          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                  January 2013 Term               FILED
                                                               April 1, 2013
                                                               released at 3:00 p.m.
                                                               RORY L. PERRY II, CLERK
                                     No. 11-1292             SUPREME COURT OF APPEALS
                                                                 OF WEST VIRGINIA



         STEVEN O. DALE, ACTING COMMISSIONER, WEST VIRGINIA

                     DIVISION OF MOTOR VEHICLES,

                               Petitioner


                                          v.

                                ALBERTO VELTRI,
                                   Respondent


                   Appeal from the Circuit Court of Hancock County

                       The Honorable Ronald E. Wilson, Judge

                              Civil Action No. 10-AA-1


                REVERSED AND REMANDED WITH DIRECTIONS



                             Submitted: February 20, 2013

                                 Filed: April 1, 2013


Patrick Morrisey, Esq.                         Robert G. McCoid, Esq.
Attorney General                               McCamic, Sacco, & McCoid, P.L.L.C.
Elaine L. Skorich, Esq.                        Wheeling, West Virginia
Assistant Attorney General                     Attorney for Respondent
Charleston, West Virginia
Attorneys for 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.” Syl. Pt. 1, Muscatell

v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996).



       2. “In cases where the circuit court has [reversed] 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 v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996).



       3. “Interpreting a statute or an administrative rule or regulation presents a purely legal

question subject to de novo review.” Syl. Pt. 1, Appalachian Power Co. v. State Tax Dep’t,

195 W.Va. 573, 466 S.E.2d 424 (1995).



       4. “W. Va. Code § 17C-5-8(a) (2004) (Repl. Vol. 2009) allows the admission of

evidence of a chemical analysis performed on a specimen that was collected within two hours



                                               i
of either the acts alleged or the time of the arrest.” Syl. Pt. 5, Sims v. Miller, 227 W.Va. 395,

709 S.E.2d 750 (2011).



       5. “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.” Syl. Pt. 6, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996).



       6. “Credibility 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).




                                               ii
Per Curiam:



               This is an appeal by Steven O. Dale, Acting Commissioner of the West

Virginia Division of Motor Vehicles (hereinafter “DMV”)1, from an order of the Circuit

Court of Hancock County reversing a DMV order revoking Mr. Alberto Veltri’s driver’s

license for the offense of driving under the influence of alcohol (hereinafter “DUI”). On

appeal, the DMV contends that the lower court erred by (1) finding insufficient evidence to

warrant the license revocation and essentially imposing upon the DMV an obligation to

provide evidence of Mr. Veltri’s blood alcohol level at the precise time he was operating the

motor vehicle; (2) finding Mr. Veltri’s testimony more credible than the DUI Information

Sheet; and (3) applying an administrative rule that is no longer applicable regarding the

arresting officer’s attendance at the license revocation hearing. Having thoroughly reviewed

the briefs, arguments of counsel, appendix record, and applicable precedent, this Court

concludes that the circuit court erred by reversing the license revocation. Therefore, the

order of the circuit court is reversed, and this case is remanded to the circuit court to reinstate

the DMV order revoking Mr. Veltri’s license to operate a motor vehicle.




       1
       Pursuant to Rule 41(c) of the West Virginia Rules of Appellate Procedure, this Court
has substituted the Petitioner’s name with Steven O. Dale, Acting Commissioner of the West
Virginia Division of Motor Vehicles.

                                                1

                              I. Factual and Procedural History

              Weirton Police Officer S.M. Falbo stopped Mr. Veltri’s motor vehicle based

upon a suspicion of DUI at 1:43 a.m. on July 22, 2009. According to the DUI Information

Sheet, Officer Falbo observed Mr. Veltri’s vehicle weaving, almost striking another vehicle,

turning with a wide radius, and responding slowly to traffic signals. The DUI Information

Sheet further indicated that Mr. Veltri had the odor of alcohol on his breath, slurred speech,

bloodshot eyes, difficulty in responding to directions, and unsteadiness when exiting the

vehicle, standing, and walking. Additionally, Mr. Veltri failed the “one-leg stand” and the

“walk and turn” tests.



              Officer Falbo arrested Mr. Veltri at 1:57 a.m. A breath test2 conducted at 2:31

a.m., forty-eight minutes after the initial stop and thirty-four minutes after the arrest,

indicated a blood alcohol level (hereinafter “BAC”) of .095%.3 When asked whether he was

under the influence of alcohol or drugs, Mr. Veltri admitted to drinking a small glass of wine

and being “a little bit” under the influence.




       2
        An initial breath test, conducted prior to the 2:31 a.m. test, was not utilized because
the police officer had not observed the driver for fifteen minutes prior to the test. That first
breath test is not an issue in this case.
       3
        Operating a motor vehicle with a concentration of eight hundredths of one percent
(.08%) or more of alcohol in the blood constitutes DUI. See W. Va. Code § 17C-5-2(d)
(2009).

                                                2

              Subsequent to a March 4, 2010, DMV hearing, Mr. Veltri’s license was

revoked. Mr. Veltri did not request the presence of the arresting officer at the license

revocation hearing; thus, the hearing examiner relied upon the information contained in the

DUI Information Sheet. The hearing examiner referenced the conflict between the DUI

Information Sheet and the testimony of Mr. Veltri, reasoning that while Mr. Veltri “refuted

the Investigating Officer’s allegation made in reference to his manner of driving and his level

of intoxication,” Mr. Veltri “only stated that he did not do what the Investigating Officer

stated, offering no other explanation of his manner of driving or why he was not intoxicated

even though his blood alcohol concentration was ninety-five thousandths of one percent.”



              By order entered September 1, 2011, the circuit court reversed the license

revocation, reasoning that (1) the DMV failed to prove Mr. Veltri’s alcohol content at the

actual time of driving the vehicle; (2) the DMV did not comply with Muscatell v. Cline, 196

W.Va. 588, 474 S.E.2d 518 (1996), which requires a hearing officer to address credibility

issues in a reasoned manner; and (3) the failure of the investigating officer to appear at the

license revocation hearing required the dismissal of the case against Mr. Veltri. The DMV

has appealed that decision to this Court.




                                              3

                                   II. Standard of Review

              This Court has consistently observed the applicable standards for review of a

circuit court’s order deciding an administrative appeal. In syllabus point one of Muscatell,

this Court stated 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.

In syllabus point two of Muscatell, this Court addressed the situation, as in the present case,

where a circuit court has reversed the result obtained in the administrative agency. This

Court held as follows:

                     In cases where the circuit court has [reversed] 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.

Further, where a matter of statutory interpretation is presented, this Court has stated that

“[i]nterpreting a statute or an administrative rule or regulation presents a purely legal

question subject to de novo review.” Syl. Pt. 1, Appalachian Power Co. v. State Tax Dep’t,

195 W.Va. 573, 466 S.E.2d 424 (1995). Observing these standards of review, this Court

addresses the issues raised in this matter.




                                              4

                                       III. Discussion

                       A. The Concept of Retrograde Extrapolation

              The DMV contends that the lower court erred by ruling that it was required to

provide evidence of Mr. Veltri’s BAC at the precise time of driving. The process through

which such an evaluation could potentially be accomplished is termed “retrograde

extrapolation.”4 Mr. Veltri raised this issue during the DMV hearing, albeit somewhat

tangentially and without reference to any potential manner of assessment, through the

introduction of portions of a 1998 driver’s handbook published by the DMV demonstrating

the validity of the concept of gradual absorption of alcohol and its effect upon BAC levels.5



              The DMV argues that the circuit court, by crediting Mr. Veltri’s assertion that

it is possible for BAC to vary over a period of time subsequent to an individual’s last drink


       4
        “Retrograde extrapolation represents the technique through which experts estimate
alcohol concentration at some earlier time based on the test results at some later time.” State
v. McGowan, 139 P.3d 841, 845 (Mont. 2006); see also State v. Larson, 429 N.W.2d 674
(Minn. Ct. App. 1988); State v. Tischio, 527 A.2d 388 (N.J. 1987) (holding that retrograde
extrapolation not required in proof of DUI). The retrograde extrapolation evaluation would
require a complex scientific investigation of several factors unique to each individual. As
observed by the Montana Supreme Court in McGowan, the required utilization of retrograde
extrapolation evidence would place an “impossible burden” upon the DMV. 139 P.2d at
845-46. The evaluation would require information “such as when, and in what amounts, the
defendant consumed alcohol before driving. Further, the rate of absorption of alcohol varies
greatly among individuals . . . .” Id.
       5
       In its brief, the DMV correctly emphasizes that the chart included in the 1998 DMV
handbook did not “take into account the personal characteristics of the driver such as gender,
age, medical condition, time of last meal, or contents of last meal, and the kind of alcohol
consumed.”

                                              5

of alcohol, improperly imposed upon the DMV a duty to present retrograde extrapolation

evidence where no such requirement exists in West Virginia. The guiding statutory

framework on this issue is contained in West Virginia Code § 17C-5-8(a) (2009), providing,

in pertinent part, as follows:



                     Upon trial for the offense of driving a motor vehicle in
              this state while under the influence of alcohol, controlled
              substances or drugs, or upon the trial of any civil or criminal
              action arising out of acts alleged to have been committed by any
              person driving a motor vehicle while under the influence of
              alcohol, controlled substances or drugs, evidence of the amount
              of alcohol in the person's blood at the time of the arrest or of the
              acts alleged, as shown by a chemical analysis of his or her
              blood, breath or urine, is admissible, if the sample or specimen
              was taken within two hours from and after the time of arrest or
              of the acts alleged. The evidence gives rise to the following
              presumptions or has the following effect:

                      ....

                     (3) Evidence that there was, at that time, eight hundredths
              of one percent or more, by weight, of alcohol in his or her blood,
              shall be admitted as prima facie evidence that the person was
              under the influence of alcohol.


              The DMV contends that West Virginia Code § 17C-5-8 unambiguously creates

the presumption that a BAC of .08% or more up to two hours after an arrest or the acts

alleged is prima facie evidence of such BAC at the time of driving. The opinions of this

Court support this assertion. In State v. Dyer, 177 W.Va. 567, 355 S.E.2d 356 (1987), for

instance, this Court applied that statutory presumption and held that evidence of BAC was

                                               6

not admissible if taken outside the statutory two-hour time limit.6 Syllabus point five of Sims

v. Miller, 227 W.Va. 395, 709 S.E.2d 750 (2011), concisely addressed this issue, stating as

follows: “W. Va. Code § 17C–5–8(a) (2004) (Repl. Vol. 2009) allows the admission of

evidence of a chemical analysis performed on a specimen that was collected within two hours

of either the acts alleged or the time of the arrest.” The Sims Court evaluated the statute and

reasoned as follows:

              We find this language to be clear, and therefore not subject to
              our interpretation. “‘Where the language of a statute is clear and
              without ambiguity the plain meaning is to be accepted without
              resorting to the rules of interpretation.’” Huffman v. Goals Coal
              Co., 223 W.Va. 724, 729, 679 S.E.2d 323, 328 (2009) (quoting
              Syl. pt. 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108
              (1968)). The above-quoted language plainly allows the
              admission of evidence resulting from a chemical analysis of
              blood, breath, or urine, so long as the sample or specimen tested
              was taken within two hours of the time of arrest or of the acts
              alleged.

227 W.Va. at 400, 709 S.E.2d at 755.



              Mr. Veltri’s argument before the hearing examiner implied that retrograde

extrapolation evidence is a relevant consideration in establishing the manner in which an

individual’s BAC rises immediately after consuming alcohol and subsequently declines.

       6
        The admission of blood alcohol test results in Dyer, however, was not deemed to be
reversible error because the results were not utilized at trial in conjunction with statutory
presumptions or as evidence that the driver was under influence of alcohol at time of the
alleged offense. Rather, the results were used to show that the driver had consumed
alcoholic beverages in substantial amounts prior to the incident in question. 177 W.Va. at
573, 355 S.E.2d at 362.

                                              7

Thus, Mr. Veltri argues that the lower court acted within its discretion in concluding that Mr.

Veltri’s BAC at the time of driving was below .08%. Further, Mr. Veltri maintains that the

circuit court did not actually require the DMV to provide evidence of retrograde

extrapolation; rather, the court considered Mr. Veltri’s argument on the issue as overcoming

the prima facie evidence of the BAC chemical test.



              The deficiency in Mr. Veltri’s argument regarding the concept of retrograde

extrapolation is that he failed to present any evidence at trial of the retrograde extrapolation

in his individual circumstance. He simply presented the concept of retrograde extrapolation

in seeking to rebut the DUI evidence. The evidence clearly demonstrates that Mr. Veltri was

stopped at 1:43 a.m. and arrested at 1:57 a.m. The breathalyzer test at issue was administered

at 2:31 a.m., only forty-eight minutes after the stop and thirty-four minutes after the arrest.

Consequently, based upon the clear language of West Virginia Code § 17C-5-8 and the

precedent of this Court, because the breath test was administered within two hours of Mr.

Veltri’s arrest, the evidence resulting therefrom was admissible as prima facie evidence that

Mr. Veltri was under the influence of alcohol while driving, and such evidence was properly

considered by the DMV in the administrative license revocation hearing. The DMV satisfied

its burden under the statute, and evidence of retrograde extrapolation was not required to be

submitted by the DMV.




                                               8

                                 B. Weighing of Evidence

              The DMV also asserts that the circuit court erred in crediting Mr. Veltri’s

testimony to a greater degree than the assertions contained in the DUI Information Sheet.

The DMV argues that the circuit court was incorrect in its conclusion that the hearing

examiner failed to comply with the mandates of Muscatell by insufficiently analyzing the

conflicting testimony of Mr. Veltri and the arresting officer, through the DUI Information

Sheet. Syllabus point six of Muscatell provides guidance for reconciling conflicting

evidence, as follows:

                     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.

196 W.Va. at 590, 474 S.E.2d at 520. The DMV contends that the hearing examiner properly

weighed the evidence. Conversely, Mr. Veltri asserts that the circuit correctly arrived at the

opposite conclusion, based upon Mr. Veltri’s testimony contradicting many of the statements

contained in the DUI Information Sheet.



              This Court’s decision in Muscatell was premised upon the issue of whether a

vehicle stop satisfied the reasonable suspicion standard. Id. at 594, 474 S.E.2d at 524. This

Court noted that the Commissioner had “failed to make an adequate analysis of the facts from

which this Court or the circuit court could determine whether the stopping of the appellee’s

                                              9

vehicle was lawful under the proper standard.” Id. at 595, 474 S.E.2d at 525. The problem

in Muscatell centered upon the conflicting testimony of the arresting officer. On direct

examination, he indicated that he had observed Ms. Muscatell’s vehicle cross the center line;

on cross examination, however, the officer indicated that an anonymous phone call had

formed the basis for the stop. Although the Commissioner ultimately resolved that conflict

in favor of the officer’s direct testimony, this Court recognized that “[n]othing in the findings

of fact of the Commissioner advises this Court why the Commissioner resolved this conflict

in the testimony of the trooper in favor of the direct testimony and disregarded the

cross-examination.” Id. at 598, 474 S.E.2d at 528 (emphasis supplied).



              The conflict in the case sub judice does not involve inconsistency between the

direct and cross examinations of a single individual. Rather, this matter is focused upon the

conflict between the officer’s DUI Information Sheet and the testimony of the driver, Mr.

Veltri. In that manner, this case is extremely similar to the fact pattern in Sims, wherein the

conflict was between the testimony of the arresting officer and the driver, Mr. Sims. 227 W.

Va. at 402, 709 S.E.2d at 757. The Sims Court found that “the discrepancy . . . simply boils

down to a credibility issue.” Id. Such credibility issues are generally held to be within the

sound discretion of the administrative law judge and are entitled to deference. See Syl. Pt.

1, in part, Cahill v. Mercer Cnty. Bd. of Educ., 208 W.Va. 177, 539 S.E.2d 437 (2000)

(“[c]redibility determinations made by an administrative law judge are . . . entitled to



                                               10

deference.”). As noted in Sims, deference is required “because the hearing examiner who

observed the witness testimony is in the best position to make credibility judgments.” 227

W.Va. at 402, 709 S.E.2d at 757. Based upon this reasoning, the Sims Court disagreed with

“the circuit court’s finding that Commissioner Miller’s ‘Remand Final Order’ did not contain

a ‘proper analysis of the conflicting testimony of the Petitioner and the Arresting Officer’ to

satisfy Muscatell.” Id. at 402-03, 709 S.E.2d at 757-58.



              Similarly, the circuit court in the present case observed that there “was a

conflict in what the officer wrote and what Mr. Veltri said and therefore, the Commissioner

was required to address credibility issues.”7 The circuit court found that the “statements

       7
        The transcript of the hearing reveals a series of questions addressed to Mr. Veltri.
Most of those questions elicited single word answers from Mr. Veltri, essentially denying all
of the allegations contained in the DUI Information Sheet. For example, when asked if he
was “weaving at any time,” Mr. Veltri answered, “No, I wasn’t weaving.” The questions
continued as follows:

       Mr. Pizzuti (counsel for Mr. Veltri): And did you almost strike an object or a
       vehicle?

       Mr. Veltri: Huh huh, no.

       Mr. Pizzuti: Okay. So in other words do you think you were driving
       improperly in anyway?

       Mr. Veltri: I don’t think so, no.

       Mr. Pizzuti: Okay. And did you obey all the traffic laws when you were
       driving?

       Mr. Veltri: Yeah, I wasn’t speeding or anything.

                                              11

contained in the Hearing Examiner and Commissioner’s Final Order” do not satisfy the

Muscatell standard.




      Mr. Pizzuti: Okay. Did you feel that you were under the influence of alcohol
      when you were driving at that time? In other words do you think you were
      drunk?

      Mr. Veltri: I wasn’t drunk, no.


      Mr. Pizzuti: Okay. And you were not affected in anyway from driving?


      Mr. Veltri: No. Absolutely not.


      Mr. Pizzuti: So in other words you were not impaired?


      Mr. Veltri: Not impaired for driving, no.


      Mr. Pizzuti: Okay. And you admitted to the officers, to the officer that you

      had some alcoholic beverage correct?


      Mr. Veltri: I did tell I had a small glass of wine.


             ....

      Mr. Pizzuti: Were you unsteady?

      Mr. Veltri: I was steady, no, no I wasn’t unsteady.

             ....

      Mr. Pizzuti: Was your speech slurred?

      Mr. Veltri: No.

      Mr. Pizzuti: And do you believe that your eyes were blood shot?

      Mr. Veltri: No.

                                             12

              Upon review of the order of the hearing examiner, this Court finds that the

lower court erred in concluding that the Muscatell standard was violated. As referenced

above, the hearing examiner clearly identified the conflict between the DUI Information

Sheet and the testimony of Mr. Veltri. The hearing examiner subsequently resolved that

conflict by explaining that although Mr. Veltri “refuted the Investigating Officer’s allegation

made in reference to his manner of driving and his level of intoxication,” Mr. Veltri “only

stated that he did not do what the Investigating Officer stated, offering no other explanation

of his manner of driving or why he was not intoxicated even though his blood alcohol

concentration was ninety-five thousandths of one percent.”8



              This Court finds that Muscatell’s requirement that the conflict in evidence be

“resolved by a reasoned and articulate decision, weighing and explaining the choices made

and rendering its decision capable of review by an appellate court” was adequately satisfied

by the hearing examiner in this case. Muscatell, 196 W.Va. at 590, 474 S.E.2d at 520. The

hearing examiner was in a position to observe the demeanor of the witness, noted the obvious

       8
        The issue of exactly what the hearing examiner meant in utilizing the word “refute”
was raised in this appeal. While Webster’s Dictionary defines refute as “to prove wrong by
argument or evidence,” it also indicates that refute can mean “to deny the truth or accuracy
of.” Webster’s New Collegiate Dictionary 965 (1979). Thus, the hearing examiner’s use of
the word “refute” does not necessarily indicate a conclusion that Mr. Veltri proved the DUI
Information Sheet to be incorrect. On the contrary, a reading of the hearing examiner’s
decision within the context of the entire decision clearly demonstrates that the hearing
examiner’s use of the word “refute” was intended merely to indicate that Mr. Veltri denied
the truth of the DUI Information Sheet allegations and rebutted them in some manner in his
own testimony.

                                              13

difference between the allegations of the DUI Information Sheet and Mr. Veltri’s denials,

and resolved the conflict by explaining in the order that Mr. Veltri simply denied the actions

surrounding the DUI incident without offering any credible explanation to the contrary.



              In rendering its decision to reverse the hearing examiner’s conclusions, the

circuit court also relied upon the fact that the investigating officer was not present at the

license revocation hearing. In so doing, the circuit court quoted an outdated version of West

Virginia Code of State Rules § 91-1-3.7.2, requiring dismissal of the revocation matter if the

arresting officer fails to appear. That rule, as amended in 2005, no longer requires the

dismissal of the case where the arresting officer is not present at the hearing. Id. It is also

imperative to note that Mr. Veltri did not request the presence of the arresting officer at the

hearing.9




       9
         West Virginia Code § 17C-5A-2(d) (2008), in effect at the time of this incident,
required the presence of the arresting officer only if requested by the person whose license
is at issue. If the officer was not present, the statute provided that the commissioner “shall
consider the written statement, test results and any other information submitted by the
investigating officer . . . .” Id. Although West Virginia Code of State Regulations § 91-1­
3.7.2 provides that where the officer is not in attendance, revocation or suspension may not
be based solely on the arresting officer’s affidavit, the DMV correctly asserts that such rule
must be read in conjunction with West Virginia Code § 17C-5A-2(d), which allowed the
commissioner to rely on the arresting officer’s written statement and other information when
the licensee did not request the investigating officer’s presence at the hearing. West Virginia
Code § 17C-5A-2 was amended subsequent to the hearing in this matter; those amendments
are not relevant to this Court’s decision herein.

                                              14

                                      IV. Conclusion

              Based upon the foregoing discussion, the order of the Circuit Court of Hancock

County is reversed, and this case is remanded to the circuit court for reinstatement of the

DMV order revoking Mr. Veltri’s license to drive a motor vehicle.



                                                  Reversed and Remanded with Directions.




                                            15

