The opinion
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Patricia S. Reed, Commissioner of the
West Virginia Division of Motor Vehicles, FILED
Respondent Below, Petitioner June 17, 2016
RORY L. PERRY II, CLERK
vs) No. 15-0313 (Monongalia County 12-AA-1) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Charles Lee Hussing,
Petitioner Below, Respondent
MEMORANDUM DECISION
Petitioner Patricia S. Reed, Commissioner of the West Virginia Department of Motor
Vehicles, (“DMV”), by counsel Janet E. James, appeals the March 9, 2015, order of the Circuit
Court of Monongalia County that reversed the November 13, 2012, order of the Office of
Administrative Hearings (“OAH”). The OAH’s November 13, 2012, order affirmed the DMV’s
revocation of Respondent Charles Lee Hussing’s driver’s license for driving under the influence
of alcohol, controlled substances, or drugs (“DUI”). Respondent, by counsel S. Sean Murphy,
filed a response in support of the circuit court’s order. In this appeal, the DMV contends that the
circuit court erred in finding that there was no reasonable suspicion for the stop of respondent’s
vehicle; that respondent was not given a copy of the implied consent statement; and that
respondent did not refuse to submit to the designated secondary chemical test.
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 finds that the circuit court was
clearly wrong in its decision. For these reasons, a memorandum decision reversing the circuit
court’s order is appropriate under Rule 21(d) of the Rules of Appellate Procedure.
On July 14, 2011, a commercial vehicle operated by respondent was stopped by
Patrolman Kenneth Murphy (“Officer Murphy”) of the Morgantown Police Department.1 Officer
Murphy stopped the vehicle after he observed it straddle the center line, drive on the center line,
and nearly strike another vehicle. At the vehicle stop, Officer Murphy observed that respondent’s
gait was unsteady (when exiting the vehicle and while standing); that respondent’s eyes were
bloodshot, red, and glassy; and that respondent’s speech was slurred. Officer Murphy
administered a series of field sobriety tests to respondent, including the horizontal gaze
nystagmus (“HGN”) test, the walk and turn test, and the one leg stand test. Respondent failed the
one leg stand and HGN tests, was placed under arrest, and transported to the police station.
1
At all times relevant hereto, respondent was licensed and qualified to operate Class “B”
commercial motor vehicles in the State of West Virginia.
1
While at the police station, Officer Murphy read respondent the implied consent
statement,2 provided him with a copy of the same, and asked respondent if he would agree to
submit to a secondary chemical test of the breath. Respondent answered that he was unsure
whether he wanted to submit to the secondary chemical test. Fifteen minutes later, the officer
again asked respondent to submit to a secondary chemical test of the breath, to which respondent
stated that he was still not sure whether he wanted to take the test. Officer Murphy then began
the process to ready the Intoximeter (the machine by which he would conduct the secondary
chemical test of respondent’s breath). When the time came for respondent to provide a breath
sample, he refused. Officer Murphy then obtained a warrant for a sample of respondent’s blood,
and respondent was transported to Ruby Memorial Hospital where his blood was drawn.
Respondent’s privilege to drive was revoked and the disqualification of his commercial
driving privilege was completed by the DMV’s Order of Revocation dated August 12, 2011. An
administrative hearing was held on January 19, 2012, before the OAH. At the administrative
hearing, petitioner’s records were admitted into evidence, and Officer Murphy testified.
Respondent did not testify. By decision dated November 13, 2012, the OAH affirmed the
revocation of respondent’s driver’s license (including his commercial driving privileges) for DUI
and his refusal to submit to the secondary chemical test.
Respondent appealed the OAH’s decision to the circuit court. A hearing was held on
respondent’s appeal and, on March 9, 2015, the circuit court entered its order granting
respondent’s petition for appeal and reversing the OAH’s November 13, 2012, order. In its order,
the circuit court found there was no reasonable suspicion for the stop of respondent’s vehicle.
Further, the circuit court found that Officer Murphy did not provide respondent with the implied
consent statement, such that respondent could not be said to have refused the secondary chemical
testing of his breath. It is from the March 9, 2015, order that petitioner now appeals.
This Court has previously established the standards for our review of a circuit court’s
order deciding an administrative appeal:
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). Syllabus point two of
Muscatell provides: “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.” With these standards in mind, we consider the parties’ arguments.
2
The implied consent statement is a written document containing the penalties for
refusing to submit to a designated secondary chemical test.
2
In its petition for appeal, petitioner asserts two assignments of error. First, it alleges that
the circuit court erred in finding that there was no reasonable suspicion for the stop of
respondent’s vehicle. Second, it contends that the circuit court erred in finding that respondent
was not given a copy of the implied consent statement and that he did not refuse the designated
secondary chemical test.
As to petitioner’s first assignment of error, this Court has long held that “[p]olice officers
may stop a vehicle to investigate if they have an articulable reasonable suspicion that the vehicle
is subject to seizure or a person in the vehicle has committed, is committing, or is about to
commit a crime.” Syl. Pt. 1, in part, State v. Stuart, 192 W.Va. 428, 452 S.E.2d 886 (1994).
“When evaluating whether or not particular facts establish reasonable suspicion, one must
examine the totality of the circumstances, which includes both the quantity and quality of the
information known by the police.” Id. at 430, 452 S.E.2d 888. In Navarette v. California, 134
S.Ct. 1683 (2014), the United States Supreme Court stated that whether a police officer had an
articulable reasonable suspicion to conduct an investigatory stop depends on “the factual and
practical considerations of everyday life on which reasonable and prudent men, not legal
technicians, act.” Id. at 1690 (internal quotation and citation omitted). See Dale v. Ciccone, 233
W.Va. 652, 760 S.E.2d 466 (2014).
In the instant case, the circuit court determined that “[w]ithout some elaboration on the
officer’s testimony that [respondent] was driving erratically or that he was legally stopped, it is
difficult to ascertain how [Officer Murphy] inferred that [respondent] was in violation of the
law.” We disagree. We have previously recognized that “credibility determinations by the finder
of fact in an administrative proceeding are ‘binding unless patently without basis in the record.’”
Webb v. W.Va. Bd. of Med., 212 W.Va. 149, 156, 569 S.E.2d 225, 232 (2002). When applying
this standard to the record herein, we have no reason to second guess the credibility
determinations made by the OAH regarding the testimony of Officer Murphy. Officer Murphy
testified before the OAH that “[w]hile following [respondent’s] vehicle, I observed it go left of
center, drive on the center lane, and . . . [w]hile going around this right-hand turn, [respondent]
went on the opposite side, the oncoming traffic side, almost striking a vehicle.”3 As such, we find
that the circuit court abused its discretion in finding that there was no reasonable suspicion for
the stop of respondent’s vehicle.
In its second assignment of error, petitioner contends that the circuit court erred in
finding that respondent was not given a copy of the implied consent statement and, thus, he could
not be determined to have refused the secondary chemical test of the breath. As we noted in
Jordan v. Roberts, 161 W.Va. 750, 246 S.E.2d 259 (1978),
3
Respondent’s erratic driving, as described by Officer Murphy during his OAH
testimony, is a misdemeanor pursuant to West Virginia Code § 17C-8-2, which provides, in
pertinent part, that “(a) . . . a right turn shall be made as close as practicable to the right-hand
curb or edge of the roadway.”
3
[u]nder the provisions of W.Va. Code § 17C-5A-1, commonly known as
the implied consent law, a person is deemed to give his consent to a chemical test
to determine the content of alcohol in his body by operating a motor vehicle on a
public highway in this State. The test may only be administered as an incident to a
lawful arrest by a law enforcement officer who has reasonable grounds to believe
the driver was driving on a public highway while under the influence of
intoxicating liquor.
161 W.Va. at 751, 246 S.E.2d at 260.
In Jordan, we further held that
[w]here the request is made to take the ultimately designated test under the
implied consent law and the licensee by his conduct or words manifests a
reluctance to take the test or qualifies his assent to take the test on factors that are
extraneous to the procedures surrounding the test, proof of refusal is sufficiently
established.
161 W.Va. at 751, 246 S.E.2d at 260.
Respondent argues that the record is devoid of any documentation to support Officer
Murphy’s testimony that he advised respondent that refusal to take the secondary chemical test
would result in a suspension of his license. We disagree. To the contrary, our review of the
record reveals that there is sufficient evidence to establish respondent’s failure to submit to a
secondary chemical test of the breath. Through his own testimony before the OAH, Officer
Murphy advised that he read respondent the implied consent statement and provided respondent
with a copy of the same. Further, the record reflects that respondent ultimately refused to submit
to the designated testing. Accordingly, we find that the circuit court abused its discretion in
finding otherwise. We thus agree with the OAH that there is sufficient evidence to warrant the
conclusion that respondent refused to submit to a secondary chemical test of the breath.
For the foregoing reasons, we reverse the circuit court’s March 9, 2015, order.
Reversed.
ISSUED: June 17, 2016
CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II
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