person was lawfully placed under arrest for an
offense involving driving under the influence of alcohol,” could also not be made. Therefore, on
the record before the OAH, we cannot say that the circuit court erred in finding that the




       5
         The relevant part of the 2012 statute tracks the language of the 2004 statute: “[W]hether
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.” W.Va. Code § 17C-5A-2(e) (2004); W.Va. Code § 17C-5A-2(f)
(2012).
                                                 5

Commissioner failed to present sufficient evidence to evince a valid and lawful traffic stop or
arrest.6

       The Commissioner next argues that, pursuant to Lowe v. Cicchirillo, 223 W.Va. 175, 672
S.E.2d 311 (2008), it was not necessary for the investigating officer to see respondent driving her
vehicle for her arrest to be lawful. Syllabus Point 5 of Lowe provides that,

        “[West Virginia] 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).

223 W.Va. at 177, 672 S.E.2d at 313. We disagree with the Commissioner’s claim that Lowe and
Carte are applicable to the instant case because there was no traffic stop at issue in either case. In
Carte, law enforcement officers first saw the driver suspected of DUI parked at a stop light. 200
W.Va. at 163-64, 488 S.E.2d 438-39. In Lowe, law enforcement officers first saw the driver
suspected of DUI in an ambulance following a vehicular accident in which the driver was
involved. 223 W.Va. at 178, 672 S.E.2d 314. However, in the instant case, the key issue is the
sufficiency of the evidence regarding respondent’s traffic stop. Hence, Lowe and Carte are
clearly distinguishable.

     The Commissioner next claims that, where the answer to the question posed by West
Virginia Code § 17C-5A-2(f)(2) (“whether the person was lawfully placed under arrest for an
offense involving driving under the influence of alcohol”) is “No,” the only impact is that the
OAH cannot consider the results of a secondary breath test conducted pursuant to West Virginia
Code § 17C-5-4(b) (2010). Therefore, the Commissioner asserts that the circuit court erred in
reversing his revocation of respondent’s driver’s license.

     Subsequent to the Commissioner’s filing of his appellate brief in this case, we addressed and
rejected this assignment of error in Dale v. Ciccone, 233 W.Va. 652, 760 S.E.2d 466 (2014), as
follows:

        The DMV also contends that the “lawful arrest” language is only intended to
        address matters involving a secondary chemical test. As the circuit court correctly
        found, there is no merit to this argument, and it is contrary to the clear language of
        [West Virginia Code § 17C-5A-2. That] statute sets forth findings which must be
        made with regard to the lawful arrest of the individual for driving under the
        influence, distinct from any secondary chemical test issue.

    6
      But see Dale v. Odum, 233 W.Va. 601, 760 S.E.2d 415 (2014) (per curiam) (reinstating the
Commissioner’s revocation order in similar circumstances on the ground that the documentary
evidence in the case included the information that the traffic stop was made by a different officer
than the one who arrested the driver.)
                                                  6

233 W.Va. at __ n.8, 760 S.E.2d at 473 n.8.

       The Commissioner’s final assignment of error is that the circuit court erred in applying the
exclusionary rule to the evidence showing that respondent was DUI on the night of her arrest.
Our review of the record on appeal shows that the circuit court did not apply the exclusionary
rule to that evidence. Instead, the circuit court found that the Commissioner’s failure to present
sufficient evidence precluded it from making the findings required by West Virginia Code §
17C-5A-2(f), which—in turn—precluded the admission of evidence showing that respondent
was DUI. As such, we find no error.

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.

ISSUED: November 21, 2014

CONCURRED IN BY:

Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman

DISSENTING:

Justice Menis E. Ketchum

DISSENTING AND WRITING SEPARATELY:

Justice Allen H. Loughry II


LOUGHRY, Justice:

      In this memorandum decision, the majority of the Court rubberstamps a decision of the
OAH that is both contrary to the evidence of record and contradicted by our existing case law.

        There is undisputed evidence in the administrative record to support a finding that the
stop of the respondent’s vehicle was lawful. The DUI Information Sheet, which was properly
admitted into evidence at the OAH hearing, indicates that the respondent’s vehicle was
“weaving” and the “tires [were] on the line marker.” See Syl. Pt. 3, Crouch v. W. Va. Div. of
Motor Vehicles, 219 W.Va. 70, 631 S.E.2d 628 (2006) (holding that statement of arresting
officer is admissible in administrative driver’s license revocation hearing). This evidence is also
reflected in a typed statement prepared by the arresting officer: “[t]he vehicle was observed to be
weaving in its lane and the passenger side tires struck the white fog line on two separate
occasions.” Unquestionably, swerving and driving on the fog line provide a police officer with
an articulable reasonable suspicion to make a lawful traffic stop. See Syl. Pt. 1, State v. Stuart,

                                                7

192 W.Va. 428, 452 S.E.2d 886 (1994) (holding that officers may stop vehicle to investigate if
they have articulable reasonable suspicion that person in vehicle is committing crime).

        Furthermore, there is a rebuttable presumption as to the accuracy of the information in
the DUI Information Sheet. Crouch, 219 W.Va. at 76 n.12, 631 S.E.2d at 634 n.12; Dale v.
Odum, 233 W.Va. 601, __, 760 S.E.2d 415, 423 (2014). In this case, the respondent utterly failed
to rebut that presumption. Indeed, the respondent, who did not testify at the OAH hearing, did
not present any evidence whatsoever regarding the manner in which she was driving prior to her
traffic stop. In Odum, a case with nearly identical facts, we upheld a license revocation based
upon the unrebutted evidence of a lawful stop set forth in a DUI Information Sheet, even though
the police officer who personally observed the erratic driving did not testify at the administrative
hearing. Id., 233 W.Va. at __, 760 S.E.2d at 422-23.

       When rejecting this admissible documentary evidence, the OAH found that it was
contradicted by the arresting officer’s testimony. This finding was clearly wrong. In fact,
nowhere in the DUI Information Sheet or in the officer’s typed report did the arresting officer
ever indicate that he personally observed the respondent’s erratic driving. Simply put, there was
no contradiction. When a hearing examiner’s finding of fact is clearly wrong, it is not to be
accorded deference on appeal. Syl. Pt. 1, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518
(1996); accord W.Va. Code § 29A-5-4(g) (1998) (specifying grounds for reversing decision of
administrative agency, including when findings are clearly wrong).

        There is overwhelming evidence that the respondent was driving while under the
influence of alcohol. In addition to her erratic driving, she admitted consuming four or five
drinks; she smelled of alcohol; her eyes were bloodshot and glassy; her speech was slurred; she
was unsteady upon exiting her vehicle; she had difficulty opening the trunk of her own car; she
failed two field sobriety tests and refused a third; and she failed the preliminary breath test. The
Commissioner’s revocation order should have been affirmed.

        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);
accord West Virginia Code § 17C-5A-2(e) (2010) (“The principal question at the [administrative
driver’s license revocation] hearing shall be whether the person did drive a motor vehicle while
under the influence of alcohol[.]”). Because that purpose was thwarted in this case, I respectfully
dissent.




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