IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2013 Term
FILED
October 17, 2013
released at 3:00 p.m.
No. 12-1273 RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STEVEN O. DALE, ACTING COMMISSIONER,
WEST VIRGINIA DIVISION OF MOTOR VEHICLES,
Respondent Below, Petitioner
V.
AMANDA DINGESS,
Petitioner Below, Respondent
Appeal from the Circuit Court of Boone County
Honorable William S. Thompson, Judge
Civil Action No. 11-C-218
REVERSED AND REMANDED
Submitted: October 2, 2013
Filed: October 17, 2013
Patrick Morrisey Matthew M. Hatfield
Attorney General Hatfield & Hatfield, PLLC
Elaine L. Skorich Madison, West Virginia
Assistant Attorney General Attorney for the Respondent
Charleston, West Virginia
Attorneys for the 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.”
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. “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
i
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.’” Syllabus point 2, Shepherdstown Volunteer Fire
Department v. State ex rel. State of West Virginia Human Rights, 172 W. Va. 627, 309
S.E.2d 342 (1983).
4. “[A] reviewing court is obligated to give deference to factual findings
rendered by an administrative law judge, a circuit court is not permitted to substitute its
judgment for that of the hearing examiner with regard to factual determinations.” Syllabus
point 2, in part, Cahill v. Mercer County Board of Education, 208 W. Va. 177, 539 S.E.2d
437 (2000).
5. “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.” Syllabus point 3, Carte v.
Cline, 200 W. Va. 162, 488 S.E.2d 437 (1997).
6. “Where there is evidence reflecting that a driver was operating a motor
vehicle upon a public street or highway, exhibited symptoms of intoxication, and had
ii
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.” Syllabus point 2, Albrecht v. State, 173 W. Va. 268, 314 S.E.2d 859
(1984).
iii
Per Curiam:
The respondent below and petitioner herein, Steven O. Dale,1 Acting
Commissioner of the West Virginia Division of Motor Vehicles (“the DMV”), appeals from
an order by the Circuit Court of Boone County. The DMV had issued an order of revocation
for the driver’s license of the petitioner below and respondent herein, Amanda Dingess
(hereinafter “Ms. Dingess”), for driving under the influence of alcohol (hereinafter “DUI”).
The Office of Administrative Hearings (“OAH”) held an administrative hearing and, through
an October 18, 2011, order, upheld the DMV’s revocation for DUI. In its order entered
September 5, 2012, the circuit court reversed the order of revocation and reinstated the
driving privileges of Ms. Dingess. On appeal to this Court, the DMV argues that the circuit
court’s reversal of the OAH’s order was contrary to law. Specifically, the DMV argues that
the circuit court failed to afford proper deference to the rulings made during the underlying
administrative process and, further, that the lower court erred in its application and statement
of the law. Based upon the parties’ arguments, the appendix record designated for our
consideration, and the pertinent authorities, we reverse the circuit court’s reinstatement of
Ms. Dingess’s driving privileges. Further, the case is remanded for reentry of the DMV’s
revocation order.
1
Acting Commissioner, Steven O. Dale, replaced the former commissioner as
the named party. See W. Va. R. App. Proc. 41(c) (“When a public officer . . . ceases to hold
office, the action does not abate and his successor is automatically substituted as a
party. . . .”).
1
I.
FACTUAL AND PROCEDURAL HISTORY
The facts pertinent for consideration in this case began on August 14, 2010,
when Boone County Sheriff’s Deputy Hess responded to a 911 call reporting an accident
involving two vehicles at the Tudor’s Biscuit World in Danville. A Madison City Police
Officer also responded. Also present at the scene were Ms. Dingess, her companion, and the
operator of the other car allegedly involved in a vehicle accident.2
Ms. Dingess was described as loud and disruptive at the scene, and she refused
to answer the officers’ questions. Due to her behavior, Ms. Dingess was arrested for
“obstructing an officer.” Deputy Hess subjected Ms. Dingess to three field sobriety tests:
the horizontal gaze nystagmus test, the walk and turn test, and the one-leg stand test. Ms.
Dingess failed all three.3 Thereafter, Ms. Dingess was transported to the police station4 and
2
There was no damage to either car and Deputy Hess did not write an accident
report.
3
Ms. Dingess later claimed that she failed the one-leg stand test and the walk
and turn test because she was suffering with a broken toe. However, prior to administering
the tests, Deputy Hess questioned Ms. Dingess as to any factors that may interfere with her
ability to follow the testing guidelines. Ms. Dingess answered that no such factors existed.
4
The record indicates that Ms. Dingess attempted to take a secondary chemical
test while at the station; however, her asthma prevented her from doing so. We note that a
secondary chemical test is not required to administratively revoke a person’s driving
privileges. See Coll v. Cline, 202 W. Va. 599, 609-10, 505 S.E.2d 662, 672-73 (1998)
(“Although the results of the secondary chemical test are not a jurisdictional prerequisite . . . .
where a secondary chemical test has been conducted, the arresting officer is unequivocally
(continued...)
2
arrested for DUI.5
`
On September 8, 2010, the DMV sent Ms. Dingess an Order of Revocation for
DUI and for refusing to take a secondary chemical test. Ms. Dingess timely filed a request
for an administrative hearing. At the February 17, 2011, administrative hearing, Deputy Hess
testified that he had not seen Ms. Dingess behind the wheel of a car on the night of her arrest,
but that she had admitted to him that she had been driving. Deputy Hess also testified that
the companion who was with Ms. Dingess told Deputy Hess that he was not driving that
evening. Finally, Deputy Hess testified that Ms. Dingess was unsteady on her feet, staggered
as she walked, her speech was slurred, her breath smelled of alcohol, and her eyes were
bloodshot and glassy. During the same hearing, Ms. Dingess testified that, on the night of her
arrest, she had not driven a car and was not under the influence of alcohol.
4
(...continued)
required to submit the results of that test[.]”).
5
The DUI charge ultimately was dismissed by the Boone County Magistrate
Court. However, we recently reiterated in Syllabus point 4 of Miller v. Epling, 229 W. Va.
574, 729 S.E.2d 896 (2012):
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.
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
The OAH entered its final order on October 18, 2011. The order upheld the
DMV’s revocation of Ms. Dingess’s license on the ground that the DMV had established, by
a preponderance of the evidence, that Ms. Dingess had operated a vehicle under the influence
of alcohol at the time of the accident. However, the OAH reversed the DMV’s finding that
Ms. Dingess had refused to submit to a secondary chemical test.6 Ms. Dingess timely
appealed the OAH’s order to the circuit court.
By order entered September 5, 2012, the circuit court reversed the order of the
OAH based on its finding that Ms. Dingess testified that she had not driven the car; that
Deputy Hess admitted that he did not see Ms. Dingess drive the car, and, finally, that Ms.
Dingess’s companion was present and could have been driving the car.7 The DMV filed this
appeal.
II.
STANDARD OF REVIEW
In this case, the DMV appeals the circuit court’s reversal of the OAH’s
administrative revocation of Ms. Dingess’s driver’s license. The standard of review has been
articulated as follows:
6
See note 4, infra.
7
The circuit court came to this conclusion despite the fact that Deputy Hess
reported that the companion denied that he had driven the car.
4
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). Moreover, because
the circuit court altered the decision by the underlying agency, we are guided by the principle
that “[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, id. Mindful of these applicable standards, we now
consider the substantive issues raised herein.
III.
DISCUSSION
On appeal, the DMV argues that the circuit court erred in reversing the OAH
order that revoked Ms. Dingess’s driver’s license.8 Further, the DMV contends that the
8
Specifically, the DMV sets forth that the circuit court erred in the following
ways: finding relevant that the car accident occurred on private property, affording
significance to the dismissal of Ms. Dingess’s criminal DUI charge, giving preference to
testimonial evidence over documentary evidence, excluding the evidence of Ms. Dingess’s
performance on the field sobriety tests, substituting its judgment for that of the hearing
examiner on credibility issues, failing to set forth the manner in which the OAH violated
W. Va. Code § 29A-5-4(g) (1998) (Repl. Vol. 2012), misstating the law in its final order, and
relying on only a portion of the arresting officer’s testimony.
5
revocation order should be reinstated. Conversely, Ms. Dingess asserts that the circuit
court’s reinstatement of her driving privileges should be affirmed. While the DMV sets forth
several assignments of error, we determine that the evidence was sufficient for an
administrative license revocation and, accordingly, we decline to address the assignments of
error in a piecemeal fashion.
In this case, the DMV and the OAH determined that Ms. Dingess drove a
motor vehicle while under the influence of alcohol. A guiding principle has been that “[w]e
must uphold any of the [administrative agency’s] factual findings that are supported by
substantial evidence, and we owe substantial deference to inferences drawn from these
facts[.]” Webb v. West Virginia Bd. of Medicine, 212 W. Va. 149, 156, 569 S.E.2d 225, 232
(2002) (per curiam) (quoting Martin v. Randolph County Bd. of Educ., 195 W. Va. 297, 304,
465 S.E.2d 399, 406 (1995)). See also Syl. pt. 2, Shepherdstown Volunteer Fire Dept. v.
State ex rel. State of West Virginia Human Rights, 172 W. Va. 627, 309 S.E.2d 342 (1983)
(“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
6
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.’”).
On the night of the arrest, Deputy Hess made a record on a “DUI Information
Sheet,” wherein he transcribed that Ms. Dingess admitted that, “I was driving but I didn’t hit
the truck.” Despite this admission at the scene of the incident, the circuit court gave greater
weight to Ms. Dingess’s testimony at the administrative hearing that she was not driving on
the night in question and that she was not intoxicated. In Groves v. Cicchirillo, 225 W. Va.
474, 481, 694 S.E.2d 639, 646 (2010) (per curiam), this Court stated that there is no
preference for testimonial evidence in driver’s license revocation proceedings. Therefore,
the circuit court was incorrect when it elevated Ms. Dingess’s hearing testimony over the
testimony of Deputy Hess that was in agreement with his contemporaneous documentary
evidence recorded on the DUI Information Sheet.
Another factual determination involves the three field sobriety tests. Prior to
conducting the tests, Deputy Hess asked Ms. Dingess if she had any injuries that would affect
her performance of the tests, to which she replied, “No.” Thus, even though she had an
opportunity to mention a broken toe, she did not. Moreover, Ms. Dingess failed to present
any evidence at the administrative hearing in support of her broken-toe claim. Despite these
7
facts, the circuit court substituted its judgment for that of the OAH and found that Ms.
Dingess’s broken toe would have affected her performance on all three field sobriety tests,
including the horizontal nystagmus gaze (“HGN”) test. In regard to the HGN test, the DMV
argues that a broken toe would not have affected its results. Moreover, the OAH (1) found
that Deputy Hess properly assessed Ms. Dingess’s eyes prior to the HGN test, (2) did not find
that the Deputy erred in administering the test, and (3) ruled that Ms. Dingess failed the test.
As this Court has stated, “a reviewing court is obligated to give deference to
factual findings rendered by an administrative law judge, a circuit court is not permitted to
substitute its judgment for that of the hearing examiner with regard to factual
determinations.” Syl. pt. 2, in part, Cahill v. Mercer County Bd. of Educ., 208 W. Va. 177,
539 S.E.2d 437 (2000). In the present case, the hearing examiner listened to Ms. Dingess’s
and Deputy Hess’s conflicting accounts of the events, observed their demeanor, and made
a determination that the Deputy was more credible. Specifically, the OAH found that
“respondent offered no credible rebuttal testimony regarding the indicia of physical
symptoms of intoxication observed by the investigating Officer and recorded on the . . . DUI
Information Sheet.” Lastly, we note that
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.
8
Syl. pt. 3, Carte v. Cline, 200 W. Va. 162, 488 S.E.2d 437 (1997). Significantly, in the
present case, Deputy Hess testified and the “DUI Information Sheet” showed that Ms.
Dingess admitted that she was driving that evening but had not hit another vehicle. Further,
Ms. Dingess’s behavior at the scene was of a person who was irate, to the level of being
arrested for obstructing an officer. Also, she was staggering, unsteady, smelled of alcohol,
had slurred speech, and glassy, bloodshot eyes. She also failed the HGN. Moreover, Ms.
Dingess admitted to consuming an alcoholic beverage prior to her encounter with Deputy
Hess, and she was with her vehicle when the Deputy arrived on the scene.
The OAH, in its final order, relied on Syllabus point 2 of Albrecht v. State, 173
W. Va. 268, 314 S.E.2d 859 (1984), which states:
Where 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.
Yet, the circuit court reversed the hearing examiner’s credibility findings, apparently by
giving significant weight to Ms. Dingess’s testimony that she was not driving and was not
under the influence when she was arrested, despite the evidence otherwise. The circuit court
improperly substituted its judgment for that of the hearing examiner. The evidence was
sufficient to warrant the administrative license revocation of Ms. Dingess.
9
IV.
CONCLUSION
For the foregoing reasons, the circuit court’s reversal of the revocation of Ms.
Dingess’s license is in error and, accordingly, is reversed. This case is remanded for the
circuit court to reinstate the order revoking Ms. Dingess’s license to drive.
Reversed and Remanded.
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