                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS

Jason F. Uhl,                                                                     FILED
Respondent Below, Petitioner                                                  January 9, 2015
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 14-0259 (Kanawha County 13-AA-116)                                     OF WEST VIRGINIA


Patricia S. Reed, Commissioner of the
West Virginia Division of Motor Vehicles,
Petitioner Below, Respondent


                              MEMORANDUM DECISION
        Petitioner Jason F. Uhl, by counsel Troy Giatras and Matthew Stonestreet, appeals the
order of the Circuit Court of Kanawha County entered on February 6, 2014, which reversed the
order of the Office of Administrative Hearings. The Office of Administrative Hearings re-
instated petitioner’s driver’s license because the Division of Motor Vehicles failed to meet the
requisite burden of proof. Respondent, West Virginia Division of Motor Vehicles, by counsel,
Janet James, filed a response and petitioner filed a reply.

        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 October 15, 2010, at 11:10 p.m., Trooper First Class R.A. Phillips of the West
Virginia Police Winfield Detachment “Trooper Phillips” was on patrol on Interstate 64 in
Charleston, West Virginia, when he observed a white Jeep Cherokee traveling seventy miles per
hour in a fifty mile per hour zone. Trooper Phillips initiated a traffic stop on the vehicle, and
made contact with the driver of the vehicle, Robert Lee Morris, petitioner, Jason Uhl (who was
the front seat passenger), and Randy Spurlock (the rear passenger). Trooper Phillips spoke to Mr.
Morris and petitioner, noted an odor of an alcoholic beverage emanating from the interior of the
vehicle, and observed beer cans inside the vehicle. Mr. Morris was ultimately placed under
arrest for driving under the influence of alcohol. Petitioner was arrested for knowingly permitting
Mr. Morris to drive the vehicle while Mr. Morris was under the influence of alcohol in violation
of West Virginia Code § 17C-5-2(g). The offense of knowingly permitting is defined as,

       Any person who:
       (1) Knowingly permits his or her vehicle to be driven in this state by any other
       person who:
       (A) Is under the influence of alcohol;

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       (B) Is under the influence of any controlled substance;
       (C) Is under the influence of any other drug;
       (D) Is under the combined influence of alcohol and any controlled substance or
       any other drug;
       (E) Has an alcohol concentration in his or her blood of eight hundredths of one
       percent or more, by weight;

       (2) Is guilty of a misdemeanor and, upon conviction thereof, shall be confined in
       jail for not more than six months and shall be fined not less than one hundred
       dollars nor more than five hundred dollars.

        On November 16, 2010, respondent, the West Virginia Division of Motor Vehicles,
issued an Order of Revocation to petitioner advising him that his privilege to drive in West
Virginia was revoked for “knowingly permitting [his] vehicle to be driven in this state by another
person who was under the influence of alcohol, controlled substances or drugs.” Petitioner
timely requested a hearing. An administrative hearing was held October 25, 2012.

        At the administrative hearing Trooper Phillips testified that upon speaking with the
driver, Mr. Morris, he detected an odor of alcoholic beverage coming from Mr. Morris’s person,
and that Mr. Morris had slurred speech and bloodshot eyes. Mr. Morris stated he had consumed
six beers that evening. Trooper Phillips testified further that he administered three field sobriety
tests to Mr. Morris. Based upon Mr. Morris’s poor performance on the tests, Trooper Phillips
administered a preliminary breath test to Mr. Morris, which he failed. Mr. Morris then gave
Trooper Phillips permission to search the vehicle, and inside, Trooper Phillips found eight beers,
four of which were partially full. Two of the open beers were in the front seat console where
petitioner and Mr. Morris were seated. All of the beers were cold to the touch when Trooper
Phillips discovered them.

        Petitioner testified that he traveled to the dog track with Mr. Morris and Mr. Spurlock but
the trio separated once inside. The trio met again at the end of the evening, Mr. Morris offered to
drive petitioner’s vehicle. Petitioner admitted that he was drinking that evening and that he could
not recall seeing a drink in Mr. Morris’ hand while at the casino. Petitioner testified that he had
no idea how much alcohol Mr. Morris consumed prior to giving him the keys to his vehicle.

        On August 13, 2013, the Office of Administrative Hearings (OAH) entered an order
rescinding the respondent’s Order of Revocation for “knowingly permitting” because respondent
failed to show that petitioner knew that Mr. Morris was intoxicated. Respondent appealed that
order to the Circuit Court of Kanawha County. The parties submitted briefs to the circuit court,
and by order entered February 6, 2014, the circuit court reversed the order of the hearing
examiner, concluding as follows:

               The OAH committed clear error in reversing the revocation of
       [r]espondent’s license for knowingly permitting Mr. Morris to drive his car while
       Mr. Morris was under the influence of alcohol. Respondent was at the casino with
       Mr. Morris and another friend, all three of whom were drinking at the casino, and
       all three of whom were in respondent’s car after leaving the casino. There was

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       beer found in the car, including two open cans in the front console of the vehicle,
       where Mr. Morris and [r]espondent were located. There was no designated driver,
       indicating that all of the men were drinking that night. Yet the OAH ignored these
       circumstances, and relied solely on the [r]espondent’s self-serving denial that he
       knew Mr. Morris was drunk.

 Petitioner appeals the order of the Circuit Court of Kanawha County to this Court.

       The standard a circuit court is to apply when reviewing an administrative agency order
was set forth in syllabus point two of Shepherdstown Volunteer Fire Dept. v. State ex rel. State of
West Virginia Human Rights Com’n, 172 W.Va. 627, 309 S.E.2d 342 (1983), as follows:

       Upon judicial review of a contested case under the West Virginia Administrative
       Procedure Act, Chapter 29A, Article 5, Section 4(g), the circuit court may affirm
       the order or decision of the agency or remand the case for further proceedings.
       The circuit court shall reverse, vacate or modify the order or decision of the
       agency if the substantial rights of the petitioner or petitioners have been
       prejudiced because the administrative findings, inferences, conclusions, decisions
       or order are: “(1) In violation of constitutional or statutory provisions; or (2) In
       excess of the statutory authority or jurisdiction of the agency; or (3) Made upon
       unlawful procedures; or (4) Affected by other error of law; or (5) Clearly wrong
       in view of the reliable, probative and substantial evidence on the whole record; or
       (6) Arbitrary or capricious or characterized by abuse of discretion or clearly
       unwarranted exercise of discretion.”

       In the pending case, the circuit court reversed the order of the OAH on the ground that
the revocation was clearly wrong in view of the evidence. Our review of a circuit court’s
decision involving an administrative agency order proceeds under the standard announced in
Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996).

               “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 “‘evidentiary 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).” Syl. Pt. 2, Odum, 233 W.Va. at __, 760 S.E.2d at 416.

        Petitioner’s sole assignment of error alleges that the circuit court erred by altering the
meaning of West Virginia Code § 17C-5A-2(j), and effectively abolished the knowledge element
required for an individual to be guilty of knowingly permitting. Petitioner argues that the OAH
properly applied West Virginia Code § 17C-5A-2(j) in determining that respondent did not meet

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its evidentiary burden, and that the circuit court improperly applied a “should have known”
standard to the matter at hand.

         The circuit court held that the OAH erred in concluding that petitioner was unaware that
Mr. Morris was under the influence of alcohol. Finding that the OAH misinterpreted and
misapplied West Virginia Code § 17C-5A-2(j), the circuit court held that, pursuant to that Code
section, the OAH erroneously found that petitioner “believed the driver was sober.” The circuit
court’s review of the testimony however, revealed that petitioner never stated that he believed
that Mr. Morris was sober. Rather, the respondent testified that “[Mr. Morris] looked fine to
me”, “[Mr. Morris] said he didn’t care to drive”; “he appeared okay to drive”; and he did not
appear intoxicated to [petitioner]. The circuit court further noted that, on cross-examination,
petitioner seemingly suffered “memory loss” after realizing he may incriminate Mr. Morris if he
testified to his intoxication.

       We agree with the circuit court. West Virginia Code § 17C-5A-2(j) provides, in part,

       “If the Office of Administrative Hearings finds by a preponderance of the
       evidence that . . . the person knowingly permitted the persons vehicle to be driven
       by another person who was under the influence of alcohol, controlled substances
       or drugs, or knowingly permitted the person’s vehicle to be driven by another
       person who had an alcohol concentration in his or her blood of eight hundredths
       of one percent or more, by weight the commissioner shall revoke the person’s
       license . . .”

        The OAH was clearly wrong to rely upon petitioner’s denials in spite of overwhelming
circumstantial evidence that petitioner knowingly permitted Mr. Morris to drive his vehicle while
under the influence of alcohol. Petitioner testified at the administrative hearing that he had gone
to the casino that night with friends “to have fun” and that the casino was giving away drinks that
evening, but that he did not recall seeing Mr. Morris consume any drinks, and could not recall
seeing a drink in Mr. Morris’ hand while at the casino. Although Mr. Morris admitted to having
consumed six or seven beers, petitioner could not recall smelling the odor of an alcoholic
beverage on Mr. Morris prior to driving away from the casino. Upon cross-examination,
petitioner was unable to answer regarding Mr. Morris sobriety, stating, “it’s been two years and
it’s kind of vague.”

        It is undisputed that petitioner was at the casino with Mr. Morris and another friend, all
three of whom were drinking, and all three of whom were in petitioner’s car after leaving the
casino. Open beer cans were found in the front console of the vehicle where petitioner and Mr.
Morris were sitting, and the cans were cool to the touch. The parties had not identified a
designated driver. It is also undisputed that Mr. Morris drove petitioner’s car with petitioner’s
permission and that Mr. Morris was under the influence of alcohol. This is not a situation where
the permission to drive was remote in time or place. Petitioner, his car, and Mr. Morris were all
in the same place for the entire evening. The evidence to support this finding is not negated by
the self-serving testimony of petitioner. There is substantial circumstantial evidence in the record
that petitioner was aware that Mr. Morris was consuming alcohol, and could be impaired.



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Therefore, the circuit court did not err in finding that the OAH’s order was clearly wrong in view
of the reliable, probative and substantial circumstantial evidence on the record.

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.

ISSUED: January 9, 2015

CONCURRED IN BY:

Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTED BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis




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