1. '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). Syllabus Point 2, Choma v. West Virginia Div. of Motor Vehicles, 210 W.Va. 256, 557 S.E.2d 310 (2001).
2. Evidentiary findings made at an administrative hearing should not be reversed unless they are clearly wrong. Syllabus Point 1, Francis O. Day Co., Inc. v. Director, Div. of Envtl. Prot., 191 W.Va. 134, 443 S.E.2d 602 (1994).
3. 'The clearly wrong and the arbitrary and capricious standards of review are deferential ones which presume an agency's actions are valid as long as the decision is supported by substantial evidence or by a rational basis.' Syllabus Point 3, In re Queen, 196 W.Va. 442, 473 S.E.2d 483 (1996). Syllabus Point 2, Webb v. West Virginia Bd. of Medicine, 212 W.Va. 149, 569 S.E.2d 225 (2002).
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. Syllabus Point 2, Albrecht v. State, 173 W.Va. 268, 314 S.E.2d 859 (1984).
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. Syllabus
Point 4, In re Queen, 196 W.Va. 442, 473 S.E.2d 483 (1996).
This case is before this Court upon appeal of a final order of the Circuit Court of Raleigh County entered on January 30, 2004. In that order, the circuit court reversed the revocation of the driver's license of the appellee and petitioner below, Phillip S. Lilly, (See footnote 1) by the appellant, the West Virginia Department of Transportation, Division of Motor Vehicles (hereinafter, DMV). The DMV now appeals the reversal of the revocation of the appellee's driver's license believing that by a preponderance of the evidence there was sufficient proof to conclude the appellee had consumed alcoholic beverages and then operated a motor vehicle in the State while under the influence of alcohol. Based upon the parties' briefs and arguments in this proceeding as well as the pertinent authorities, the Circuit Court of Raleigh County's January 30, 2004, order is reversed and this case is remanded with directions.
Lilly then attempted to administer a series of field sobriety tests, consisting
of: horizontal gaze nystagmus; walk-and-turn; one-leg-stand; and a preliminary
test of the breath. According to Deputy Lilly, the appellee only attempted the
one-leg-stand test and then refused to participate in any additional field sobriety
tests. Based upon the appellee's noticeably impaired condition, his poor performance
on the one field sobriety test, and his refusal to submit to additional field
sobriety testing, Deputy Lilly arrested him for driving under the influence of
alcohol and transported him to the Raleigh County Sheriff's Department in Beckley,
Once at the sheriff's office, Deputy Lilly read to the appellee a written document containing the penalties for refusing to submit to a designated secondary chemical test and informed him of the fifteen-minute time limit for refusal as required by W.Va. Code § 17C-5-4 (See footnote 2) and § 17C-5-7. (See footnote 3) Deputy Lilly also testified that he provided a written copy of the Implied Consent Statement to the appellee and then asked him to submit to a secondary chemical test of the breath. The appellee advised Deputy Lilly that he would not submit to such a test. After twenty minutes had passed, Deputy Lilly again asked the appellee to submit to a secondary chemical test of the breath; however, for the second time, the appellee advised the deputy that he would not submit to such a test. Fifteen minutes later, Deputy Lilly asked the appellee to submit to a secondary chemical test of the breath and for the third time, the appellee refused.
On January 31, 2002, following a review of the Statement of Deputy Lilly, the DMV issued an initial Order of Revocation concurrently revoking the appellee's privilege to drive in West Virginia for ten years for Driving Under the Influence of Alcohol and Implied Consent. (See footnote 4) On January 30, 2004, the Circuit Court of Raleigh County reversed the final order of the Commissioner of the DMV, thereby restoring driving privileges to the appellee. The circuit court found that the field sobriety test results had no evidentiary weight because even though Deputy Lilly had reasonable grounds and probable cause to investigate the appellee in the truck in the backyard of the residence, the deputy did not testify that he had been properly trained to administer field sobriety tests. Therefore, the circuit court concluded that Deputy Lilly failed to lay an adequate foundation for the introduction of the results of those tests. The circuit court also concluded that the appellee was not provided with a written copy of the Implied Consent Statement containing the penalties for refusal to submit to a secondary chemical test as required by W.Va. Code § 17C-5-4 and § 17C-5-7. As such, the circuit court refused to consider the appellee's refusal to submit to the secondary chemical test after being asked to do so on three occasions by Deputy Lilly. Moreover, the circuit court found that the only evidence presented it recognized as credible was Deputy Lilly's observations that the appellee had bloodshot and glassy eyes, slurred speech, and an odor of alcohol on his breath. The circuit court, however, found that such evidence did not rise to the level of sufficient proof under the preponderance of the evidence test standard to conclude that the appellee had consumed alcoholic beverages and then operated a motor vehicle in the State while under the influence of alcohol. This appeal followed.
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),
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). In addition, 'The clearly wrong and the arbitrary and capricious standards of review are deferential ones which presume an agency's actions are valid as long as the decision is supported by substantial evidence or by a rational basis.' Syllabus Point 3, In re Queen, 196 W.Va. 442, 473 S.E.2d 483 (1996). Syllabus Point 2, Webb v. West Virginia Bd. of Medicine, 212 W.Va. 149, 569 S.E.2d 225 (2002). Thus, [t]he scope of review under the arbitrary and capricious standard is narrow, and a court is not to substitute its judgment for that of the hearing examiner. Martin, 195 W.Va. at 304, 465 S.E.2d at 406.
Thus, with these standards in mind, we consider the parties' arguments.
any person under arrest as specified in section four of this article refuses
to submit to any secondary chemical test, the tests shall not be given: Provided,
That prior to such refusal, the person is given a written statement advising
him that his refusal to submit to the secondary test finally designated will
result in the revocation of his license to operate a motor vehicle in this state
for a period of at least one year and up to life. If a person initially refuses
to submit to the designated secondary chemical test after being informed in writing
of the consequences of such refusal, he shall be informed orally and in writing
that after fifteen minutes said refusal shall be deemed to be final and the arresting
officer shall after said period of time expires have no further duty to provide
the person with an opportunity to take the secondary test.
The DMV maintains that Deputy Lilly met and exceeded the statutory requirements for presenting implied consent information and opportunities to submit to the Intoxilyzer test. Conversely, the appellee argues that the West Virginia Code requires that oral and written information must be given to the arrestee and when such information must be given. He then states that based upon the evidence of record it cannot be established whether the officer in this case complied with the requirements of W.Va. Code § 17C-5-4 and § 17C-5-7.
Next, the DMV contends that the circuit court erred in finding that there was insufficient evidence under Albrecht v. State, 173 W.Va. 268, 314 S.E.2d 859 (1984), to sustain a revocation based upon Driving Under the Influence of Alcohol. The DMV states that under Albrecht, the State must show, by a preponderance of the evidence, that a driver operated a motor vehicle upon a public street or highway, exhibited symptoms of intoxication, and consumed alcoholic beverages. The DMV says that such a showing was made in this case. The DMV also argues that the circuit court failed to consider all of the circumstances which led the Commissioner to find that the appellee was Driving Under the Influence of Alcohol. In response, the appellee states that the circuit court properly excluded the field sobriety and secondary chemical tests. The appellee further contends that the remaining evidence only supports that he was operating a vehicle in a residential yard and not a public street. He further maintains that when he admitted that he had gotten a little off the road that the record does not reflect what type of roadway to which he was referring.
After fully reviewing the evidence, we believe that the circuit court erred in reversing the DMV's revocation of the appellee's license. In Syllabus Point 2 of Albrecht, this Court wrote:
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.
In this case, Deputy Lilly followed the vehicle tracks into the backyard where the appellee was still sitting in the truck revving the engine and spinning his wheels trying to get back on the public roadway. Initially, the circuit court concluded that Deputy Lilly did not lay a proper foundation for the field sobriety tests and thereafter refused to afford any evidentiary weight to those tests. The circuit court failed to mention in its January 30, 2004, order, however, that the appellee flatly refused to perform or attempt any additional tests after he failed miserably on the first field sobriety test offered by the officer. Moreover, the appellee's noncompliance with Deputy Lilly's initial investigation of his impairment was only a precursor to the appellee's further refusals of the secondary chemical test offered at the sheriff's office. In addition, with regard to the appellee's refusal of the secondary chemical test, we find the circuit court's conclusion that: Close scrutiny of the entirety of the record leads this Court to conclude that [the appellee] was not provided with a written copy of the Implied Consent Statement, to be completely unsupported by the record. In fact, the only evidence of record on this issue was Deputy Lilly's testimony which clearly demonstrated that the officer gave the Implied Consent form to the appellee. As there was no testimony in conflict with the officer, we see no reason to contradict his testimony. Furthermore, upon a thorough review of the record, we believe that Deputy Lilly went above and beyond his required duties both in the backyard where the appellee refused several field sobriety tests and at the sheriff's office when he offered the secondary chemical test to the appellee on three separate occasions.
In this case, the appellee refused most of the field sobriety tests, three separate secondary chemical tests, reeked of alcohol, slurred his words, and stumbled when he walked. In Syllabus Point 4 of In re Queen, 196 W.Va. 442, 473 S.E.2d 483 (1996), we held that: '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. We find that there was substantial evidence for the revocation of the appellee's driver's license and conclude that the DMV's findings were not clearly wrong in light of all of the probative and reliable evidence in the record. We therefore reverse the circuit court's decision.