Everett Frazier, Commissioner, West Virginia Division of Motor Vehicles v. Jad H. Ramadan

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2023 Term FILED

_____________________ November 6, 2023

released at 3:00 p.m.

No. 22-0223 EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

_____________________ OF WEST VIRGINIA

EVERETT FRAZIER, Commissioner,

West Virginia Division of Motor Vehicles,

Respondent Below, Petitioner,

v.

JAD H. RAMADAN,

Petitioner Below, Respondent.

___________________________________________________________

Appeal from the Circuit Court of Monongalia County

The Honorable Phillip D. Gaujot, Judge

Civil Action No. 19-AA-3

REVERSED AND REMANDED

WITH DIRECTIONS

_________________________________________________________

Submitted: September 27, 2023

Filed: November 6, 2023

Patrick Morrisey, Esq. Charles C. Wise III, Esq.

Attorney General Jordan C. Maddy, Esq.

Elaine L. Skorich, Esq. Bowles Rice LLP

Assistant Attorney General Morgantown, West Virginia

Charleston, West Virginia Counsel for the Respondent

Counsel for the Petitioner

JUSTICE WOOTON delivered the Opinion of the Court.

SYLLABUS BY THE COURT

1. “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. W. Va. Hum. Rts. Comm’n, 172 W. Va. 627, 309 S.E.2d 342 (1983).

2. “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[(g)] 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).

i

3. “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.” Syl. Pt. 1, in part, Cahill

v. Mercer Cnty. Bd. of Educ., 208 W. Va. 177, 539 S.E.2d 437 (2000).

4. “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.” Syl. Pt. 2, Albrecht v. State, 173 W. Va. 268, 314

S.E.2d 859 (1984).

5. “A person is ‘under the influence’ if the person (1) consumed, used,

took, or ingested alcohol, controlled substances, or drugs and (2) the alcohol, controlled

substances, drugs, or any combination thereof impaired the person’s ability to operate a

motor vehicle with ordinary care.” Syl. Pt. 4, Casto v. Frazier, 248 W. Va. 554, 889 S.E.2d

276 (2023).

ii

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.” Syl. Pt. 2, Albrecht v. State, 173 W. Va. 268, 314 S.E.2d 859 (1984).

iii

WOOTON, Justice:

The petitioner Everett J. Frazier, Commissioner of the West Virginia

Division of Motor Vehicles (“DMV”), appeals the final order of the Circuit Court of

Monongalia County, West Virginia, which reversed the final order of the Office of

Administrative Hearings (“OAH”) entered on March 1, 2022, upholding the respondent

Jad H. Ramadan’s administrative driver’s license revocation for a period of five years for

driving under the influence (“DUI”). On appeal, the DMV argues that the court: 1) erred

as a matter of law by extending the presumptions contained in West Virginia Code section

17C-5-8(b)(l) (2021), a statute which applies solely to impairment by alcohol, to

impairment by controlled substances and/or drugs; 1 2) abused its discretion by substituting

We recently rejected this assigned error raised by the DMV in Casto v. Frazier,

1

248 W. Va. 554, 889 S.E.2d 276 (2023), as follows:

The OAH then discounted the results of Mr. Casto’s

secondary chemical test because it construed the secondary

chemical test statute as applying predominantly to tests

designed to detect alcohol and not to those identifying evidence

of drug use. See W. Va. Code § 17C-5-8. While this statute

provides specific percentages for the consideration of alcohol

evidence, it also lists the various drugs and controlled

substances for which a chemical analysis of the blood should

test. See W. Va. Code §§ 17C-5-8(d)(1) to -(10). Therefore, the

OAH should not have discounted Mr. Casto’s blood test results

solely based on this statute.

Casto, 248 S.E.2d at ___, 889 S.E.2d at 282. We decline to find any reversible error in

regard to this assigned error based on our prior resolution of this very issue in Casto. See

id.

1

its judgment for that of the fact finder below (the OAH) regarding the weight given to the

results of the standardized field sobriety tests; and 3) abused its discretion by substituting

its judgment for that of the fact finder below (the OAH) regarding the credibility of the

respondent’s expert witness. Based upon our review of the parties’ briefs and oral

arguments, the applicable law, the appendix record, and all other matters submitted before

the Court, we find the court erred in substituting its judgment for that of the OAH in regard

to the weight given to the field sobriety tests and the credibility of the respondent’s expert.

Accordingly, we reverse the court’s decision and remand this case to the court for entry of

an order reinstating the OAH’s order upholding the administrative revocation of the

respondent’s driver’s license.

I. Facts and Procedural Background

On July 9, 2015, during a heavy rainstorm, the respondent was driving his

vehicle in Morgantown, West Virginia, when he collided with the rear end of the vehicle

in front of him. Detective John Wilhelm, an off-duty sheriff’s deputy with the Monongalia

County Sheriff’s Department, testified at the OAH hearing that he was travelling home

when he came upon the accident and stopped his vehicle behind the two vehicles involved

in the crash. He was the first law-enforcement officer to arrive on the scene of the accident

and observed the respondent staggering. The detective asked the respondent to lean on the

detective’s car so that the respondent wouldn’t fall. Det. Wilhelm testified that he spoke

with the respondent and noted that the respondent’s speech was slurred. The detective also

stated that he noticed the respondent had mud on his clothing; the respondent told him that

2

he had fallen down a couple of times. The detective testified that he believed that the

respondent was impaired.

Two West Virginia State Police officers responded to the accident scene –

then-Trooper C.M. Griffith, who was the investigating officer, and Senior Trooper S.W.

Scholobohm, who was the assisting officer. Both state troopers testified at the OAH

hearing that the respondent had difficulty standing, his speech was slurred and incoherent,

his eyes were droopy, and his pupils were dilated. According to Trooper Griffith, the

respondent told her that he had taken Suboxone that had been prescribed for him the prior

evening and “he kept saying something about having taken Ambien and Xanax[.]” 2

Due to heavy rain at the time of the accident, the respondent was transported

to a nearby bank drive-through that was covered by a roof so that field sobriety tests could

be administered. Trooper Griffith testified that she observed as Trooper Scholobohm

administered the field sobriety tests, which included the horizontal gaze nystagmus test

(“HGN test”), the walk-and-turn test, and the one-leg stand test. The respondent failed

each test. Based on the troopers’ observations and the results of the field sobriety tests, the

respondent was asked to (and did) submit to a preliminary breath test. Trooper

Scholobohm testified that the result of that test was a 0.00% blood alcohol concentration.

The respondent testified that he never told the officers that he had taken either

2

Xanax or Ambien.

3

The trooper stated that the respondent was placed under arrest for DUI and transported to

Ruby Memorial Hospital so that a blood test could be performed. 3

After the respondent’s blood test was complete, he was transported to the

West Virginia State Police Barracks for processing and a secondary chemical breath test

was conducted. The results of this test also indicated that the respondent had a 0.00%

blood alcohol concentration.

Mr. Ramadan testified that on July 9, 2015 – the night of the accident – he

was “in a state of panic getting pulled over again,” he had not been sleeping well, he

suffered from a lot of anxiety, and he had trouble focusing. He denied that he was impaired

due to controlled substances but admitted to taking prescribed Suboxone the night before

3

Trooper Griffith sent the blood specimen to the West Virginia State Police

Laboratory for analysis, with a “Forensic Laboratory Case Submission Form” requesting

that the respondent’s blood specimen be tested for “Toxicology, Suspected Suboxone,

Xanax[.]” There is no explanation in the appendix record as to why the respondent’s blood

was only tested for Xanax and Ambien. The test results failed to show the presence of any

of the substances tested for in the respondent’s blood. The OAH found:

[T]he West Virginia State Police laboratory sent the

[respondent’s] blood specimens to NMS Laboratory in

Pennsylvania for analysis, the results of which revealed that

alprazolam [(Xanax)] and zolpidem [(Ambien)] were not

present in the [respondent’s] blood specimens at or above their

reporting limits. The laboratory conducted no testing to

ascertain whether [S]uboxone was present.

4

the accident. 4 Also, he acknowledged that he had a DUI on June 8, 2015, 5 one month prior

to the accident. 6

Rodney Richmond, who had a degree in pharmacy and served as Director of

the Center for Drug Information at Harding University in Arkansas, testified as an expert

witness on the respondent’s behalf. 7 Mr. Richmond testified that there were no positive

4

The respondent stated that he was prescribed four milligrams of Suboxone which

he took every day at 10:00 p.m.

5

The respondent testified that he had relapsed by taking Xanax that he obtained

from a friend “on the street.”

6

The respondent testified that after the July, 2015 accident, he was prescribed an

anti-anxiety medication, Vistaril, but never took any of the medication. He also stated that

after the accident he went into an inpatient treatment facility for seventy-seven days to get

better, then moved into a Sober Living Facility for a period of eight months after

completing his inpatient treatment. Once the respondent left the second facility, he spent

six months on home confinement due to his “DUIs.”

During oral argument before this Court the DMV’s counsel contended that Mr.

7

Richmond “was never qualified as an expert witness at the administrative hearing.”

However, the appendix record does not support, and indeed actually contradicts the DMV’s

argument, to wit:

Q: [By the respondent’s counsel]: In the course[sic] that

you have appeared, have you ever been denied qualification as

an expert?

A: [By Mr. Richmond]: No, I have not.

Q: Okay. Rodney, I’m going to ask Mr. Dragisich [the

DMV’s counsel] if he has any questions as far as your

qualification in this case to render an opinion as an expert, . . .

.

5

findings with respect to any drugs or controlled substances that were tested from the

toxicology report. Further, although he stated, inter alia, that Suboxone did not cause

nystagmus, he agreed that this drug was not in the panel of drugs which were subject to the

test.

The OAH found that

[w]hile [the respondent] denied having ingested any

alprazolam or zolpidem and sought to attribute manifestations

of impairment he exhibited to insomnia, anxiety, lack of focus,

racing thoughts, irritability, stress, fatigue, nervousness, and

confusion, it is most difficult under any line of reasoning to

accept the assertion that the myriad of indicia of impairment

the Petitioner exhibited contemporaneous with the motor

vehicle accident were completely unrelated to ingestion of

controlled substances and/or drugs.

....

ATTORNEY DRAGISICH: Is there a particular opinion

he’s going to be offering that’s before I --- so I don’t have to

drag on any Cross Examination? Is there . . . a particular

opinion he’s offering of what you’re asking him to be

considered as an expert for?

Moreover, the DMV failed to assign as error the respondent’s failure to move for the

witness to be qualified as an expert. Significantly, and troublingly, the contention that the

witness was not properly qualified as an expert was never raised until oral argument before

this Court. Given the DMV’s failure to assign this as error, and the sudden and inexplicable

appearance of this contention during oral argument, we decline to consider the DMV’s

argument regarding the expert witness qualification. See Argus Energy, LLC v. Marenko,

___ W. Va. ___, ___, 887 S.E.2d 223, 228-29 (2023) (footnotes omitted) (“appellate courts

generally do not consider issues or arguments raised for the first time in oral argument

because such issues or arguments are waived by failure to include them in the appellate

brief.”); see also Syl. Pt. 6, Addair v. Bryant, 168 W. Va. 306, 284 S.E.2d 374 (1981)

(“Assignments of error that are not argued in the brief on appeal may be deemed by this

Court to be waived.”).

6

The OAH also summarized what it found to be the relevant portions of Mr. Richmond’s

testimony; however, it gave little weight to the testimony, 8 finding:

Mr. Richmond’s testimony was based upon specific prescribed

dosages of these controlled substances, whereas there is

nothing in the record to verify that the [respondent] ingested

any of the specific dosages that he mentioned. To the contrary,

from the [respondent’s] statements that the Investigating

Officer documented, he advised them that he had ingested

[S]uboxone about 10:00 p.m. the previous night, had also

ingested some unknown but relatively small amounts of

[A]lprazolam and [Z]olpidem earlier, and did not understand

why they would be affecting him.

Even though the OAH did not discuss Mr. Richmond’s testimony that Suboxone does not

cause horizontal gaze nystagmus, it did consider the respondent’s documentary evidence

contained in “Petitioner’s Exhibit 3,” entitled “Appendix to Validation of the Standardized

Field Sobriety Test Battery at BACs Below 0.10 Percent.” The OAH noted that in the

exhibit, the authors acknowledged that horizontal gaze nystagmus “‘may also indicate

consumption of seizure medication, phencyclidine, a variety of inhalants, barbiturates, and

other depressants.’” The OAH found that this acknowledgement “establishes that

horizontal gaze nystagmus is not only a phenomenon of alcohol use, but controlled

substances and drugs as well.” Further, the OAH found that “[t]he information in the

8

The OAH should have made a specific finding in regard to the expert’s credibility;

however, when his testimony is considered in conjunction with all the evidence of record

before the OAH it is discernable that the OAH found portions of the expert’s testimony

unreliable, as shown infra.

7

document also strongly implies that the standardized tests are effective in determining

whether a driver is impaired by controlled substances or drugs, not just alcohol.”

Based on the foregoing factual findings and in reliance on this Court’s

decision in Albrecht v. State, 173 W. Va. 268, 314 S.E.2d 859 (1984), 9 the OAH concluded

as a matter of law that “[t]here is no requirement for the administration of a chemical

sobriety test to prove that a motorist was driving while under the influence of alcohol or

drugs for the purpose of making an administrative revocation of a driver’s license.”

Ultimately, the OAH determined that “the record of this case, when considered in its

entirety, is sufficient to prove the Petitioner drove a motor vehicle in the State while under

the influence of controlled substances on July 9th, 2015. Accordingly, the order of

revocation heretofore entered in this matter should be affirmed.”

The respondent appealed the OAH’s decision to the circuit court, arguing

that the OAH had failed to give the proper weight to the secondary chemical tests, which

were negative, and failed to properly credit his expert’s evidence. A hearing was held on

February 1, 2022, and the court’s final order was entered on March 1, 2022. The court

found that the secondary chemical test of blood, as well as the secondary chemical test of

breath failed to detect any alcohol, controlled substances, and/or drugs in the respondent’s

system. The court found that “the only evidence” of the respondent’s drug consumption

9

The Albrecht opinion is discussed infra in greater detail.

8

was his admission that he ingested Suboxone, as prescribed, the evening prior to the

incident. However, the DMV failed to test for Suboxone and the respondent testified that

he does not experience dizziness or fatigue while taking it. The court noted that there were

“numerous explanations” for the respondent’s performance during the field sobriety tests,

including his anxiety, that he had just been involved in a traffic accident, that the traffic

was passing him on both sides of the intersection, that he was transported to a different

location due to the rain, that there were at least three police officers involved, and that there

was no baseline with which to compare his performance. The court found that the OAH

improperly weighed the results of the field sobriety tests against the negative findings of

the secondary chemical tests, as well as the explanations for the respondent’s performance

during the field sobriety tests. The court also found that the respondent’s expert’s

“unrebutted testimony” supported the negative findings of the secondary chemical test and

“debunked the results of the HGN Test by testifying that Suboxone does not cause

nystagmus, which the OAH failed to mention in its Final Order.” Thus, the court

concluded, the OAH “clearly erred” in its failure to give “proper weight” to negative

chemical test results and to “properly credit” the respondent’s expert’s testimony. The

DMV appeals.

II. Standard of Review

The West Virginia Administrative Procedures Act governs the scope of

judicial review by the circuit court and this Court. See generally W. Va. Code § 29A-5-4

(2023). Regarding the nature of the circuit court’s review, we have held:

9

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. W. Va. Hum. Rts. Comm’n,

172 W. Va. 627, 309 S.E.2d 342 (1983). This same standard also applies to this Court’s

review:

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[(g)] 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). In other words,

[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.

10

Syl. Pt. 1, in part, Cahill v. Mercer Cnty. Bd. of Educ., 208 W. Va. 177, 539 S.E.2d 437

(2000). As we recently stated:

“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.

Id. at 306, 465 S.E.2d at 408 (internal citations and quotations

omitted).

Frazier v. S.P., 242 W. Va. 657, 664, 838 S.E.2d 741, 748 (2020). With the forgoing in

mind, we address the issues before us.

III. Discussion

The DMV argues that the circuit court erred in substituting its judgment for

that of the factfinder, the OAH, in two areas: 1) the weight given by the OAH to the

11

standardized field sobriety tests; and 2) the credibility it afforded the respondent’s expert’s

testimony. The DMV contends that the court then used its own findings, rather than those

of the OAH, to justify reversing the respondent’s license revocation. Conversely, the

respondent argues that the court correctly found that the OAH erred in revoking his license

because “secondary chemical tests of his breath and blood were performed which

conclusively show that he could not have been impaired due to alcohol or drugs,” as those

test results demonstrated a complete absence of alcohol or controlled substances, and

correctly found that the OAH erred in ignoring the substance of his expert’s testimony,

which also supported the lack of a sufficient amount of any controlled substances in his

system that would have impaired his ability to drive.

Our review of whether the evidence was properly considered by the circuit

court requires us to consider whether appropriate deference was given to the factual

findings and credibility determinations made by the OAH. See id. In this regard, our well-

established precedent governing any decision by the OAH upholding an administrative

license revocation provides:

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.

Syl. Pt. 2, Albrecht v. State, 173 W. Va. 268, 314 S.E.2d 859 (1984); accord Reed v. Hill,

Syl. Pt. 5, 235 W. Va. 1, 770 S.E.2d 501 (2015); Syl. Pt. 6, Frazier v. Bragg, 244 W. Va.

12

40, 851 S.E.2d 486 (2020). In a similar vein, this Court most recently held in syllabus

point four of Casto v. Frazier, 248 W. Va. 554, 889 S.E.2d 276 (2023), that the DMV must

prove the following by a preponderance of the evidence: 10 “A person is ‘under the

influence’ if the person (1) consumed, used, took, or ingested alcohol, controlled

substances, or drugs and (2) the alcohol, controlled substances, drugs, or any combination

thereof impaired the person’s ability to operate a motor vehicle with ordinary care.” Id. at

___, 889 S.E.2d at 278, Syl. Pt. 4.

It has long been recognized that

[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.

Albrecht, 173 W. Va. at 269-70, 314 S.E.2d at 861, Syl. Pt. 1; accord Syl. Pt. 4, Coll v.

Cline, 202 W. Va. 599, 505 S.E.2d 662 (1998) (“There are no provisions in either W. Va.

Code, 17C-5-1, et seq., or W. Va. Code, 17C-5A-1, et seq., that require the administration

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

10

See Frazier v. Gaither, 248 W. Va. 420, ___888 S.E.2d 920, 924-25 (2023)

(providing that “[t]he DMV has the burden of proof in such cases and must prove these

facts by a preponderance of the evidence to support an administrative license revocation

for driving under the influence. See also White v. Miller, 228 W. Va. 797, 802, 724 S.E.2d

768, 773 (2012) (recognizing that ‘preponderance of the evidence standard pertain[s] to

administrative revocation proceedings’).”(footnotes omitted).).

13

of alcohol, controlled substances or drugs for purposes of making an administrative

revocation of his or her driver’s license.”).

A. Field Sobriety Tests Results

Turning to the field sobriety tests, we first examine whether the OAH erred

in the weight it gave to the standard field sobriety test results as opposed to the blood test,

a question that must be viewed in the context of all the evidence presented. In this regard

the OAH considered the respondent’s admission to consuming Suboxone, Ambien, and

Xanax in conjunction with his attempt to explain why he showed indicia of impairment on

the night he rear-ended a vehicle. The OAH found the respondent’s admissions to ingesting

or consuming the above-mentioned controlled substances to be credible, yet did not find

credible his testimony that he took the prescribed amount of Suboxone the night before the

accident, noting that there was “nothing in the record to verify that the [respondent]

ingested any of the specific dosages that he mentioned.” The OAH also considered the

testimony of three officers who were on the scene of the accident. Each officer testified

that the respondent was staggering, admitted to having fallen twice, had slurred speech,

had difficulty following the troopers’ instructions, had to lean on a vehicle to keep from

falling, had droopy eyes, and had dilated pupils. In the OAH’s consideration of all of the

evidence, it obviously placed greater weight on the standard field sobriety tests and the

observations of three trained law-enforcement officers, because, as it concluded, “it was

most difficult, under any line of reasoning, to accept the assertion that the myriad of indicia

of impairment the [respondent] exhibited contemporaneous with the motor vehicle accident

14

were completely unrelated to ingestion of controlled substances and/or drugs.” On this

record we conclude that the OAH was justified in giving greater weight to the respondent’s

admission to taking controlled substances or drugs, together with the law-enforcement

officers’ testimony as to the respondent’s physical impairment and his failure to pass any

of the standard field sobriety tests, than it did to the negative results of the secondary

chemical breath tests and blood test. Determining the weight of the evidence and making

factual findings are clearly within the OAH’s purview, so long as such determinations and

findings are supported by the evidence – as they were in this case. See Frazier, 242 W.

Va. at 664, 838 S.E.2d at 748.

Rather than review whether the OAH’s factual findings were supported by a

preponderance of the evidence, the circuit court second-guessed the OAH’s credibility

determinations and its determination of the appropriate weight to be given each parties’

evidence. More particularly, the court focused its attention on the secondary chemical

blood test and the secondary chemical breath test, both of which failed to show the presence

of any alcohol, controlled substances, and/or drugs in the petitioner’s system. In addition,

the court found credible the petitioner’s explanations for his poor performance during the

field sobriety tests and determined that the OAH had improperly relied on the field sobriety

tests rather than the secondary chemical test “without adequate discussion.” The court

ultimately determined that the OAH “improperly weighed the results of the field sobriety

tests against the negative findings of the secondary chemical tests as well as the aforesaid

explanations for [the respondent’s] performance during the field sobriety tests.” In other

15

words, the court substituted its judgment for the factual findings and credibility

determinations of the OAH.

In Casto, we recently addressed a situation wherein a driver failed field

sobriety tests (the one-leg stand test and the walk-and-turn test) but had negative secondary

chemical and blood test results. See 248 W. Va. at ___, 889 S.E.2d at 278. In that case, the

driver, Mr. Casto, was observed by a patrolman with the Charleston Police Department

parking diagonally across multiple spaces in a convenience store parking lot. Id. When he

exited his vehicle, Mr. Casto appeared unsteady, and he left his vehicle running while he

went into the convenience store. Mr. Casto exited the store, at which point, the police

officer approached him and began to investigate whether he had been DUI. Id. Mr. Casto

denied having consumed or ingested any alcohol, drugs, or controlled substances, and there

was “no odor indicating drug use” or evidence of drugs or controlled substances reported.

Id. at ___, 889 S.E.2d at 284. The preliminary breath test performed on Mr. Casto showed

no alcohol present in his system. Even though the officer noted that Mr. Casto’s eyes were

bloodshot, there was no evidence of impairment when the nystagmus test was performed.

The patrolman stated that Mr. Casto performed the one-leg stand test incorrectly and had

difficulties with the walk-and-turn test. Mr. Casto agreed to submit to a blood test. The

sample was subjected to a ninety-panel screen, which was negative for all the tested

substances. Id. at 278-79. Despite the negative blood test and Mr. Casto’s denial of having

consumed or ingested any alcohol, drugs, or controlled substances, his driver’s license was

administratively revoked for DUI based on the results of the standard field sobriety tests

16

and the patrolman’s observations. Id. The license revocation was upheld by both the OAH

and the circuit court, and Mr. Casto appealed. Id.

In reversing and remanding both the OAH’s and the circuit court’s decision

to uphold the license revocation, we explained that

[a] finding of driving under the influence of drugs or

controlled substances necessarily requires a driver to be

impaired as a result of his use or consumption of drugs or

controlled substances. The record in this case does not support

a finding that Mr. Casto took or ingested drugs or controlled

substances because the DMV offered no evidence that he used,

consumed, ingested, or took controlled substances or drugs. As

such, the DMV failed to carry its burden to prove, by a

preponderance of the evidence, that Mr. Casto drove under the

influence of drugs or controlled substances. Consequently, his

license revocation must be reversed. See generally Frazier v.

Gaither, 248 W. Va. 420, 888 S.E.2d 920 (2023) (recognizing

DMV’s preponderance of the evidence burden of proof in

license revocation cases). The OAH’s finding that the evidence

supported the revocation of Mr. Casto’s driver’s license for

driving under the influence of drugs or controlled substances is

not substantiated by the record evidence, and the circuit court

erred by affirming the OAH’s determination that Mr. Casto’s

license revocation was proper. See Syl. pt. 1, Francis O. Day

Co., Inc. v. Dir., Div. of Env’t Prot., 191 W. Va. 134, 443

S.E.2d 602 (1994) (“Evidentiary findings made at an

administrative hearing should not be reversed unless they are

clearly wrong.” (emphasis added)). Therefore, we reverse the

circuit court’s order upholding Mr. Casto’s license revocation

and remand for entry of an order rescinding Mr. Casto’s

revocation and reinstating his driver’s license.

248 W. Va. at ___, 889 S.E.2d at 284-85.

17

There is a key factual distinction between the facts in Casto and those in this

case. Here, the respondent admitted to ingesting Suboxone prior to the accident, and the

troopers testified that he also admitted to taking both Xanax and Ambien. In contrast, Mr.

Casto denied ingesting any alcohol, controlled substances, or drugs, and there was no

contradictory evidence.

Notwithstanding this factual distinction, this Court’s (and the circuit court’s)

review of the evidence is the same as in any other case of this nature; we must “uphold any

of the . . . [OAH’s] factual findings that are supported by substantial evidence, and we owe

substantial deference to inferences drawn from these facts,” see S.P., 242 W. Va. at 664,

838 S.E.2d at 748 (citation omitted), so long as those findings are not “[c]learly wrong in

view of the reliable, probative and substantial evidence on the whole record.” See W. Va.

Code § 29-5-4(g)(5); Muscatell, 196 W. Va. at 590, 474 S.E.2d at 520, Syl. Pt. 1.

Accordingly, we proceed to determine whether the record as a whole supported the OAH’s

factual determination that the respondent ingested or consumed alcohol, controlled

substances, or drugs that impaired his ability to operate a motor vehicle. See Casto, 248

W. Va. at ___, 889 S.E.2d at 277, Syl. Pt. 4. As we recognized in Casto, our law

require[s] a finding that a driver actually used or ingested a

substance that would impair his ability to operate a motor

vehicle, either from actual consumption, as noted in Albrecht, 11

or from an admission of consumption or an odor, as referenced

See Albrecht, 173 W. Va. at 269, 314 S.E.2d at 861 (the driver admitted to

11

consuming two or three twelve-ounce bottles of beer before the accident).

18

in White. 12 In other words, the evidence to support a license

revocation for driving under the influence of drugs or

controlled substances must show both ingestion of the

referenced substances and that the driver was impaired as a

result of such use.

Id. at ___, 889 S.E.2d at 283 & Syl. Pt. 4 (footnotes added).

The OAH’s factual determination that the petitioner proved by a

preponderance of the evidence that the respondent had ingested controlled substances

which impaired his ability to operate a motor vehicle is entitled to substantial deference.

The evidence in this case – the respondent’s admission to taking controlled substances, the

observations of the three trained law-enforcement officers, and the failed field sobriety

tests – support that factual determination. Accordingly, we find that the circuit court erred

in substituting its judgment for the factual determination of the OAH, and then using its

determination as a basis for overturning the OAH’s decision to uphold the respondent’s

administrative license revocation.

B. Expert Witness’s Credibility

We easily find that the circuit court erred in finding that the OAH failed to

“properly credit the substance of Mr. Richmond’s testimony, which supports the negative

findings of the secondary chemical test of blood.” Our review of the appendix record

12

See White 228 W. Va. at 800, 724 S.E.2d at 771 (the driver admitted consuming

four beers over an hour and a half period and there was an odor of alcoholic beverage on

his breath).

19

shows that the OAH reviewed the documentary evidence as well as the expert witness’s

testimony in making its credibility determination. In contrast, the court simply reassessed

the expert’s testimony and weighed his credibility differently, focusing on his emphasis as

to the lack of positive findings for the controlled substances that were tested, as well as the

expert’s testimony about the “half-life” or amount of time a drug stays in a person’s system

for Xanax and Ambien, and his opinion as to whether the controlled substance Suboxone

can cause a nystagmus. The court determined that the OAH “failed to properly credit” the

expert’s testimony, without any explanation as to how or why the OAH’s credibility

determination was without a basis in the evidence or was otherwise not entitled to

deference. Our law is clear that “[a] reviewing court cannot assess witness credibility

through a record. The trier of fact is uniquely situated to make such determinations and this

Court is not in a position to, and will not, second guess such determinations.” Michael D.C.

v. Wanda L.C., 201 W. Va. 381, 388, 497 S.E.2d 531, 538 (1997); Martin v. Randolph

Cnty. Bd. of Educ., 195 W. Va. 297, 465 S.E.2d 399 (1995) (“the ALJ’s credibility

determinations are binding unless patently without basis in the record.”). Thus, we find

that the court erred when it simply substituted its assessment of the expert’s credibility for

that of the OAH.

IV. Conclusion

For the foregoing reasons, the circuit court’s March 1, 2022, order is reversed and

this case is remanded to the court for entry of an order consistent with this opinion.

20

Reversed and remanded

with directions.

21