IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2001 Term
PATRICIA D. CHOMA,
Petitioner below, Appellant,
WEST VIRGINIA DIVISION OF MOTOR VEHICLES,
Respondent below, Appellee.
Appeal from the Circuit Court of Monongalia County
Hon. Robert B. Stone, Judge
Civil Action No. 99-C-AP-69
REVERSED AND REMANDED
Submitted: September 18, 2001
Filed: November 28, 2001
Raymond H. Yackel, Esq. Darrell V. McGraw, Jr.
Morgantown, West Virginia Attorney General
Attorney for Appellant Janet E. James
Assistant Attorney General
Charleston, West Virginia
Attorneys for Appellee
JUSTICE STARCHER delivered the Opinion of the Court.
JUSTICE MAYNARD concurs and reserves the right to file a concurring opinion.
SYLLABUS BY THE COURT
1. Where there is a direct conflict in the critical evidence upon which an
agency proposes to act, the agency may not elect one version of the evidence over the
conflicting version unless the conflict is resolved by a reasoned and articulate decision,
weighing and explaining the choices made and rendering its decision capable of review by
an appellate court. Syllabus Point 6, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518
2. On appeal of an administrative [decision] . . . findings of fact by the
administrative officer are accorded deference unless the reviewing court believes the findings
to be clearly wrong. Syllabus Point 2 (in part), Muscatell v. Cline, 196 W.Va. 588, 474
S.E.2d 518 (1996).
3. In administrative proceedings under W.Va.Code, 17C-5A-1 et seq., the
commissioner of motor vehicles must consider and give substantial weight to the results of
related criminal proceedings involving the same person who is the subject of the
administrative proceeding before the commissioner, when evidence of such results is
presented in the administrative proceeding.
In the instant case we reverse a decision of the West Virginia Commissioner
of Motor Vehicles suspending a driver's license.
Facts & Background
The appellant, Patricia D. Choma, appeals from an order of the Circuit Court
of Monongalia County dated May 19, 2000, affirming an administrative decision of the West
Virginia State commissioner of the motor vehicles (the Commissioner) dated October 4,
1999. The Commissioner's decision, which adopted the recommended findings of fact and
conclusions of law of a hearing examiner, revoked the appellant's driver's license for 6
months for driving under the influence of alcohol, pursuant to the provisions of W.Va. Code,
The Commissioner's decision arises from the following facts: the appellant
was arrested in Monongalia County, West Virginia on February 28, 1999, and criminally
charged with driving under the influence of alcohol (DUI).
(See footnote 1)
Information on the appellant's
arrest was forwarded to the Commissioner, who issued an order of license revocation that the
appellant contested. That contest led to an administrative hearing before a DMV hearing
examiner, held on May 17, 1999. The examiner issued a recommended decision that the
Commissioner adopted, overruling the appellant's protest and affirming the license
suspension. This decision was upheld by the circuit court, and it is this decision that we
Standard of Review
This Court applies the same standard of review that the circuit court applied
to the Commissioner's administrative decision -- giving deference to the Commissioner's
purely factual determinations; and giving de novo review to legal determinations.
The appellant's challenge to the Commissioner's decision asserts three basic
grounds. First, the appellant contends that the Commissioner's decision discredited and
disregarded substantial evidence that favored the appellant in an arbitrary, capricious, and
unreasonable fashion. Second, the appellant contends that the Commissioner's decision was
clearly wrong in view of the totality of the evidence in the record. Third, the appellant
contends that the Commissioner's finding that the appellant drove under the influence of
alcohol was prohibited because the appellant was acquitted of the criminal charge of DUI.
At the Commissioner's administrative hearing, the state police officer who
arrested the appellant
(See footnote 2)
testified that he followed the appellant in his cruiser for a distance and
observed her cross the center line, that he pulled the appellant over, that the appellant had the
odor of an alcoholic beverage on her breath, that she was unable to balance on one leg for
30 seconds, that she was profane -- defiant, argumentative, belligerent when arrested, and
that she made off-the-wall comments at the police station where she was taken after being
The appellant and four of her friends who had been with the appellant at a
restaurant just before her arrest testified that the appellant had two alcoholic beverages in the
several hours just before her arrest, and that she was not intoxicated when she left their
company just before the arrest. The Commissioner's decision summarily discounted these
witnesses' testimony as unreliable because of the friendship between the appellant and the
The appellant also presented as evidence a 1 hour and 40 minute-long
videotape recording that was made of the appellant, apparently by the arresting officers, just
after the appellant was arrested and while the appellant was in the police station. The
appellant did not know at the time that she was being video-recorded. The videotape shows
the appellant seated and getting up to go to the restroom and to be fingerprinted. She signs
papers, answers questions, and blows into an alcohol/breath analyzer machine.
(See footnote 3)
Commissioner's decision says that the appellant appears on the video tape to be distraught,
confused, disoriented, interrupting, sarcastic, uncertain, and experiencing mood swings.
The appellant also presented the expert testimony of a forensic scientist with
substantial experience in alcoholic testing for state law enforcement agencies. The expert
testified that based on her observations of the videotape, the appellant was not intoxicated.
The Commissioner's decision summarily discounts the expert's opinion.
We have carefully reviewed the record of the administrative hearing and the
evidence that was before the Commissioner. We agree with the appellant's contention that
the Commissioner's discussion and evaluation of the record evidence was so selective and
one-sided as to rise to the level of arbitrariness and capriciousness.
Illustrative of the Commissioner's approach to the evidence is the
Commissioner's evaluation of the videotape recording. The tape in fact portrays a person
who is overall rather poised and composed, given the inherent stress of the situation. The
Commissioner's characterization of the appellant's behavior as showing clear signs of
intoxication is not consistent with what is shown on the tape. Additionally, the appellant's
demeanor on the videotape is grossly inconsistent with the level of intoxication in the test
results that the officer obtained and forwarded to the Commissioner. In short, the evidence
of the videotape fundamentally contradicts the narrative testimony of the arresting officer
about the appellant's condition and demeanor at the time of her arrest -- testimony that the
hearing examiner uncritically credited and relied upon.
Evidence such as driving error, consumption of alcohol, and poor performance
on a field sobriety test may be sufficient under a preponderance standard to support an
administrative finding by the Commissioner of driving while intoxicated. See Syllabus Point
1, Dean v. W.Va. DMV, 195 W.Va. 70, 464 S.E.2d 589 (1995). But where other evidence
strongly weighs against such a finding (in the instant case, such evidence included a
videotape that does not show intoxication, expert opinion, witness testimony, and an
apparently flawed breath analyzer test), the Commissioner's decision cannot arbitrarily
disregard that contradictory evidence. As we stated in Syllabus Point 6 of Muscatell v. Cline,
196 W.Va. 588, 474 S.E.2d 518 (1996):
Where there is a direct conflict in the critical evidence upon
which an agency proposes to act, the agency may not elect one
version of the evidence over the conflicting version unless the
conflict is resolved by a reasoned and articulate decision,
weighing and explaining the choices made and rendering its
decision capable of review by an appellate court.
In the instant case, our independent review of the record leads us to agree with
the appellant's contention that the Commissioner's decision arbitrarily and capriciously
discredited and disregarded the evidence that favored the appellant, and was clearly contrary
to the weight of the evidence.
In Syllabus Point 2 (in part) of Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d
518 (1996), we stated:
On appeal of an administrative [decision] . . . findings of fact
by the administrative officer are accorded deference unless the
reviewing court believes the findings to be clearly wrong.
In the instant case, we conclude that the Commissioner's findings were clearly
wrong in light of all of the probative and reliable evidence in the record. We therefore
reverse the Commissioner's decision.
The appellant additionally urges this Court to hold that the Commissioner erred
in entering a decision suspending the appellant's license, because the appellant was acquitted
in her criminal DUI proceeding. The appellant argues that the adjudication of the DUI issue
in the criminal context in favor of the appellant is res judicata on that issue in the
The Commissioner points out in reply that the burdens of proof are different
in the two forums -- and that this Court has regularly upheld the two-track approach of
separate administrative driver's license proceedings and criminal DUI proceedings. See, e.g.,
Wagoner v. Sidropolis, 184 W.Va. 40, 43, 399 S.E.2d 183, 186 (1990) (a clear statutory
demarcation [has been recognized] between the administrative issue on a suspension and the
criminal issue on a charge of driving while under the influence.)
The Commissioner is correct in pointing out that we have upheld the statutory
two-track approach. However, we also must recognize that the separate procedures are
connected and intertwined in important ways. For example, criminal arrests for DUI trigger
license suspensions, W.Va.Code, 17C-5A-1(b); and a criminal conviction for DUI is
in itself grounds for license suspension. W.Va.Code, 17C-5A-1a (1994).
The appellant takes the position that even though the burdens of proof are
different, exoneration in a criminal DUI proceeding should be res judicata and dispositive
in favor of the driver in an administrative license suspension proceeding. However, [i]t is
the general rule that a judgment of acquittal in a criminal action is not res judicata in a civil
proceeding which involves the same facts. Syllabus, Steele v. State Road Commission, 116
W.Va. 227, 179 S.E. 810 (1935).
The Commissioner takes the position that although he may suspend a license
upon proof of a criminal DUI conviction, he may not give any consideration or weight to
proof of a criminal DUI acquittal. But if proof of a DUI conviction in a criminal proceeding
is not only admissible but dispositive in a license suspension proceeding, then fundamental
fairness requires that proof of an acquittal in that same criminal DUI proceeding should be
admissible and have weight in a suspension proceeding. Aside from all else, due process
means fundamental fairness. Pinkerton v. Farr, 159 W.Va. 223, 230, 220 S.E.2d 682, 687
We believe that a fair, constitutionally acceptable approach lies midway
between the parties' positions. Therefore we hold that in administrative proceedings under
W.Va.Code, 17C-5A-1 et seq., the commissioner of motor vehicles must consider and give
substantial weight to the results of related criminal proceedings involving the same person
who is the subject of the administrative proceeding before the Commissioner, when evidence
of such results is presented in the administrative proceeding.
(See footnote 4)
The decision of the circuit court affirming the Commissioner's decision is
reversed; the circuit court on remand should enter an order vacating the Commissioner's
administrative decision suspending the appellant's driver's license.
Reversed and Remanded.