         IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                  January 2014 Term                        FILED
                                  _______________                     June 6, 2014
                                                                      released at 3:00 p.m.

                                                                    RORY L. PERRY II, CLERK

                                    No. 13-0761                   SUPREME COURT OF APPEALS

                                                                       OF WEST VIRGINIA
                                  _______________

               STEVEN O. DALE, ACTING COMMISSIONER OF

              WEST VIRGINIA DIVISION OF MOTOR VEHICLES,

                       Respondent Below, Petitioner


                                         v.

                             DONALD OAKLAND,

                          Petitioner Below, Respondent


      ____________________________________________________________

                 Appeal from the Circuit Court of Marshall County

                   The Honorable David W. Hummel, Jr., Judge

                           Civil Action No. 13-CAP-3


                         REVERSED AND REMANDED


      ____________________________________________________________

                            Submitted: March 26, 2014

                               Filed: June 5, 2014



Patrick Morrisey, Esq.	                       J. Thomas Madden III, Esq.
Attorney General	                             Madden Law Offices
Elaine L. Skorich, Esq.	                      Glen Dale, West Virginia
Assistant Attorney General	                   Counsel for the Respondent
DMV – Attorney General’s Office
Charleston, West Virginia	                    Robert G. McCoid, Esq.
Counsel for the Petitioner	                   McCamic, Sacco & McCoid, PLLC
                                              Wheeling, West Virginia
                                              Counsel for the Respondent


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.” Syllabus Point 1, Muscatell v. Cline, 196 W. Va. 588, 474 S.E.2d 518 (1996).



              2.     “In cases where the circuit court has amended 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.” Syllabus Point 2, Muscatell v. Cline, 196

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



              3.     “Where objections were not shown to have been made in the trial

court, and the matters concerned were not jurisdictional in character, such objections will

not be considered on appeal.” Syllabus Point 1, State Road Comm’n v. Ferguson, 148 W.

Va. 742, 137 S.E.2d 206 (1964).



              4.   “Upon a challenge by the driver of a motor vehicle to the admission in

evidence of the results of the horizontal gaze nystagmus test, the police officer who

administered the test, if asked, should be prepared to give testimony concerning whether


                                             i
he or she was properly trained in conducting the test, and assessing the results, in

accordance with the protocol sanctioned by the National Highway Traffic Safety

Administration and whether, and in what manner, he or she complied with that training in

administering the test to the driver.” Syllabus Point 2, White v. Miller, 228 W. Va. 797,

724 S.E.2d 768 (2012).



              5. “The ‘clearly wrong’ and the ‘arbitrary and capricious’ standards of

review are deferential ones which presume an agency’s actions are valid as long as the

decision is supported by substantial evidence or by a rational basis.” Syllabus Point 3, In

re Queen, 196 W. Va. 442, 473 S.E.2d 483 (1996).



              6.    “There are no provisions in either W. Va. Code, 17C-5-1 (1981), et

seq., or W. Va. Code, 17C-5A-1 (1981), et seq., that require the administration of a

chemical sobriety test in order to prove that a motorist was driving under the influence of

alcohol or drugs for purposes of making an administrative revocation of his driver’s

license.” Syllabus Point 1, Albrecht v. State, 173 W. Va. 268, 314 S.E.2d 859 (1984).




                                            ii
Per Curiam:

              The instant case is before the Court upon the appeal of Petitioner Steven O.

Dale, Acting Commissioner of the Division of Motor Vehicles (“Commissioner”), from a

June 15, 2013, order of the Circuit Court of Marshall County, reversing a final order of

the Office of Administrative Hearings (“OAH”) that upheld the Commissioner’s order

revoking Respondent Donald Oakland’s privilege to drive a motor vehicle.                The

Commissioner alleges that the circuit court erred in ignoring all of the evidence presented

that Mr. Oakland drove while under the influence of controlled substances and that Mr.

Oakland neither objected to nor rebutted the evidence presented by the Commissioner

during the proceedings below. Conversely, Mr. Oakland alleges that the circuit court

properly concluded that the hearing examiner was clearly wrong in finding that he was

under the influence of marijuana at the time the police officer stopped his vehicle. Mr.

Oakland also alleges that the Commissioner was without jurisdiction to enter an order

suspending his operator’s privileges in the absence of any accompanying arrest, because

a lawful arrest is a prerequisite to the issuance of any order of suspension. Upon

examination of the petition, the response, the submitted appendices, and the arguments of

counsel, we conclude that, for reasons set forth more fully below, the circuit court’s order

should be reversed and remanded for reinstatement of the Commissioner’s order revoking

Mr. Oakland’s license to operate a motor vehicle.



                                             I.


                 FACTUAL AND PROCEDURAL BACKGROUND


                                             1
              On October 12, 2010, Officer Sean Wilhelm of the Moundsville Police

Department, the investigating officer in this matter, observed a blue 2001 Ford Mustang

which failed to stop at a stop sign located at Grant Avenue and 3rd Street in Moundsville,

Marshall County, West Virginia. Officer Wilhelm initiated a traffic stop of the motor

vehicle and identified the Respondent Donald Oakland as the driver of the motor vehicle.

Officer Wilhelm detected a strong odor of marijuana emanating from within Mr.

Oakland’s vehicle as soon as he got behind the vehicle even before he activated the

emergency lights.



              Officer Wilhelm immediately placed Mr. Oakland in handcuffs, patted him

down, and put him in the back of the police cruiser. Officer Wilhelm observed that Mr.

Oakland’s eyes appeared glassy. Subsequently, Officer Steve Oliver of the Moundsville

Police Department arrived at the scene of the traffic stop to provide assistance. Officer

Wilhelm noted that Mr. Oakland appeared steady as he exited the vehicle and as he

walked to the roadside.



              Mr. Oakland admitted to Officer Wilhelm that he had “a joint” and that he

smoked marijuana in the car while driving around Moundsville.            Officer Wilhelm

administered a series of field sobriety tests to Mr. Oakland, including the horizontal gaze

nystagmus (“HGN”) test, the walk-and-turn test, and the one-leg stand test. Mr. Oakland

passed the HGN test. However, he failed the walk-and turn test because during the

                                            2

instruction phase of the test, he stepped off the line of walk, missed walking in a heel-to­

toe manner as instructed, raised his arms for balance, and completed an improper turn.

Additionally, Mr. Oakland failed the one-leg stand test because he used his arms for

balance and was unable to keep his foot raised off of the ground. After searching Mr.

Oakland’s car, the officers located a rolled “joint” containing a green leafy substance that

they deemed to be marijuana, a partially burnt “joint” and an Altoids tin with a green

leafy substance inside. Officer Wilhelm handcuffed Mr. Oakland and transported him to

the hospital for the administration of a blood test. Officer Wilhelm waited for the results

of the blood test before placing Mr. Oakland under arrest for a criminal offense.



              On November 9, 2010, the DMV revoked Mr. Oakland’s license. On

December 2, 2010, Mr. Oakland requested an administrative hearing before the Office of

Administrative Hearings (“OAH”). On January 7, 2011, Mr. Oakland appeared at the

administrative hearing and was represented by counsel; however, Mr. Oakland did not

testify at the hearing. At the time of the hearing, Officer Wilhelm had not received the

results of the blood test but the hearing examiner found that they were not necessary

pursuant to Syl. Pt. 4, Coll v. Cline, 202 W.Va. 599, 505 S.E.2d 662 (1998). The OAH

upheld the driver’s license revocation due to DUI of controlled substances. Mr. Oakland

appealed to the Circuit Court of Marshall County which entered a June 15, 2013 order,

reversing the decision of the OAH finding that “the material findings of fact upon which

the adverse legal conclusions are based are without any basic foundational support.” The

circuit court found the hearing examiner’s findings “so fatally flawed that the [c]ourt is at

                                             3

a loss to adequately describe same other than to say that such were arbitrary, capricious,

an abuse of discretion, and a clearly unwarranted exercise of discretion.” The circuit

court noted that the record did not establish either officer’s training or ability to identify

marijuana by sight or scent, and failed to show that either officer was capable of giving a

field sobriety test. This appeal followed.


                                             II.


                               STANDARD OF REVIEW


              With regard to the standard of review, this Court has held that

              [o]n 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). Furthermore,

              [i]n cases where the circuit court has amended 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). Guided by these

standards, we proceed to consider the parties’ arguments.



                                             III.


                                        ANALYSIS




                                              4
              The Commissioner alleges that the circuit court erred in ignoring all of the

evidence presented that Mr. Oakland drove while under the influence of controlled

substances. Furthermore, the Commissioner asserts that Mr. Oakland neither objected to

nor rebutted the evidence presented by the Commissioner during the proceedings below.

The Commissioner contends that because sufficient evidence of DUI was presented

below, the circuit court’s order reversing the OAH was an abuse of discretion.

Conversely, Mr. Oakland alleges that the circuit court properly concluded that the hearing

examiner was clearly wrong in concluding that he was under the influence of marijuana

at the time the police officer stopped his vehicle.



              In reversing the OAH, the circuit court stated,

              The material findings of fact upon which the adverse legal
              conclusions are based are without any basic foundational
              support. For example, there is not an iota of testimony or
              evidence otherwise as to either of the investigating officer’s
              respective education, training, or experience regarding the
              identification of marijuana by sight and/or scent or how an
              individual who ingested such might appear if he/she were
              “under the influence.” The same can be said for the
              education, training, or experience of either officer regarding
              the administration and interpretation of “series of field
              sobriety tests” relied upon by the Hearing Examiner. If
              anything, the testimony on cross-examination evidenced that
              at least one of the officers was not knowledgeable about the
              proper administration of The Standardized Field Sobriety Test
              (SFST) developed by the U. S. Department of Transportation.
              Moreover, there is absolutely no testimony in the underlying
              record regarding either officer’s credentials whatsoever.
              Accordingly, the findings of fact are both arbitrary and
              capricious as well as an abuse of discretion and a clearly
              unwarranted exercise of discretion.


                                              5

              First, Mr. Oakland asserts that there was no evidence that the substance

obtained by the officers was marijuana. However, the Commissioner contends that

regardless of whether or not the green leafy substance was field or lab tested and

regardless of whether or not the officers testified about their education, training, or

experience regarding identification of marijuana by sight, Mr. Oakland admitted to

Officer Wilhelm that he had a joint and that he smoked marijuana in the car while driving

around Moundsville. The hearing examiner addressed this issue in the Final Order:

              Finally, the Petitioner’s Counsel asserted that the Officers
              failed to establish that the green leafy substance found in the
              motor vehicle was marijuana, and that the Petitioner had
              smoked the marijuana prior to operating the motor vehicle on
              the date of the stated offense. However, the Investigating
              Officer testified that he detected the odor of marijuana
              emitting from the vehicle, a partially burned marijuana
              cigarette was located within the motor vehicle and most
              significantly, the Petitioner admitted to the Officers while at
              the scene that he had smoked marijuana.

(Emphasis added).


              We agree with the Commissioner that the hearing examiner did not need

the results of field or lab tests to make a determination, based on the totality of the

evidence, that the green leafy substance was marijuana and that Mr. Oakland had

ingested the same while driving around Moundsville: Mr. Oakland admitted to both.

Moreover, Mr. Oakland did not testify at the administrative hearing. Therefore, the

officers’ testimony remains wholly unrebutted regarding Mr. Oakland’s admissions of

possession and ingestion. Accordingly, we find that the issue of any field or lab testing

of the marijuana is irrelevant.

                                            6

              Furthermore, contrary to the circuit court’s holding, there was sufficient

evidence in the record for the hearing examiner to make the findings of fact which

supported the Commissioner’s Order of Revocation because the hearing examiner found

that the “Investigating Officer detected a strong odor which he identified as marijuana

emanating from within the Petitioner’s vehicle.” The hearing examiner’s finding is

supported by Officer Wilhelm’s testimony that

              [a]s soon as I got behind the vehicle, before I even activated
              my lights, I could smell the odor of marijuana. I walked up to
              the vehicle, asked the Defendant [Mr. Oakland] for his
              license, registration, and insurance. His window was down on
              the driver’s side. At that time I detected a strong odor of
              burned marijuana.


              Mr. Oakland’s counsel did not object to this particular testimony. We have

repeatedly held that “[w]here objections were not shown to have been made in the trial

court, and the matters concerned were not jurisdictional in character, such objections will

not be considered on appeal.” Syl. Pt. 1, State Road Comm’n v. Ferguson, 148 W. Va.

742, 137 S.E.2d 206 (1964). The Commissioner argues that because Mr. Oakland did not

testify at the administrative hearing, all of Officer Wilhelm’s testimony remains

unrebutted.



              The hearing examiner found as fact that the “Petitioner admitted to the

Officers that he smoked marijuana.” This finding is substantiated by Officer Wilhelm’s

testimony:

                                            7

             A. I asked Mr. Oakland if he had any marijuana in the car,
             and he replied yeah. He said, “I had a joint.”

             Q. So when you asked him about marijuana, he replied that he
             did have a joint?

             A. Yes.

             Q. Did he make any statements as to whether he had
             consumed ­

             A. Not at that point.

             Q. Not at that point. At any time did he though?

             A. Yes.


             Again, Mr. Oakland’s counsel did not object to this particular testimony,

and Mr. Oakland did not rebut Officer Wilhelm’s testimony.



             Furthermore, the record reveals that the hearing examiner found that the

officers conducted a search of “Petitioner’s motor vehicle and located a rolled ‘joint’

containing a green leafy substance that they deemed to be marijuana” and a “partially

burnt ‘joint’ containing a green leafy substance that they believed to be marijuana.” The

OAH also found that the officers “located an Altoids tin which contained a green leafy

substance that they concluded was marijuana.” These findings are supported by Officer

Wilhelm’s testimony:

             Q. What was found?

             A. A [ sic] approximately 4-inch rolled joint, unburned, as
             well as a burned joint approximately a quarter inch long, and


                                           8
              an Altoids can that had a green leafy substance in it, had the
              odor of marijuana coming from it.

              Q. You referred to I believe a burned joint and an unburned
              joint. In your experience, what was the substance within the
              joint?

              A. I believed it to be marijuana....

              Q. What did you believe that green leafy substance to be
              within the Altoids can?

              A. Also marijuana.


Once again, Mr. Oakland’s counsel did not object to this particular testimony, and Mr.

Oakland did not rebut Officer Wilhelm’s testimony.



              Mr. Oakland asserts that while he admitted to smoking marijuana, there

was no evidence offered or otherwise introduced reflecting any admission by Mr.

Oakland that he was actually under the influence of marijuana while he was driving. He

contends that of the three field sobriety tests administered to him, he passed one (HGN),

failed one (the walk-and-turn test), and, as to the third, insufficient evidence exists to

state whether he passed or failed (the one-leg stand test). While the circuit court

concluded that there is not an “iota of evidence” regarding either officer’s education,

training, or experience of either officer regarding the administration and interpretation of

the field sobriety tests, and that there is “absolutely no testimony in the underlying record

regarding either officer’s credentials whatsoever”, we find that these conclusions by the

circuit court are not supported by the record.


                                              9

              The record reveals that Mr. Oakland received two decisional points on the

one-leg stand test, and two or more decisional points constitutes failure of that test.

Officer Wilhelm testified at the revocation hearing that one of the points assessed against

Mr. Oakland was for raising his arms from his side. Officer Wilhelm also testified that

Mr. Oakland put his foot down on count twenty-one of thirty on the one leg stand test.

Mr. Oakland contends that Officer Wilhelm conceded on cross-examination that he could

not recall the distance that Mr. Oakland raised his arms and that the standard prescribed

by the National Highway Transportation Safety Administration (“NHTSA”) manual for

the administration of standardized field sobriety tests allows a subject to raise his arms up

to six inches without failing that portion of the test. However, our review of the record

reveals that on cross-examination, Mr. Oakland’s counsel asked Officer Wilhelm,

“Where did you learn the field sobriety tests? Who taught them to you?” Officer Wilhelm

replied, “[a]t the West Virginia State Police Academy.” No further inquiry regarding

Officer Wilhelm’s training was had.



              This Court has addressed the admissibility of field sobriety test results in

administrative license revocation cases. In syllabus point 2 of White v. Miller, 228 W.

Va. 797,724 S.E.2d 768 (2012), this Court held that

              [u]pon a challenge by the driver of a motor vehicle to the
              admission in evidence of the results of the horizontal gaze
              nystagmus test, the police officer who administered the test, if
              asked, should be prepared to give testimony concerning
              whether he or she was properly trained in conducting the test,

                                             10
                and assessing the results, in accordance with the protocol
                sanctioned by the National Highway Traffic Safety
                Administration and whether, and in what manner, he or she
                complied with that training in administering the test to the
                driver.


Id. (emphasis added).      This Court has recently revisited the administration of field

sobriety tests in Dale v. McCormick, 231 W. Va. 628, 749 S.E.2d 227 (2013). Therein

we held that,

                [u]nder the principles set out in White, Trooper Miller
                properly admitted evidence of his administration of the
                horizontal gaze nystagmus test to Ms. McCormick and her
                failure to pass the same. To the extent that Ms. McCormick
                believed Trooper Miller did not perform the test in
                accordance with the law, she was required to question
                Trooper Miller in this area. Moreover, even if Trooper Miller
                failed to satisfy some requirement for administering the
                horizontal gaze nystagmus test, such failure “went to the
                weight of the evidence, not its admissibility.” In re Flood
                Litigation Coal River Watershed, 222 W. Va. 574, 582, 668
                S.E.2d 203, 211 (2008).


231 W. Va. at 633, 749 S.E.2d at 232. In McCormick, instead of permitting a driver to

remain silent at hearing regarding the officer’s credentials and administration of the field

sobriety test then later object to their absence or admissibility, this Court required the

driver to take an active role in questioning the officer about the administration of those

tests and credentials. Id. Pursuant to this Court’s decision in McCormick, if Mr. Oakland

had a serious inquiry or challenge to the quality or quantity of Officer Wilhelm’s

response about his credentials, the onus was on Mr. Oakland to inquire further.




                                             11

Accordingly, the circuit court erred in concluding that there was “absolutely no testimony

in the underlying record regarding either officers’ credentials whatsoever.”



              Mr. Oakland asserts that nothing in White or Miller states that the officer

may simply state that an operator has failed a standardized field sobriety test without also

relating how such failure constitutes proof of the operator’s impairment. Mr. Oakland

contends that in the matter sub judice, arresting Officer Wilhelm neglected to state how,

exactly, failing a field sobriety test constitutes evidence of being under the influence of

drugs. The record reveals that the OAH hearing examiner addressed Mr. Oakland’s

argument about the admissibility of the field sobriety tests and the weight which the

hearing examiner gave the tests:

              Although the Petitioner’s Counsel attempted to argue that the
              results of the field sobriety tests should not be considered in
              this matter since these test [ sic] were designed to be used by
              law enforcement officers as a guide to determine whether a
              driver is under the influence of alcohol, and not controlled
              substances or drugs, these tests are indicators of impairment.
              The battery of standardized field sobriety tests, which were
              developed by the National Highway Traffic Safety
              Administration after extensive research, are “divided
              attention” tests that are easily performed by most unimpaired
              people. They merely require a suspect to listen and follow
              instructions while performing simple physical movements.
              Impaired persons have difficulty with tasks requiring their
              attention to be divided between simple mental and physical
              exercises.


              “The ‘clearly wrong’ and the ‘arbitrary and capricious’ standards of review

are deferential ones which presume an agency’s actions are valid as long as the decision


                                            12

is supported by substantial evidence or by a rational basis.” Syllabus Point 3, In re

Queen, 196 W. Va. 442, 473 S.E.2d 483 (1996). We find that the hearing examiner’s

decision was supported by the substantial evidence presented, and the circuit court

abused its discretion in substituting its judgment for that of the fact finder below. It is

unrebutted that Mr. Oakland, who was operating his motor vehicle on the streets of

Moundsville, West Virginia, admitted to Officer Wilhelm that he had smoked marijuana

while driving around town. Further, it is unrebutted that Mr. Oakland ignored stopping at

a stop sign and had glassy eyes. The circuit court failed to address this other indicia of

impairment in its order reversing the OAH’s order upholding Mr. Oakland’s license

revocation. Even if we assumed for the sake of argument that the results of the field

sobriety tests were inadmissible to prove that Mr. Oakland was under the influence of

marijuana, sufficient evidence exists in this case to substantiate that Respondent was

under the influence, as he admitted to smoking marijuana, had glassy eyes, and he roll-

stopped through a stop sign.



              Lastly, Mr. Oakland alleges that the Commissioner was without jurisdiction

to enter an order suspending his operator’s privileges in the absence of an accompanying

arrest, because a lawful arrest is a prerequisite to the issuance of any order of

suspension.1 The record indicates that Officer Wilhelm waited for the results of the


1
  Although the circuit court’s Order reversing the OAH decision did not address the “non­
arrest” issue, the record reveals that Mr. Oakland raised it at the OAH hearing and, again,
in both his Petition for Judicial Review and his Brief and Memorandum of Law seeking
(continued . . .)
                                            13

blood test before placing Mr. Oakland under arrest for a criminal offense and that Mr.

Oakland has never been arrested for any offense related to the events of October 12,

2010.



              Mr. Oakland contends that W. Va. Code § 17C-5A-1(c) mandates that a

lawful arrest occur. This Code section provides, in pertinent part, that

              [i]f upon examination of the written statement of the officer
              and the test results described in subsection (b) of this section,
              the commissioner shall determine that a person was arrested
              for an offense described in [W. Va. Code § 17C-5-2]. . . and
              that. . . at the time the person was arrested he or she was
              under the influence of. . . controlled substances or drugs, the
              commissioner shall make and enter an order revoking the
              person’s license to operate a motor vehicle in this state. . . .


West Virginia Code § l7C-5A-1(c) (2008). Mr. Oakland contends that other relevant

sections of the Code make clear that the Legislature contemplated that an actual arrest for

driving under the influence of alcohol or drugs is a mandatory prerequisite to the issuance

of any order of suspension. See, e.g.: W. Va. Code § 17C-5-4(c) (addressing a secondary

chemical test “incidental to a lawful arrest” administered at the direction of the “arresting

law-enforcement officer”) and (g) (speaking to contingency when “arresting officer”

lacks training in administration of secondary chemical test); § 17C-5-7(a) (addressing

appellate review by the circuit court of OAH’s decision. The circuit court’s order notes
that Mr. Oakland raised other meritorious issues in favor of reversing OAH’s order in his
petition for review, which were characterized as “holding water,” but the court felt it
unnecessary to address them given that it believed that the reason for reversal stated in its
Order was sufficient standing alone.


                                             14

officer’s duties following “arrest” when the person “under arrest” refuses to submit to a

secondary chemical test); § 17C-5-8 (noting that blood, breath or urine sample results are

admissible if taken within two hours “from and after the time of arrest”); § 17C-5-9

(codifying right of person “lawfully arrested” to demand a chemical test of her or his

blood, breath or urine).



               However, we find Mr. Oakland’s argument misplaced. West Virginia Code

§ 17C-5A-2(f) (2010), the statute in effect on the date of the incident, makes it clear that

the following elements were a mandatory prerequisite to the OAH upholding an order of

suspension: (1) that there was a lawful “arrest” of the driver; or (2) that the driver “was

lawfully taken into custody for the purpose of administering a secondary test[.]”

(emphasis added).2 The record before us reveals that Officer Wilhelm stopped Mr.


2
    West Virginia Code § 17C-5A-2(f) (2010) provided that,

               (f) 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
(continued . . .)
                                            15

Oakland’s vehicle after he observed him roll through a stop sign. Mr. Oakland, who had

glassy eyes, then not only admitted to smoking marijuana, but failed two of the three field

sobriety tests administered to him.        Officer Wilhelm accordingly handcuffed Mr.

Oakland, placed him in his police cruiser, and transported him to the hospital for the

purpose of administering the blood test.



              Mr. Oakland contends that the Moundsville Police Department has

designated “breath” as its test of choice, and therefore, Officer Wilhelm, “the law-

enforcement officer” “employ[ed]” by that agency, was without authority to require Mr.

Oakland to submit to a blood test under threat of suspension of his license by hand-

editing the implied consent form, to take him into custody to do so, and that he otherwise

lacked any authority to engage in an ad hoc modification/designation of Moundsville’s


              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, or was lawfully taken into custody for the purpose
              of administering a secondary test; and (4) whether the tests, if
              any, were administered in accordance with the provisions of
              this article and article five of this chapter.


                                             16

designated secondary test. Mr. Oakland maintains that because the secondary chemical

test Wilhelm required Respondent to take was not a legal one, he cannot have been

lawfully been taken into custody for purposes of administering a secondary chemical test

within the meaning of W. Va. Code § 17C-5A-2(f). We disagree. There is nothing in our

statutory law that prevented Officer Wilhelm from administering a blood test to

determine if Mr. Oakland was impaired by marijuana. West Virginia Code § 17C-5-4

(2010) provides that

             (a) Any person who drives a motor vehicle in this state is
                 considered to have given his or her consent by the
                 operation of the motor vehicle to a preliminary breath
                 analysis and a secondary chemical test of either his or her
                 blood, breath or urine for the purpose of determining the
                 alcoholic content of his or her blood.


(Emphasis added). Pursuant to West Virginia Code § 17C-5-4, there was implied consent

to a secondary chemical test. For all these reasons, we conclude that Mr. Oakland was

lawfully taken into custody for purposes of administering a secondary test.



             Finally, the results of the blood test were never admitted during the

proceedings below. Pursuant to syllabus point 1 of Albrecht v. State, 173 W. Va. 268,

314 S.E.2d 859 (1984),

             [t]here are no provisions in either W. Va. Code, 17C-5-1
             (1981), et seq., or W. Va. Code, 17C-5A-1 (1981), et seq.,
             that require the administration of a chemical sobriety test in
             order to prove that a motorist was driving under the influence
             of alcohol or drugs for purposes of making an administrative
             revocation of his driver’s license.


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In view of the driving behavior of Mr. Oakland observed by Officer Wilhelm, including

the failure by Mr. Oakland to lawfully stop at a stop sign, Officer Wilhelm’s other

observations, the results of the field sobriety tests, and Mr. Oakland’s admitted use of an

illicit intoxicating substance, we conclude that the circuit court abused its discretion in

reversing the OAH.



                                           IV.


                                    CONCLUSION


              For the foregoing reasons, we reverse the June 15, 2013, order of the

Circuit Court of Marshall County and remand this matter for reinstatement of the

Commissioner’s order revoking Mr. Oakland’s license to operate a motor vehicle.

                                                               Reversed and Remanded.




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