                            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. 14-0216 (Kanawha County 13-AA-81)

Jared A. Judy,

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 January 24, 2014, order of the
Circuit Court of Kanawha County that affirmed an order of the Office of Administrative
Hearings (“OAH”). The OAH order, entered May 29, 2013, reversed the DMV Commissioner’s
Order of Revocation of Respondent Jared A. Judy’s operator’s license for the offense of driving
under the influence of alcohol (“DUI”). Respondent did not file a response.

        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 November 28, 2010, at approximately 1:25 a.m., Patrolman C.M. Gomez (“Officer
Gomez” or “investigating officer”) of the Moorefield Police Department initiated a traffic stop of
a black 2011 GMC Yukon with Ohio plates.1 The vehicle was traveling on Route 55 in Hardy
County and was being driven by respondent.

         The DUI Information Sheet completed by Officer Gomez noted “speed” under the
“Vehicle in Motion” section. It further noted that respondent exhibited an odor of alcohol;
slurred speech; bloodshot and watery eyes; and unsteadiness while exiting the vehicle, walking
to the roadside, and standing. Also noted on the DUI Information Sheet was respondent’s
admission that he had consumed four beers at a bar. At the administrative hearing, respondent
testified that he last consumed alcohol earlier in the evening, between 7:00 p.m. and 7:30 p.m.
Respondent failed all three of the field sobriety tests given. He was subsequently arrested for
DUI and transported to the Hardy County Sheriff’s Department where he was administered a

       1
        At the administrative hearing, respondent explained that he had rented the vehicle that
day while his own vehicle was being repaired.
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secondary chemical test of the breath. Respondent failed the test with a result of .154%.

        In an official notice dated January 4, 2011, the DMV issued an Order of Revocation of
respondent’s driving privileges for forty-five days, with an effective date of February 8, 2011.
Respondent filed a written objection and specifically requested the appearance of the
investigating officer at the administrative hearing. A hearing was scheduled for March 25, 2011.
Although a subpoena was issued to Officer Gomez to appear at the hearing, he failed to appear.
The hearing examiner rescheduled the hearing to October 18, 2011, for which another subpoena
was issued to compel Officer Gomez’s appearance. Officer Gomez again failed to appear. The
hearing examiner was advised that Officer Gomez was no longer employed by the Moorefield
Police Department and that it was extremely unlikely that the DMV would be able to secure his
attendance at any future administrative hearings. The administrative hearing was conducted on
October 18, 2011, in Officer Gomez’s absence.

       At the hearing, the DMV offered into evidence the DUI Information Sheet. The Chief of
the Moorefield Police Department and Officer Gomez’s supervisor, S.D. Reckart, testified that
the DUI Information Sheet is a business record kept in the department’s ordinary course of
business and in accordance with the duty and professional responsibilities of its employee,
Officer Gomez. See W.Va.R.Evid. 803(6). The DUI Information Sheet was admitted into
evidence over respondent’s objection. Other than the DUI Information Sheet and Chief Reckart’s
testimony establishing the foundational requirements for its admission, the DMV presented no
additional evidence. Respondent testified and was cross-examined by counsel for DMV.

         On May 29, 2013, the OAH entered the Final Order of Chief Hearing Examiner in which
it adopted the Decision of the Hearing Examiner that reversed the DMV’s order of revocation. In
support of its order, the OAH noted that Officer Gomez failed to “specify the speed infraction
upon which he based his reasonable suspicion to initiate the traffic stop” in this case. “Rather, the
Investigating Officer merely indicated ‘speed’ in the ‘Vehicle in Motion’ section of the DUI
Information Sheet.” (Emphasis in original). The OAH further noted that respondent testified that
although the investigating officer informed him that he was stopped for speeding, Officer Gomez
did not advise respondent at what speed he was allegedly traveling. Respondent testified that he
did not believe that he was speeding at the time he was stopped. Rather, he contended that he
believed he was targeted because he was driving a black sport utility vehicle with Ohio plates
late at night.

        The OAH found that respondent’s testimony directly conflicted with the information in
the DUI Information Sheet, upon which the DMV exclusively relied. The OAH further found
that, because Officer Gomez did not appear at the administrative hearing to testify about his
observations as recorded in the DUI Information Sheet, the DMV was unable to rebut
respondent’s testimony that he was traveling within the posted speed limit. The OAH also
observed that, given Officer Gomez’s absence, it was unable to judge the veracity of the
information proffered by him in the DUI Information Sheet and that, similarly, respondent was
not able to cross-examine him about either his purported observations or the events that allegedly
occurred, “which were the sole bas[e]s for the revocation of [respondent’s] driving privileges.”

       The OAH concluded that, “[a]s a result of the conflicting evidence regarding the

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reasonable suspicion to effectuate the traffic stop offered by [respondent], and [the DMV’s]
failure to present credible, live testimony to rebut [respondent’s] claims, the Hearing Examiner
finds that [the DMV] failed to establish whether the Investigating Officer had an articulable,
reasonable suspicion to initiate the traffic stop of [respondent’s] vehicle on the date of the stated
offense.” The OAH further concluded that, under West Virginia Code 17C-5A-2(f) (2010),
“evidence that the Investigative Officer had a reasonable articulable suspicion to initiate a traffic
stop of the motor vehicle driven by [respondent] is crucial to support a determination that
reasonable grounds existed to believe that [respondent] had been driving a motor vehicle in this
State while under the influence of alcohol, and that he was lawfully arrested for the offense.”
Finally, relying on State v. Stuart, 192 W.Va. 428, 452 S.E.2d 886 (1994), the OAH examined
the totality of the circumstances in its determination of whether reasonable suspicion was
established and concluded that the evidence failed to demonstrate that there was a reasonable
articulable suspicion to initiate the traffic stop of respondent’s vehicle. As a result, the hearing
examiner found that respondent was not lawfully placed under arrest for DUI and that the DMV
failed to “meet its burden of proof by a preponderance of the evidence standard that [respondent]
committed a violation of W.Va. Code § 17C-5-2.” The order of revocation was reversed by order
entered May 29, 2013.

       The DMV appealed the OAH’s order to the Circuit Court of Kanawha County. In an
order entered January 24, 2014, the circuit court affirmed. 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). This deference extends to
evidentiary findings made by the OAH. 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.

        In its first assignment of error, the DMV argues that the circuit court erred in showing a
preference for testimonial evidence over documentary evidence. The DMV contends that both
the OAH and the circuit court failed to give proper weight to the DUI Information Sheet, which
indicated that respondent’s vehicle was stopped for “speed.” The DMV further contends that
respondent’s equivocal testimony that he did not believe he was speeding and that “I wasn’t
going fast . . . . It was 35 where he stopped me. I was coming out of a 25[,]” was not sufficient to
rebut the evidence in the DUI Information Sheet.

       In Groves v. Cicchirillo, this Court noted “‘that the fact that a document is deemed
admissible under [West Virginia Code § 29A-5-2(b)] does not preclude the contents of the

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document from being challenged during the hearing. Rather, the admission of such a document
into evidence merely creates a rebuttable presumption as to its accuracy.’” 225 W.Va. 474, 479,
694 S.E.2d 639, 644 (2010) (quoting Crouch v. W. Va. Div. of Motor Vehicles, 219 W.Va. 70, 76
n.12, 631 S.E.2d 628, 634 n.12 (2006).). Furthermore, this Court has repeatedly stated that
“‘[c]redibility determinations made by an administrative law judge are . . . entitled to deference.’
Syl. Pt. 1, in part, Cahill v. Mercer Cnty. Bd. of Educ., 208 W.Va. 177, 539 S.E.2d 437 (2000).”
Syl. Pt. 6, Dale v. Veltri, 230 W.Va. 598, 741 S.E.2d 823 (2013). In this case, speed was the sole
reason noted on the DUI Information Sheet for the stop of respondent’s vehicle; however, the
DUI Information Sheet failed to include any attendant notation as to the approximate speed at
which respondent was allegedly traveling. Despite being twice subpoenaed to testify, Officer
Gomez failed to appear and, thus, the DMV was unable to demonstrate how fast respondent was
allegedly driving. Likewise, respondent was not afforded the opportunity to cross-examine
Officer Gomez on the crucial issue of why he initiated the stop. Respondent testified that did not
believe he was speeding and that he “wasn’t going fast.”

         Thus, the OAH was confronted with conflicting evidence between the DUI Information
Sheet prepared by Officer Gomez and respondent’s testimony at the hearing. “‘[T]he discrepancy
. . . simply boil[ed] down to a credibility issue.’” Id. at 603, 741 S.E.2d at 828 (quoting Sims v.
Miller, 227 W.Va. 395, 402, 709 S.E.2d 750, 757 (2011)). Therefore, “deference is required
‘because the hearing examiner who observed the witness testimony is in the best position to
make credibility judgments.’” Id. Cf. Michael D.C. v. Wanda L.C., 201 W.Va. 381, 388, 497
S.E.2d 531, 538 (1997) (stating that “[a] reviewing court cannot assess witness credibility
through a record.”); Gum v. Dudley, 202 W.Va. 477, 484, 505 S.E.2d 391, 398 (1997) (stating
that “[t]he trial court . . . observed the demeanor of the witnesses and other nuances of a trial that
a record simply cannot convey.”). Finally, we have often stated that “‘“a reviewing court may
not overturn a finding simply because it would have decided the case differently, and it must
affirm a finding if the circuit court’s account of the evidence is plausible in light of the record
viewed in its entirety.” Syl. Pt. 1, [in part,] In re Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d
177 (1996)’ Syllabus Point 1, [in part,] In re George Glen B., 205 W.Va. 435, 518 S.E.2d 863
(1999).” Syl. pt. 1, in part, In re Travis W., 206 W.Va. 478, 525 S.E.2d 669 (1999). Thus, it was
within the OAH’s sound discretion to determine that respondent had successfully rebutted the
presumption of the accuracy of the DUI Information Sheet. See Groves, 225 W.Va. at 479, 694
S.E.2d at 644.

       In related assignments of error, the DMV argues that the circuit court erred in affirming
the OAH’s finding that Officer Gomez lacked reasonable suspicion to stop respondent’s vehicle.
The DMV further argues that the OAH and circuit court erred in ignoring the evidence of DUI
that was obtained after the stop.

        Under West Virginia Code § 17C-5A-2(f)(1) and (2) (2010), the applicable statute in
effect at the time of respondent’s arrest, the OAH is required to make the specific findings of,
inter alia, “[w]hether the investigating law-enforcement officer had reasonable grounds to
believe the person to have been driving while under the influence of alcohol . . . .” and
“[w]hether the person was lawfully placed under arrest for an offense involving driving under the




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influence of alcohol, . . . or was lawfully taken into custody for the purpose of administering a
secondary test[.]” Id., in relevant part.2

        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).

       Furthermore, in Ciccone, we clarified that, under the applicable version of West Virginia
Code § 17C-5A-2(f), “‘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.



       2
           West Virginia Code § 17C-5A-2(f) (2010) more fully 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
       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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         As this Court has already determined, the OAH did not err in finding that respondent
successfully rebutted the presumption that the DUI Information Sheet was accurate to the extent
that it indicated that respondent was exceeding the speed limit when he was stopped. Thus, 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. Therefore,
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. Sup. Ct.,
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.)3

       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
Justice Menis E. Ketchum

DISSENTING AND WRITING SEPARATELY:

Justice Allen H. Loughry II


LOUGHRY, Justice, dissenting:

       Unquestionably, the respondent was drunk while driving in Hardy County on November
28, 2010. According to the evidence in the DUI Information Sheet, the respondent was
speeding; admitted to having consumed four beers; smelled of alcohol; had slurred speech and
bloodshot, watery eyes; was unsteady when standing and walking; and failed three field sobriety

3
  The DMV argues that the circuit court erred in referring to 91 C.S.R. § 1-3.7.2 because this rule
was not in effect at the time the events herein transpired. The rule states, inter alia, “[t]hat where
the arresting officer fails to appear at the hearing, but the licensee appears, the revocation . . .
may not be based solely on the arresting officer’s affidavit or other documentary evidence.” We
note that the OAH, the fact finder in this case, did not cite to or otherwise rely on this rule in its
order reversing the revocation of respondent’s driving privileges.
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tests. The respondent’s insobriety was confirmed when he registered a blood alcohol content of
.154 on the secondary chemical breath test—far above the legal limit.

        Although the arresting officer was unavailable to appear and testify in the driver’s license
revocation hearing, the officer’s written DUI Information Sheet was admissible evidence. See
Syl. Pt. 3, Crouch v. W.Va. Div. of Motor Vehicles, 219 W.Va. 70, 631 S.E.2d 628 (2006).
Indeed, there is a rebuttable presumption as to the accuracy of the information in the DUI
Information Sheet. Id., 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 a weak attempt to rebut the evidence in the DUI Information Sheet, the respondent
offered only his self-serving testimony that he did not believe that he was speeding at the time he
was stopped. However, when considering the respondent’s high level of inebriation at the time
of the traffic stop, it was clearly wrong for the OAH to have given the respondent’s unsupported
“belief” more weight than the officer’s report. 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).

       The Legislature has declared that “[t]he 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) (2010). The evidence in this case undisputably demonstrates that the answer to this
question is in the affirmative. The DMV Commissioner’s revocation order should have been
upheld. For these reasons, I respectfully dissent.




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