IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2020 Term
FILED
February 18, 2020
released at 3:00 p.m.
No. 18-0785 EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
EVERETT FRAZIER,
COMMISSIONER, WEST VIRGINIA DIVISION OF MOTOR VEHICLES,
Respondent Below, Petitioner
v.
S.P.,
Petitioner Below, Respondent
_________________________________________________________
Appeal from the Circuit Court of Brooke County
The Honorable David J. Sims, Judge
Civil Action No. 17-AA-3
REVERSED AND REMANDED
_________________________________________________________
Submitted: January 14, 2020
Filed: February 18, 2020
Patrick Morrisey Joseph J. John
Attorney General John & Werner Law Offices, PLLC
Janet E. James Wheeling, West Virginia
Assistant Attorney General Attorney for Respondent
Charleston, West Virginia
Attorneys for Petitioner
JUSTICE JENKINS delivered the Opinion of the Court.
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 [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.” 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 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
i
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 Commission, 172
W. Va. 627, 309 S.E.2d 342 (1983).
4. “Since 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. Credibility determinations made by an administrative law judge are
similarly entitled to deference. Plenary review is conducted as to the conclusions of law
and application of law to the facts, which are reviewed de novo.” Syllabus point 1, in part,
Cahill v. Mercer County Board of Education, 208 W. Va. 177, 539 S.E.2d 437 (2000).
5. “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.” Syllabus point 2, Albrecht v. State, 173 W. Va.
268, 314 S.E.2d 859 (1984).
ii
Jenkins, Justice:
Petitioner Everett Frazier, Commissioner of the West Virginia Division of
Motor Vehicles (“DMV”),1 appeals the final order of the Circuit Court of Brooke County,
West Virginia, reversing the order of the Office of Administrative Hearings (“OAH”)
which revoked Respondent S.P.’s2 driver’s license for driving under the influence (“DUI”).
S.P. unsuccessfully challenged the revocation of her license with the OAH, and then
appealed to the Circuit Court of Brooke County. The circuit court found that the OAH’s
final order was contrary to the record, constituted an abuse of discretion, and was clearly
erroneous in light of substantial and reliable evidence that S.P. was not in violation of any
DUI law at the time she operated her vehicle. Having considered the briefs submitted on
appeal, the appendix record, the parties’ oral arguments, and the applicable legal authority,
we find that the OAH’s findings were not clearly wrong, and that the circuit court abused
its discretion in substituting its judgment for that of the fact finder below. Accordingly,
we reverse the circuit court’s final order and remand this case for reinstatement of the
administrative order revoking S.P.’s driver’s license.
1
Since the filing of this case, the DMV Commissioner has changed and the
Commissioner is now Everett Frazier. Accordingly, the Court has made the necessary
substitution of parties pursuant to Rule 41(c) of the West Virginia Rules of Appellate
Procedure.
2
It is this Court’s customary practice in cases involving sensitive facts to
refer to parties by their initials rather than by their given names. See In re Jeffrey R.L., 190
W. Va. 24, 26 n.1, 435 S.E.2d 162, 164 n.1 (1993).
1
I.
FACTUAL AND PROCEDURAL HISTORY
On July 6, 2013, two Wheeling Police Officers, Officer Sean Brantley and
Officer Matthew Hronek, were parked in separate cruisers in the Tim Horton’s parking lot
along National Road in Wheeling, West Virginia. On this day, eighteen-year-old S.P. was
operating a silver Honda Accord traveling south on Bethany Pike. At approximately 1:32
a.m., both officers witnessed S.P. go through the red light as she was making a left turn
onto National Road. Officer Brantley initiated a traffic stop in a nearby shopping plaza,
and Officer Hronek followed as backup. Once Officer Brantley approached the vehicle,
he identified S.P. as the driver of the vehicle, and observed an odor of alcohol in the car.
Based on his observations, Officer Brantley asked S.P. if she had consumed any alcohol
that evening. S.P. admitted that she had been at a party and had sipped on some alcohol.
Officer Brantley relayed this information to Officer Hronek, as he was on a DUI patrol.
Officer Hronek then approached the vehicle and observed that S.P. “had
glassy, bloodshot eyes and had the odor of alcohol emitting from her.” He also observed
that S.P.’s speech was nervous, mumbling, and low in volume. Officer Hronek then “asked
her to step out of the vehicle to perform field sobriety tests[,] and she complied.” He first
explained, and then performed, the horizontal gaze nystagmus (“HGN”) test. Officer
Hronek indicated in the DUI Information Sheet that S.P. had a “lack of smooth pursuit”
and a “distinct & sustained nystagmus at maximum deviation.” On the walk and turn test,
he noted an “improper turn,” and for the one-leg stand test, he noted that S.P. “sways while
2
balancing” and “puts foot down” – opining that she failed that test. Then, when S.P. was
asked to count aloud to the number 20, she approached the number 17, and “skipped ahead
and went straight from 17 to 20.”
Next, Officer Hronek administered the Alco-Sensor FST preliminary breath
test. The test showed that S.P. had a blood alcohol content of thirty thousandths of one per
cent (0.03), by weight, at 1:50 a.m. Based upon these observations, Officer Hronek had
reason to believe that S.P. was driving under the influence of alcohol, drugs, or controlled
substances. Officer Hronek arrested S.P. for driving under the influence.
After transporting S.P. to the Wheeling Police Department, she signed the
Implied Consent Statement, which specifies the penalties for refusing to submit to a
designated secondary chemical test and the fifteen-minute time limit for refusal. The
Intoximeter EC/IR II revealed a blood alcohol content of nineteen thousandths of one
percent (0.019), by weight, at 2:29 a.m. Officer Hronek then read S.P. the Miranda warning
at 2:45 a.m. During a post-arrest interview, S.P. advised Officer Hronek that she had
consumed “one red plastic cup of peach schnapps mixed with lemonade, Smirnoff
strawberry,” and “sampled other stuff.” She also admitted that she had smoked marijuana
2.5 to 3 hours earlier.
A criminal complaint was filed against S.P., charging her with DUI alcohol,
under twenty-one years of age, in violation of Wheeling Municipal Ordinance 333.01(h),
3
which states that if an individual under the age of twenty-one operates a vehicle 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, for a first offense under
this subsection is guilty of a misdemeanor.”3 S.P. filed a motion to dismiss the criminal
charge as a matter of law, and Municipal Court Judge Jeffrey Miller dismissed the case
with prejudice.4
The DMV entered its initial order of revocation for DUI on July 25, 2013.
S.P. timely requested a hearing from the OAH, and the hearing was held on November 8,
2013. S.P. appeared at the hearing, but did not present testimony. The hearing examiner
entered a final order on March 22, 2017, concluding that Officer Hronek lawfully arrested
S.P. for DUI and that the record contained sufficient evidence to show that S.P. operated a
motor vehicle while under the influence.
3
Wheeling Municipal Ordinance 333.01(h) corresponds with West Virginia
Code § 17C-5-2 (LexisNexis 2013).
4
Criminal charging documents have no effect on the administrative
revocation of a driver’s license. See Syl. pt. 4, in part, 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.”).
4
The OAH additionally concluded that,
as the testimony reflects, from the relatively low result of
[S.P.’s] preliminary breath test . . . Officer [Hronek] suspected
that [S.P.] was under the combined influence of alcohol and a
controlled substance or other drug. That being the case,
[Officer Hronek] was well within his authority to continue with
his investigation and question [S.P.].
It further found that even without a blood or urine test, the evidence adduced was sufficient
to prove that S.P. was driving a motor vehicle in this State while under the combined
influence of alcohol and a controlled substance so the order of revocation should be
affirmed.
S.P. appealed the OAH’s order affirming the revocation of her driver’s
license to the Circuit Court of Brooke County on April 3, 2017, and a hearing was held on
March 9, 2018. The circuit court entered its final order on August 8, 2018, finding that the
OAH clearly erred in weighing the facts and in applying the requisite law and legal
standards. In the circuit court’s final order, it found that Officer Brantley had reasonable,
articulable suspicion to initiate the traffic stop, but that S.P. did not engage in any driving
conduct that would lead to the conclusion that she was impaired. It went on to find that
there was no evidence that S.P. exhibited signs of intoxication through her movements or
speech at the time of the stop; she passed the walk and turn test; she, while wearing sandals,
had a score of two on the one-legged stand test, which is the minimum possible failing
score; she registered a 0.019 BAC on the secondary test; and while Officer Hronek testified
5
that she failed the HGN with a score of four decision points, according to the National
Highway Traffic Safety Administration (“NHTSHA”), a four on that test equates to a BAC
of 0.08 or higher. The circuit court held that due to the “clear inconsistency between the
HGN test score and [S.P.’s] BAC result, the HGN test result is fatally flawed and is not
competent evidence. Based upon the evidence submitted, [S.P.] did not conclusively fail
any of the three (3) field sobriety tests.” It further found that S.P. should have been released
at 2:29 a.m. when she registered a 0.019 BAC and that the OAH’s reliance on S.P.’s alleged
admission of marijuana use 2.5 to 3 hours prior to the stop was improper and misplaced.
The circuit court specifically observed that there was “no evidence that the alleged
marijuana use in any way impaired her ability to operate a motor vehicle.” It also pointed
out inconsistencies in the officers’ timelines of events.
By order entered August 8, 2018, the circuit court reversed the revocation,
and ruled that the OAH’s final order was contrary to the record, constituted an abuse of
discretion, and was clearly erroneous in light of substantial and reliable evidence to the
contrary. It held that there was no lawful evidence that S.P. was in violation of any DUI
law at the time she operated her vehicle so the revocation of her license must be overturned.
The circuit court restored and reinstated S.P.’s driver’s license. The DMV appeals the
circuit court’s August 8, 2018 order.
6
II.
STANDARD OF REVIEW
As set forth above, the DMV is appealing an order of the Circuit Court of
Brooke County reversing its revocation of S.P.’s driver’s license. This Court has
previously 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). Further, “[i]n 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, id.
Moreover, as this Court explained in Modi v. West
Virginia Bd. of Medicine, 195 W. Va. 230, 239, 465 S.E.2d
230, 239 (1995), “findings of fact made by an administrative
agency will not be disturbed on appeal unless such findings are
contrary to the evidence or based on a mistake of law. In other
words, the findings must be clearly wrong to warrant judicial
interference. . . . Accordingly, absent a mistake of law,
findings of fact by an administrative agency supported by
substantial evidence should not be disturbed on appeal.”
(citations omitted); see also Martin v. Randolph County Bd. of
Educ., 195 W. Va. 297, 304, 465 S.E.2d 399, 406 (1995)
(explaining 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”).
7
Lowe v. Cicchirillo, 223 W. Va. 175, 179, 672 S.E.2d 311, 315 (2008). With these
standards in mind, we now address the issue presented.
III.
DISCUSSION
On appeal to this Court, the DMV raises the sole issue of whether the circuit
court abused its discretion in failing to afford deference to the findings of fact made by
the OAH, and in substituting its judgment for that of the OAH in vacating the OAH’s
decision to revoke S.P.’s driver’s license. Accordingly, we find it necessary to examine
this Court’s guidance for circuit courts reviewing an administrative agency’s order:
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.”
Syl. pt. 2, Shepherdstown Volunteer Fire Dep’t v. State ex rel. State of W. Va. Human
Rights Comm’n, 172 W. Va. 627, 309 S.E.2d 342 (1983).
8
In the case sub judice, the circuit court reversed the OAH’s order revoking
S.P.’s driving privileges and based its reversal on the following West Virginia Code § 29A-
5-4(g) (LexisNexis 2014) factors: (1) the OAH’s final order was clearly wrong and
erroneous in view of the reliable, probative, and substantial evidence on the whole record
and constituted an abuse of discretion and (2) the DMV failed to meet its burden to prove
that S.P. was driving a motor vehicle while under the influence. 5 More specifically, the
circuit court concluded “as a matter of law that the Commissioner clearly erred in weighing
the facts and in applying the requisite law and legal standards required to reach her
conclusions.” S.P. agrees with the circuit court and contends that OAH’s final order was
not supported by the evidence.
The DMV argues that the circuit court abused its discretion in reversing the
OAH’s final order “by systematically discounting and dismissing the reasons for the stop
and the evidence of impairment, and giving undue weight to irrelevant and speculative
evidence.” The DMV further contends that the circuit court “substituted its judgment for
5
When an administrative hearing is held in which a person is accused of
driving under the influence of alcohol, controlled substances, or drugs, the OAH is required
to make the following findings: (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; (2) whether the person was lawfully placed under
arrest, or was lawfully taken into custody for the purpose of administering a secondary
chemical test; (3) whether the person committed an offense involving driving under the
influence of alcohol, controlled substances, or drugs; and (4) whether the tests, if any, were
administered in accordance with the provisions set forth in the West Virginia Code. See
W. Va. Code § 17C-5A-2(f) (2012 W. Va. Acts 605-06).
9
that of the fact finder and failed in its duty to determine whether there was a preponderance
of the evidence to support the findings and conclusions of the OAH.”
This Court previously has held that
[s]ince 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.
Credibility determinations made by an administrative law
judge are similarly entitled to deference. Plenary review is
conducted as to the conclusions of law and application of law
to the facts, which are reviewed de novo.
Syl. pt. 1, in part, Cahill v. Mercer Cty. Bd. of Educ., 208 W. Va. 177, 539 S.E.2d 437
(2000). “We must uphold any of the [Administrative Law Judge’s] ALJ’s factual findings
that are supported by substantial evidence, and we owe substantial deference to inferences
drawn from these facts. Further, the ALJ’s credibility determinations are binding unless
patently without basis in the record.” Martin v. Randolph Cty. Bd. of Educ., 195 W. Va.
297, 304, 465 S.E.2d 399, 406 (1995). When reviewing these cases,
[w]e cannot overlook the role that credibility places in factual
determinations, a matter reserved exclusively for the trier of
fact. We must defer to the ALJ’s credibility determinations
and inferences from the evidence, despite our perception of
other, more reasonable conclusions from the evidence. . . .
Whether or not the ALJ came to the best conclusion, however,
she was the right person to make the decision. An appellate
court may not set aside the factfinder’s resolution of a swearing
match unless one of the witnesses testified to something
physically impossible or inconsistent with contemporary
documents. . . . The ALJ is entitled to credit the testimony of
those it finds more likely to be correct.
10
Id. at 306, 465 S.E.2d at 408 (internal citations and quotations omitted).
Applying these standards to the present case, we agree with the DMV, and
find that the circuit court abused its discretion by failing to examine the totality of the
evidence, by failing to give deference to the findings of fact made by the OAH, and by
substituting its own judgment in contravention of our established standards of review.
When presented with testimony at the administrative hearing, the OAH examined the
evidence that prompted the DMV’s revocation of S.P.’s driver’s license. This evidence
included: (1) S.P.’s failure to obey the red traffic light; (2) Officer Hronek’s detection of
the odor of alcohol emitting from S.P. and her motor vehicle; (3) S.P.’s glassy and
bloodshot eyes; (4) S.P.’s mumbled voice; (5) S.P.’s failing score on the one-leg stand test
and the HGN test; (6) the preliminary breath test which showed a BAC of 0.03; (7) S.P.’s
admission to “sips of Parrot Bay”; (8) the results of the secondary chemical test showing a
BAC of 0.019; and (9) S.P.’s post-arrest admissions that she had smoked marijuana earlier
that evening and consumed “peach schnapps mixed with lemonade, one Smirnoff
strawberry, and some unidentified beverage.” All of this evidence was noted in the DUI
Information Sheet, which was completed by the arresting officer, Officer Hronek. Based
upon this evidence, the OAH found that the evidence presented was sufficient to support a
finding that S.P. had been driving under the influence.
While it is clear that the parties disagreed on how certain evidence should
have been weighed, it was the OAH that was tasked with being the finder of fact, not the
circuit court. “It is not our domain to replace the administrative law judge’s factual findings
11
with the conclusions this Court might have reached had it served as a fact-finding body and
an evaluator of the credibility of the witnesses.” Graham v. Putnam Cty. Bd. of Educ., 212
W. Va. 524, 531, 575 S.E.2d 134, 141 (2002). Here, the OAH did not make any adverse
credibility determinations regarding the officers who testified, yet the circuit court failed
to give deference to those credibility determinations, and proceeded to make implicit
adverse determinations in an effort to discredit the evidence.
In overturning the OAH’s decision, the circuit court found the testimony of
Officer Hronek to be unreliable. The circuit court noted that he “was working on the date
in question on a DUI grant, specifically looking for DUI arrests, and admitted to receiving
monetary, or in kind, incentives for DUI arrests.”6 In a further effort to attack Officer
Hronek’s credibility, the circuit court noted, in a footnote, “[t]he fact that law enforcement
officers receive anything of value beyond their standard compensation for making DUI
arrests (or any arrest for that matter) is highly concerning. Such a practice is likely to raise
questions about the objectivity of the arresting officer.” However, in making its decision
to uphold the revocation of S.P.’s license, the OAH relied on the testimonies of both Officer
Brantley and Officer Hronek, and found both of them to be credible witnesses.
6
Officer Hronek testified that through the West Virginia Life Saver’s
Program, officers sometimes receive items for DUI arrests. He further noted that he has
received “two coffee mugs, some pens, a C organizer, small items like that.”
12
This Court has recognized that
[w]e cannot overlook the role that credibility places in factual
determinations, a matter reserved exclusively for the trier of
fact. We must defer to the ALJ’s credibility determinations
and inferences from the evidence, despite our perception of
other, more reasonable conclusions from the evidence. Board
of Education of the County of Mercer v. Wirt, 192 W. Va.
[568,] 579, 453 S.E.2d [402,] 413 [1994] (“[i]ndeed, if the
lower tribunal’s conclusion is plausible when reviewing the
evidence in its entirety, the appellate court may not reverse
even if it would have weighed the evidence differently if it had
been the trier of fact”).
Martin v. Randolph Cty. Bd. of Educ., 195 W. Va. 297, 306, 465 S.E.2d 399, 408 (1995).
Under the facts and evidence presented, we find that there was substantial
evidence presented to support both the factual findings and the credibility determinations
of the OAH. The OAH found Officer Hronek’s testimony regarding the field sobriety tests,
and his personal observations of S.P. to be credible. Both parties had an opportunity to
question Officer Hronek, and he was extensively cross-examined by S.P.’s counsel.
Moreover, in failing to give deference to the majority of the findings
referenced-above, the circuit court focused its attention on the unmarked boxes in the DUI
Information Sheet completed by Officer Hronek. Rather than acknowledge the improper
behavior of S.P. as denoted in the DUI Information Sheet and as reiterated by the OAH’s
findings of fact, the circuit court chose to fixate on the behavior and actions that were not
indicative of impairment. For example, in the circuit court’s order, under its findings of
fact, the court observed that “Officer Hronek did not mark ‘Unsteady’, ‘Staggers’, ‘Needs
13
Help’ or ‘Falls Down.’” However, the circuit court’s order failed to mention that under
the same section of the DUI Information Sheet, Officer Hronek did find “Odor of Alcoholic
Beverage on Subject’s Breath”; noted S.P.’s speech as “normal, nervous, mumbling, low
in volume,” her attitude as “nervous,” and her eyes as “bloodshot, glassy”; and noted
admissions or statements as “sips of Parrot bay – had consumed prior to driving.”
Moreover, the circuit court failed to mention the first breathalyzer test results from the
scene of the arrest—a BAC of 0.03. Instead, the circuit court merely relied on the
secondary chemical test—which showed a BAC of 0.019—to establish that S.P. was not
in violation of the law.
The circuit court was correct in denoting that a BAC of 0.019 is not a
violation of the law as it is below the required level of 0.020 to constitute a violation of
City of Wheeling Ordinance 333.01 or West Virginia Code § 17C-5-2 (LexisNexis 2013).
However, a BAC of 0.02 is not needed to find evidence of DUI for purposes of a DMV
driver’s license revocation. As this Court held in Syllabus point 1 of Albrecht v. State, 173
W. Va. 268, 314 S.E.2d 859 (1984):
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.
The Albrecht Court further went on to hold that,
[w]here there is evidence reflecting that a driver was
operating a motor vehicle upon a public street or highway,
14
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, id. Ultimately, it is clear that the circuit court largely ignored the findings of fact
established by the OAH, and instead, chose to rely on its own interpretation of the evidence.
Furthermore, as we held in Syllabus point 4 of In re Queen, 196 W. Va. 442,
473 S.E.2d 483 (1996): “‘Substantial evidence’ requires more than a mere scintilla. It is
such relevant evidence that a reasonable mind might accept as adequate to support a
conclusion. If an administrative agency’s factual finding is supported by substantial
evidence, it is conclusive.” Despite any factual dispute between the parties, the DUI
Information Sheet unequivocally illustrates that S.P. exhibited physical signs of
intoxication, failed two field sobriety tests, and had a BAC of 0.03 on the preliminary
breath test. All of this taken together, supports the OAH’s finding that S.P. drove a motor
vehicle while under the influence.7 To the extent that the parties disagree on the weight of
7
The circuit court also contends in its order that the OAH’s reliance on S.P.’s
admission of marijuana use was improper and misplaced. The circuit court noted that there
was “no evidence that [S.P.’s] alleged marijuana use in any way impaired her ability to
operate a motor vehicle.” We find that the findings of fact put forth by the OAH are
sufficient to establish by a preponderance of the evidence that S.P. had been driving under
the influence of alcohol, controlled substances, or drugs. The fact that S.P. did not make
an admission of marijuana use until after her arrest does not negate Officer Hronek’s belief
that, based on his physical observations of S.P. at the scene, he believed she was under the
influence of something besides alcohol. Furthermore, even if we disregard the post-arrest
admission of marijuana use, there is still enough evidence to support the findings of the
OAH that S.P. was driving under the influence for the purpose of revoking a driver’s
license. See Syl. pt. 2, Albrecht v. State, 173 W. Va. 268, 314 S.E.2d 859 (1984).
15
the evidence, or the credibility of the witness testimony, these are questions within the
scope of the trier of fact—the OAH. These credibility assessments and findings of fact are
entitled to deference by the circuit court, and they must not be reassessed unless clear error
has been found. Here, the OAH’s detailed final order has been examined, and it is evident
that the circuit court abused its discretion when it substituted its own view of the evidence
for that of the OAH.
IV.
CONCLUSION
For the reasons set forth above, the August 8, 2018 order of the Circuit Court
of Brooke County is reversed, and this case is remanded for the entry of an order reinstating
the DMV’s order of revocation.
Reversed and Remanded.
16