                           STATE OF WEST VIRGINIA

                         SUPREME COURT OF APPEALS

                                                                             FILED
STEVEN O. DALE, ACTING COMMISSIONER,                                     April 10, 2014
WEST VIRGINIA DIVISION OF MOTOR VEHICLES,                               released at 3:00 p.m.
                                                                        RORY L. PERRY II, CLERK
Petitioner Below, Petitioner                                          SUPREME COURT OF APPEALS
                                                                          OF WEST VIRGINIA

vs.) No. 13-0266 (Kanawha County 12-AA-95)

RICKY REYNOLDS,
Respondent Below, Respondent


                              MEMORANDUM DECISION

                In this appeal, petitioner, Steven O. Dale,1 Acting Commissioner of the West
Virginia Division of Motor Vehicles (“DMV”), through counsel, Janet E. James, appeals the
final order of the Circuit Court of Kanawha County entered February 20, 2013. In its order,
the circuit court affirmed the final decision of the Office of Administrative Hearings
(“OAH”), which had concluded the evidence was insufficient to uphold the driver’s license
revocation of the respondent, Ricky Reynolds (“Mr. Reynolds”), for driving under the
influence (“DUI”) of alcohol. Mr. Reynolds, through counsel, David Moye, filed a summary
response to this Court.

              Based upon the parties’ written briefs and oral arguments, the appendix record
designated for our consideration, and the pertinent authorities, we determine that the circuit
court erred in affirming the decision of the OAH. Accordingly, we hereby reverse and
remand this case. This case presents no new or significant questions of law. Furthermore,
for the reasons set forth herein, this case satisfies the “limited circumstance” requirement of
Rule 21(d) of the Rules of Appellate Procedure and is appropriate for the Court to issue a
memorandum decision rather than an opinion.

               The underlying facts of this case began on June 29, 2010, when Deputy C.S.
Tusing of the Putnam County Sheriff’s Department was called to assist medics in the parking
lot of the Kroger store in Scott Depot, West Virginia. The medics had been called when Mr.


              1
                Acting Commissioner, Steven O. Dale, replaced the former commissioner as
the named party. See W. Va. R. App. P. 41(c) (“When a public officer . . . ceases to hold
office, the action does not abate and his successor is automatically substituted as a
party. . . .”).
Reynolds was discovered in the driver’s seat of a vehicle, unresponsive, with the engine
running, lights on, and parked in an area not designated for parking. Once awakened, Mr.
Reynolds attempted to drive off, but was stopped by the medics. Mr. Reynolds was
belligerent with the medics and admitted that he was “drinking beer and vodka[.]”

             Upon his arrival on the scene, Deputy Tusing went to the truck and spoke to
Mr. Reynolds. The Deputy noticed a strong odor of an alcoholic beverage and asked Mr.
Reynolds to exit the vehicle. Mr. Reynolds told Deputy Tusing that he had a pint of vodka
mixed with water, and that he had started drinking at the Scott Depot Park and Ride and later
moved to the Kroger parking lot. Mr Reynolds was administered three field sobriety tests
by Deputy Tusing, and he failed all three tests. He also failed the breathalyser test.

               Deputy Tusing then transported Mr. Reynolds to the Hurricane Police
Department for processing. Mr. Reynolds was read his Miranda rights2 and then repeated
that he had started drinking at the Scott Depot Park and Ride and then moved to the Kroger
parking lot. After the implied consent statement was read to him, Mr. Reynolds provided a
breath sample for the intoximeter, which measured his blood alcohol concentration at .207.

                Deputy Tusing completed a DUI information sheet, and Mr. Reynolds was
charged with aggravated DUI pursuant to W. Va. Code § 17C-5-2 (2010) (Supp. 2012). On
July 21, 2010, the DMV suspended Mr. Reynolds’s privilege to operate a motor vehicle in
this state for a period of forty-five days. Mr. Reynolds requested a hearing, which was held
April 5, 2012. At the hearing,3 Mr. Reynolds’s counsel proffered that the criminal DUI
charge had been dismissed and had been re-filed as a charge of public intoxication.4

               2
                   See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966).
               3
             Neither Mr. Reynolds nor Deputy Tusing was present, but Mr. Reynolds
waived the Deputy’s appearance at the hearing.
               4
                This Court recently recognized that the dismissal of the criminal charge has
no effect on the administrative license revocation process. Specifically, in Syllabus point 4
of Miller v. Epling, 229 W. Va. 574, 729 S.E.2d 896 (2012), we stated:
                       When a criminal action for driving while under the
               influence in violation of West Virginia Code § 17C-5-2 (2008)
               results in a dismissal or acquittal, such dismissal or acquittal has
               no preclusive effect on a subsequent proceeding to revoke the
               driver’s license under West Virginia Code § 17C-5A-1 et seq.
                                                                                    (continued...)

                                                2

               On July 22, 2012, the OAH issued a decision reversing the DMV’s revocation.
In so doing, the OAH noted as follows:
               In the present matter, some surrounding circumstances indicate
               that the vehicle was driven by [Mr. Reynolds]. However,
               according to the interview section within the D.U.I. Information
               Sheet, [Mr. Reynolds] told the [i]nvestigating [o]fficer that he
               was not operating a vehicle. Further, according to the criminal
               complaint submitted by [Mr. Reynolds’s] counsel and entered
               into evidence . . . [Mr. Reynolds] stated that he started to drink
               at the Scott Depot Park and Ride, and then went up to the
               Kroger where he sits when he drinks. Based on that statement,
               the evidence reflects that [Mr. Reynolds] started to drink at the
               Scott Depot Park and Ride, but then decided to sit and drink in
               the Kroger parking lot instead. Thus, [the DMV] did not meet
               its burden of proof regarding whether [Mr. Reynolds] drove
               while under the influence and [Mr. Reynolds] successfully
               rebutted the evidence submitted by [the DMV].

              The DMV appealed the OAH’s decision to the Circuit Court of Kanawha
County. The circuit court determined that, “based upon the evidence as a whole, the
[e]xaminer was not clearly wrong in determining that [the DMV] did not meet its burden of
proof regarding whether [Mr. Reynolds] drove while under the influence.” Thus, by order
entered February 20, 2013, the circuit court affirmed the reversal of the license revocation.
From this order, the DMV appeals to this Court.

              The standard of review has been articulated previously 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.


              4
               (...continued)
              Moreover, in the license revocation proceeding, evidence of the
              dismissal or acquittal is not admissible to establish the truth of
              any fact. In so holding, we expressly overrule Syllabus Point 3
              of Choma v. West Virginia Division of Motor Vehicles, 210
              W. Va. 256, 557 S.E.2d 310 (2001).

                                              3

Syl. pt. 1, Muscatell v. Cline, 196 W. Va. 588, 474 S.E.2d 518 (1996). Mindful of these
applicable standards, we now consider the substantive issues raised herein.

              On appeal to this Court, the DMV asserts that the circuit court erred in finding
that the evidence failed to prove that Mr. Reynolds drove while under the influence of
alcohol. Further, the DMV sets forth that the circuit court erred in finding that the
investigating officer’s absence from the hearing created a deficit in the evidence.
Conversely, Mr. Reynolds suggests that there was no evidence to prove by a preponderance
that he operated a vehicle while under the influence of alcohol.

               The uncontested facts show that Mr. Reynolds was intoxicated the night of
June 29, 2010. However, the question presented for this Court’s decision is whether the
evidence proves that Mr. Reynolds operated a motor vehicle during his intoxication. It is
well-settled that
                      [w]here there is evidence reflecting that a driver was
               operating a motor vehicle upon a public street or highway,
               exhibited symptoms of intoxication, and had consumed
               alcoholic beverages, this is sufficient proof under a
               preponderance of the evidence standard to warrant the
               administrative revocation of his driver’s license for driving
               under the influence of alcohol.
Syl. pt. 2, Albrecht v. State, 173 W. Va. 268, 314 S.E.2d 859 (1984). Further, there is no
requirement that the police officer must witness the person driving while under the influence.
See Syl. pt. 3, Carte v. Cline, 200 W. Va. 162, 488 S.E.2d 437 (1997) (“W. Va. Code
§ 17C–5A–1a(a) (1994) does not require that a police officer actually see or observe a person
move, drive, or operate a motor vehicle while the officer is physically present before the
officer can charge that person with DUI under this statute, so long as all the surrounding
circumstances indicate the vehicle could not otherwise be located where it is unless it was
driven there by that person.”); Bennett v. Coffman, 178 W. Va. 500, 502, 361 S.E.2d 465, 467
(1987), overruled on other grounds (stating that “an officer having reasonable grounds to
believe that a person has been driving while drunk may make a warrantless arrest for that
offense even though the offense is not committed in his presence.”) (internal citation
omitted)); accord State v. Byers, 159 W. Va. 596, 224 S.E.2d 726 (1976) (finding that
driving under influence does not have to be committed in presence of officer).

              In the instant case, Mr. Reynolds admitted that he began drinking at the Park
and Ride, and that he then moved to the Kroger parking lot. Mr. Reynolds was discovered,
unresponsive, in the vehicle with the engine running, lights on, and not parked in a parking
spot in the Kroger parking lot. When medics finally woke him, Mr. Reynolds attempted to
drive away, which was described in the DUI information sheet and was confirmed by the

                                              4

medic in the criminal complaint. Further, the arresting officer’s information sheet shows that
Mr. Reynolds had an alcoholic odor on his breath, that he was unsteady when exiting his
truck and walking and standing, that his speech was slurred and his eyes were bloodshot, that
he admitted drinking a pint of vodka, that he failed several sobriety tests, and that the
Intoximeter test showed a blood alcohol content of .207.

                Having reiterated that the evidence was sufficient to show that Mr. Reynolds
was intoxicated, the relevant inquiry is whether “the surrounding circumstances indicate the
vehicle could not otherwise be located where it is unless it was driven there by that person.”
Syl. pt. 3, in part, Carte, 200 W. Va. 162, 488 S.E.2d 437. Factually similar is the case of
Montgomery v. West Virginia State Police, 215 W. Va. 511, 600 S.E.2d 223 (2004) (per
curiam). In Montgomery, a grievance proceeding by a State Police Officer, the facts showed
that the grievant was found at 7:05 a.m., intoxicated, in the driver’s seat of a parked, running,
State Police cruiser assigned to him. In that case, even in the absence of any witness who
observed the grievant driving, this Court determined that the circumstances indicated the
vehicle could not otherwise be located where it was unless the grievant had driven it to its
current position. Thus, the revocation was upheld.

               Likewise, in a subsequent case, Ullom v. Miller, 227 W. Va. 1, 13-14, 705
S.E.2d 111, 123-24 (2010), the focus of this Court’s review was on the community caretaker
doctrine and any resultant searches. However, the facts are illustrative to our present case.
In Ullom, the defendant was in a car parked off the side of the road, clearly off the roadway,
with its parking lights on. The location of the car was not in the way of oncoming traffic, and
the car was parked in front of a chain gate blocking what appeared to be a dirt road leading
to a field. The lower court found no probable cause for the suspension of driving privileges.
This Court reversed, however, finding the facts that the defendant was found, likely
intoxicated, parked with parking lights on, enough to make a reasonable assumption that the
defendant drove while intoxicated. Therefore, the license revocation was reinstated.

               Mr. Reynolds urges this Court to follow our recent memorandum decision:
Miller v. Bennett, 2012 WL 3030813 (No. 11-0330 Mar. 30, 2012). In that decision, we
affirmed the circuit court’s determination that there was insufficient evidence to prove that
the defendant had been the driver of the car. Factually, the arresting officer admitted that he
did not see the defendant drive the car. Importantly, the defendant was not in his vehicle
when he was found. Moreover, the car was parked in the vicinity with another man in the
front seat. In that case, the decision turned on the fact that there was another man in the
vehicle, and there was nothing to show that the passenger had not been the actual driver.
Thus, Mr. Reynolds’s argument for a different result in his case based upon the application
of Miller is unfounded as the pertinent facts of the cases are inapposite.


                                               5

              In conclusion, this Court reiterates that there need not be affirmative evidence
to show that an individual charged with DUI was operating a vehicle. The evidence
demonstrates that Mr. Reynolds was intoxicated, alone, in a running vehicle with the lights
on; he admitted that he began drinking in one location and moved to another; and he
attempted to drive away when the medics woke him. It was reasonable to believe that the car
came to be in the Kroger parking lot as a result of Mr. Reynolds’s actions. Further, it was
reasonable to believe he drove the vehicle while intoxicated. Mr. Reynolds unquestionably
drove the vehicle from the Park and Ride, where he was admittedly drinking, to Kroger,
where he was indisputably drunk. Additionally, he attempted to drive away when the medics
woke him. The “driving” element was established by a preponderance of the evidence.5


              5
                  We recognize that the DMV argues a second assignment of error to this Court
regarding its contention that the circuit court erred in finding that the investigating officer’s
absence from the hearing created a deficit in the evidence. First, we point out that Mr.
Reynolds did not respond to this argument in his summary response. Second, we note that
Mr. Reynolds’s counsel waived the appearance of the arresting officer during the hearing
below. Third, there is no requirement that the evidence of record be testimonial as opposed
to documentary. See W. Va. Code § 29A-5-2(b) (“All evidence, including papers, records,
agency staff memoranda and documents in the possession of the agency, of which it desires
to avail itself, shall be offered and made a part of the record in the case, and no other factual
information or evidence shall be considered in the determination of the case. Documentary
evidence may be received in the form of copies or excerpts or by incorporation by
reference.”). See also Syl. pt. 3, Crouch v. W. Va. Div. of Motor Vehicles, 219 W. Va. 70,
631 S.E.2d 628 (2006) (holding that statements of the arresting officer are admissible in the
context of driver’s license revocation proceedings); Dale v. Odum, __ W. Va. __, __ S.E.2d
__, 2014 WL ------ (Nos. 12-1403 & 12-1509 Feb. 11, 2014) (per curiam) (relying on Crouch
to reinstate a license revocation where the driver argued that the evidence contained in the
DUI Information Sheet was inadmissible hearsay).
                 It follows that testimony is not necessary for the DMV to meet its burden of
proof. Documentary evidence can form the basis for a revocation decision if it is supported
by substantial evidence. The documentary evidence in the record shows that Mr. Reynolds
was drinking at the Park and Ride, that he drove to Kroger to continue drinking, and that he
attempted to drive away when awakened by medics. It shows he had an alcoholic odor on
his breath, that he was unsteady when exiting his truck and walking and standing, that his
speech was slurred and his eyes were bloodshot, that he admitted drinking a pint of vodka,
that he failed several sobriety tests, and that the Intoximeter test showed a blood alcohol
content of .207. There is sufficient evidence, unchallenged by Mr. Reynolds, that Deputy
Tusing had reasonable grounds to believe Mr. Reynolds was operating a motor vehicle while
                                                                                   (continued...)

                                               6

               For the foregoing reasons, we reverse the February 20, 2013, order by the
Circuit Court of Kanawha County. We further remand the matter to the circuit court for an
order reinstating the July 21, 2010, suspension imposed by the DMV.


                                                               Reversed and Remanded.


ISSUED: April 10, 2014

CONCURRED IN BY:

Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




              5
               (...continued)
under the influence of alcohol.

                                           7
