IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
Petitioner Below, Appellee
Pamela Games-Neely, Esq. Robert C. Stone, Jr., Esq.
Prosecuting Attorney Martinsburg, West Virginia
Martinsburg, West Virginia Attorney for the Appellant
Attorney for Appellee Carte
Jacquelyn I. Custer, Esq.
Senior Assistant Attorney General
Charleston, West Virginia
Attorney for Appellee Cline
JUSTICE MAYNARD delivered the Opinion of the Court.
1. An arresting officer in a DUI case is a party to a license revocation hearing, within the meaning of W.Va. Code 17C-5A-1, et seq., and within the meaning of the State Administrative Procedures Act, W.Va. Code 29A-1-1, et seq., who has standing to appeal an adverse administrative decision.
2. "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).
3. W.Va. Code 17C-5A-1a (a) (1994) does not require that a police
officer actually see or observe a person move, drive, or operate a motor vehicle while the
officer is physically present before the officer can charge that person with DUI under this
statute, so long as all the surrounding circumstances indicate the vehicle could not otherwise
be located where it is unless it was driven there by that person.
Appellant, Douglas W. Royer, appeals an order entered by the Circuit Court
of Berkeley County, West Virginia, on March 16, 1996. The circuit court's order affirmed
a prior reversal of the order of the Commissioner of the Division of Motor Vehicles
(Commissioner). The court's previous order had reinstated the appellant's driving privilege
after his license had been revoked for driving under the influence of alcohol. Appellant
contends the circuit court erred by concluding the arresting officer, Sergeant Mark Carte, has
standing to appeal the Commissioner's order and in concluding the Commissioner's order
resulted from an error of law and was clearly wrong. We believe the circuit court was
correct, and therefore, we affirm the order of the Circuit Court of Berkeley County.
On June 11, 1994, appellant was arrested by Sergeant Mark Carte and charged
with driving under the influence of alcohol. Pursuant to W.Va. Code 17C-5A-1(c) (1994),(1)
the appellant's privilege to drive was administratively revoked by order of Jane Cline, the
Commissioner of the Division of Motor Vehicles of the State of West Virginia (DMV). The
appellant appealed the administrative revocation and was granted an administrative hearing,
pursuant to W.Va. Code 17C-5A-2 (1994),(2) on April 26, 1995.
At the administrative hearing, Sergeant Mark Carte testified that he received
a call at approximately 4:20 A.M. during the morning of April 11, 1994. The caller stated
that a suspicious vehicle was sitting at a stop light in the access driveway of the K-Mart Store
and Lowe's parking lot, which enters onto State Route 45 in Berkeley County, West
Virginia. The officer went to the scene and there observed a 1991 blue Camaro sitting at the
intersection with the appellant slumped behind the wheel. The appellant appeared to be
passed out with the engine running, the transmission in drive, and his foot on the brake. The
officer awoke the appellant and had him shut off the engine. While speaking with the
appellant, the officer noticed the odor of alcohol on the appellant's breath.
The officer asked to see the appellant's drivers license, registration, and
insurance information. The appellant provided the documentation. The officer then asked
the appellant to get out of the vehicle and perform three field sobriety tests, the walk and
stand test, the one leg stand test, and the horizontal gaze nystagmus (HGN) test. The officer
noted the appellant was unable to properly complete any of the three tests, so the appellant
was placed under arrest for driving under the influence of alcohol (DUI).
The appellant was provided a copy of the West Virginia Implied Consent Law,
which was explained to him. He agreed to take the intoxilyzer test.(3) The appellant was then
read his Miranda rights,(4) and he agreed to give an interview about the incident. When asked
if he had been driving, the appellant answered "you know I was;" when asked where he was
going, he replied "going home." He did not know the name of the street or highway on
which he was driving, but stated that his direction of travel was "south." When asked if he
had been drinking, he replied "yes"; when asked what he had been drinking, he replied
"beer"; and when asked how much, he replied "ten or twelve."
On cross-examination, the appellant asked Sergeant Carte only one question;
that is, if the vehicle was stationary when the officer arrived on the scene. The officer
responded that it was. The appellant presented no witnesses and did not testify in his own
behalf at the administrative hearing.
On September 29, 1995, the Commissioner entered an order, which reversed
the appellant's drivers license revocation and reinstated his driving privileges. The order
concludes "the State failed to present sufficient evidence to prove Douglas W. Royer drove
a motor vehicle, in this State, while under the influence of alcohol, controlled substance or
drugs," and relies on the definition of "driving" as it is stated in State v. Taft, 143 W.Va. 365,
102 S.E.2d 152 (1958). Syllabus Point 1 of Taft states, in part, "there must be an intentional
movement of the automobile by the defendant." Thereafter, Sergeant Carte, with the
assistance of the Berkeley County Assistant Prosecuting Attorney,(5) filed a petition for appeal
in the Circuit Court of Berkeley County, seeking review of the Commissioner's final order.
On appeal to the circuit court, the Commissioner was represented by the Attorney General
of West Virginia.
The central issue below was whether the trooper had standing to seek appellate
review of an adverse ruling following an administrative hearing. A secondary issue was
whether the Commissioner was justified in relying upon State v. Taft, 143 W.Va. 365, 102
S.E.2d 152 (1958), to conclude the trooper offered insufficient evidence to prove the
appellant had intentionally operated a motor vehicle on June 11, 1994.
The circuit court entered an order on January 23, 1996, concluding that
"Trooper Carte was and is a 'party' within the meaning of W.Va. Code 17C-5A-1 et seq.
and within the meaning of the [Administrative Procedures] Act, therefore Trooper Carte has
standing to file the instant appeal." The court also found the Commissioner's ruling that the
appellant did not drive a motor vehicle while under the influence of alcohol as defined by
State v. Taft, 143 W.Va. 365, 102 S.E.2d 152 (1958), was clearly wrong and resulted from
an error of law. The Commissioner's order was found to be insufficient because it
contained no findings of fact or conclusions of law, pursuant to W.Va. Code 29A-5-3
(1964). Therefore, the case was remanded back to the DMV for further proceedings. The
appellant filed a motion to alter or amend the court's judgment, which motion was denied
by the court on March 14, 1996. It is from this order that the appellant brings this appeal.
In Muscatell v. Cline, 196 W.Va. 588, 594-95, 474 S.E.2d 518, 524-25, (1996), this Court discussed the standard of review for administrative orders that are appealed to this Court following appeal to the circuit court, by stating:
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) (1964) 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. Philyaw v. Gatson, 195 W.Va. 474, 466 S.E.2d 133 (1995), and
W.Va. Code 29A-5-4-(g) (1964).
In cases where the circuit court has amended the result
before the administrative agency, this Court reviews the final
order of the circuit court and the ultimate disposition by it of an
administrative law case under an abuse of discretion standard
and reviews questions of law de novo. Burnside v. Burnside,
194 W.Va. 263, 460 S.E.2d 264 (1995).
This is a case of first impression in West Virginia. The appellant's main thrust
on appeal is that the circuit court erred by concluding that Sergeant Carte has standing to
appeal the Commissioner's order. Appellant argues there is no statutory scheme provided
in the traffic regulations section of the West Virginia Code for an officer to appeal the
reinstatement of a license revocation, and the State Administrative Procedures Act (APA),
W.Va. Code 29A-5-4(g) (1964), only sanctions review by a court if the "substantial rights
of the petitioner" have been prejudiced. Therefore, it is the position of the appellant that the
arresting officer lacks standing to appeal the license reinstatement. The Commissioner
concurs with the appellant and asserts that only the licensee is entitled to seek judicial
review. Sergeant Carte argues he has standing to appeal the reinstatement of a license
revocation because as the arresting officer, he was treated as a party in all respects and is
referred to as a party in the state regulations. After careful consideration, we agree that the
right to seek circuit court review extends to the arresting officer, as well as the licensee and
The procedure by which a license to operate a motor vehicle is revoked is administrative in nature and is established by W.Va. Code 17C-5A-1, et seq., Administrative Procedures for Suspension and Revocation of Licenses for Driving Under the Influence of Alcohol, Controlled Substances or Drugs. Judicial review is provided, under the APA, West Virginia Code 29A-1-1, et seq., at the request of the driver whose license has been administratively revoked because W.Va. Code 17C-5A-2(q) (1996) states in pertinent part, "If the commissioner shall after hearing make and enter an order affirming the commissioner's earlier order of revocation, the person shall be entitled to judicial review as set forth in chapter twenty-nine-a [ 29A-1-1 et seq.] of this code[.]"
This Court has previously said, "Appeals from revocation issued by the Commissioner of the West Virginia Department of Motor Vehicles are governed by the West Virginia Administrative Procedure Act." Donahue v. Cline, 190 W.Va. 98, 101, 437 S.E.2d 262, 265 (1993) (per curiam). Therefore, we turn to the language of the APA to determine whether the arresting officer should be considered a "party" to the action. W.Va. Code 29A-5-1(a) (1964) provides in pertinent part:
In any contested case all parties shall be afforded an
opportunity for hearing after at least ten days' written notice.
The notice shall contain the date, time and place of the hearing
and a short and plain statement of the matters asserted. If the
agency is unable to state the matters in detail at the time the
notice is served, the initial notice may be limited to a statement
of the issues involved. Thereafter, upon application a more
definite and detailed statement shall be furnished. An
opportunity shall be afforded all parties to present evidence and
argument with respect to the matters and issues involved.
W.Va. Code 29A-5-2(c) (1964) states, "Every party shall have the right of
cross-examination of witnesses who testify, and shall have the right to submit rebuttal
evidence." (Emphasis added). And, W.Va. Code 29A-5-4(a) (1964) provides that "[a]ny
party adversely affected by a final order or decision in a contested case is entitled to judicial
review thereof under this chapter, but nothing in this chapter shall be deemed to prevent
other means of review, redress or relief provided by law." (Emphasis added).
The rules governing the procedures for denial, suspension, revocation or
nonrenewal of driving privileges are contained in Title 91, Series 5 of the Code of State
Regulations (91 C.S.R. 5). 91 C.S.R. 5-7.14 provides judicial review for a licensee whose
driver's license is, or remains, suspended after a hearing. "Hearing [m]eans the
administrative procedures conducted by the Commissioner pursuant to W.Va. Code 17C-5A-1 et seq., and 29A-5-1 et seq. and this section as applied to contested cases arising out
of the enforcement of administrative revocations imposed under the provisions of W.Va.
Code 17C-5A-1 et seq." 91 C.S.R. 5-14.2.4.
The arresting officer or the licensee may request a hearing and may be granted
a continuance, pursuant to 91 C.S.R. 5-14.4.6. The arresting officer, as well as the licensee
may be represented by an attorney at the hearing. 91 C.S.R. 5-14.5.1. The licensee has the
right to cross-examine the arresting officer, unless precluded by Code or legislative rules,
91 C.S.R. 5-14.5.4.b., and "[t]he arresting officer has the right to cross examine any person
who gives testimony." 91 C.S.R. 5-14.5.4.d. Further, 91 C.S.R. 5-14.5.4.e. provides that
"[f]ollowing the presentation of all evidence, each party has the right to offer closing
arguments." (Emphasis added).
At administrative hearings, the arresting officer testifies and is subject to cross-examination. The officer often is not represented by counsel, so the officer questions and
cross-examines the licensee and witnesses, objects to the introduction of evidence, and
makes closing arguments. Moreover, he is treated as a party in all respects in that he is
notified of hearing continuances and is granted an opportunity to review the entire file prior
to the hearing. The officer is deemed a party to the administrative hearing and is afforded
the rights of a party. The only right not presently afforded the officer which all other parties
enjoy is the right to appeal an unfavorable decision. It goes against our sense of fairness for
the officer to be burdened with the responsibilities of a party in the administrative hearing,
but to enjoy none of the privileges available to the remaining parties at the close of the
hearing. We hold, therefore, that the arresting officer in a DUI case is a party to a license
revocation hearing, within the meaning of W.Va. Code 17C-5A-1, et seq., and within the
meaning of the State Administrative Procedures Act, W.Va. Code 29A-1-1, et seq.,who has
standing to appeal an adverse administrative decision.
The appellant next asserts on appeal that the circuit court erred in concluding
the Commissioner's final order resulted from an error of law and was clearly wrong. The
appellant contends that because Sergeant Carte described the appellant's car as "sitting"
three times during the administrative hearing, the officer did not prove the appellant drove
a motor vehicle while under the influence of alcohol. The Commissioner agrees and
contends the State failed to prove the appellant actually "drove," while under the influence
of alcohol, the vehicle in which he was found. The Commissioner goes on to state in her
brief that "[w]hile it seems logical to assume that Mr. Royer had driven the vehicle to the
intersection, there is nothing in the record that definitely establishes movement of the car at
a time when Mr. Royer was under the influence of alcohol." Sergeant Carte asserts there
was sufficient evidence, under the preponderance of the evidence standard, for the circuit
court to properly find the appellant drove his vehicle while under the influence of alcohol
and to conclude, therefore, that the Commissioner's order was clearly wrong.
The Commissioner ruled that based upon State v. Taft, 143 W.Va. 365, 102
S.E.2d 152 (1958), there was insufficient evidence to prove the appellant intentionally drove
his vehicle while under the influence of alcohol. The Commissioner quotes Syllabus Point
1 of State v. Taft, supra, and defines "driving" by stating: "To constitute driving of an
automobile, within the meaning of Section 2 of Article 5, Chapter 129 of the 1951 Acts of
the Legislature, as amended, there must be an intentional movement of the automobile by the
The circuit court determined the Commissioner's order was clearly wrong, in
that Sergeant Carte did present substantial evidence to prove the appellant did drive a motor
vehicle while under the influence of alcohol. The court also found the Commissioner's order
resulted from an error of law, because Taft was decided approximately twenty-three years
prior to the adoption of W.Va. Code 17C-5A-1, et seq., which permits the civil revocation
of a driver's license. At the time Taft was decided, the proceedings were criminal in nature,
and the standard was beyond a reasonable doubt. We agree with the circuit court. Pursuant
to the APA, W.Va. Code 29A-5-4(g) (1964), the circuit court must reverse administrative
decisions which are affected by error of law or are clearly wrong.
Administrative revocation hearings are civil in nature, and the burden of proof is by a preponderance of the evidence. In syllabus point 2 of Albrecht v. State, 173 W.Va. 268, 314 S.E.2d 859 (1984), this Court discussed the standard by stating:
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.
The appellant contends the officer did not actually see him "drive." In State
v. Byers, 159 W.Va. 596, 224 S.E.2d 726, (1976), this Court stated that driving under the
influence of intoxicating liquor does not have to be committed in the presence of the officer
to justify an arrest. "W.Va. Code, 17C-5A-1, as amended, specifically provides that a lawful
arrest may be effected ... at the direction of the 'arresting law-enforcement officer having
reasonable grounds to believe the person to have been driving a motor vehicle ... while under
the influence of intoxicating liquor.'" Byers at 603, 224 S.E.2d at 731-32. We reiterated
in Bennett v.Coffman, 178 W.Va. 500, 502, 361 S.E.2d 465, 467 (1987), that "an officer
having reasonable grounds to believe that a person has been driving while drunk may make
a warrantless arrest for that offense even though the offense is not committed in his
presence." W.Va. Code 17C-5A-1a (a) (1994) does not require that a police officer
actually see or observe a person move, drive, or operate a motor vehicle while the officer is
physically present before the officer can charge that person with DUI under this statute, so
long as all the surrounding circumstances indicate the vehicle could not otherwise be located
where it is unless it was driven there by that person. In the present case, we believe the
officer had reasonable grounds to make the arrest. The vehicle was parked at a stop light
with the engine running and the transmission engaged, the appellant stated he had been
driving and admitted he had been drinking, and he failed to properly perform the field
sobriety tests. We believe this evidence is sufficient to show that the appellant operated a
motor vehicle upon a public street, 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 the appellant's driver's license for
driving under the influence of alcohol.
As an aside, we pause here to remark that this case would not have been before this Court except for the dedication and determination of a state police officer and a prosecuting attorney who were zealous in pursuing the enforcement of our drunk driving laws in order to keep one drunk driver off the road. Their persistence should be noted.
For the reasons stated above, we affirm the order of the Circuit Court of Berkeley County.
1. W.Va. Code 17C-5A-1(c) (1994) states in pertinent part:
(c) If, upon examination of the written statement of the officer and the tests results described in subsection (b) of this section, the commissioner shall determine that a person was arrested for an offense described in section two, article five of this chapter ..., and that the results of any secondary test or tests indicate that at the time the test or tests were administered the person had, in his or her blood, an alcohol concentration of ten hundredths of one percent or more, by weight, or at the time the person was arrested he or she was under the influence of alcohol, controlled substances or drugs, the commissioner shall make and enter an order revoking the person's license to operate a motor vehicle in this state.
2. W.Va. Code 17C-5A-2(a)(1994) states:
(a) Upon the written request of a person whose license to operate a motor vehicle in this state has been revoked or suspended under the provisions of section one [ 17C-5A-1] of this article..., the commissioner of motor vehicles shall stay the imposition of the period of revocation or suspension and afford the person an opportunity to be heard....
3. The results of the intoxilyer test were not admitted into evidence or made a part of the record.
4. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
5. The prosecuting attorney's office generally represents the interests of the Commissioner of the DMV. Here, the prosecuting attorney sought and received a waiver from the Commissioner to represent the interests of the arresting officer. We suggest this procedure should be followed in the future when these cases arise.