This is an appeal by the respondent below, Joseph Cicchirillo, Commissioner of the Division of Motor Vehicles (See footnote 1) (hereinafter DMV or Commissioner), of the February 12, 2009, final order of the Circuit Court of Marshall County in an administrative agency appeal. By the terms of the February 12, 2009, order, the revocation of the driver's license of the petitioner below, James L. Groves (hereinafter Appellee), for driving under the influence (hereinafter DUI) was reversed. The reason for the reversal of the license revocation centers on the lower court's finding that the Commissioner 's revocation order was not entirely based on findings established through the testimony of the charging officer at the DMV revocation hearing. Upon consideration of the parties' briefs and arguments in this proceeding, the record accompanying the appeal, as well as the pertinent authorities, the circuit court's order is reversed and DMV's administrative order revoking Appellee's driver's license is reinstated.
I received a complaint of a vehicle that had crashed on Roberts Ridge. I actually drove by once. I didn't see it. The ambulance saw it before I did. I came back by. At that time I noticed a vehicle had went over, that skidded over the guardrail on the other side. I got out and made contact with Mr. Groves. I asked him if he'd been drinking. He said coffee is what he answered.[ (See footnote 4) ] I assumed that he might be drinking (Inaudible.) the accident. I performed the horizontal gaze nystagmus test on the scene right there. Due to the weather conditions and the road way conditions and such I went ahead and transported him back to Marshall County Sheriff's Office to finish the tests. I recall I might have given him the nine step walk-and-turn test. I don't recall if I did or not due to the area. There's a line through it, so apparently I didn't. [. .] (Inaudible.) at the office I can't have somebody walk there. I did however perform the one-legged stand test. Based on that I felt he failed this test and then had him submit to the EC/IR [Intoximeter] test. I gave him a citation and he was released. He was further processed, fingerprinting and photograph.
Appellee and his counsel attended the hearing, but the deputy was not cross-examined nor was any testimony or documentary evidence proffered on Appellee's behalf. After considering the results of the hearing along with the evidence in the DMV file in this case (See footnote 5) , the Commissioner reinstated the initial revocation by final order dated September 22, 2008.
Appellee appealed the DMV final order to the circuit court. In the February 12, 2009, final order, the circuit court found that DMV's final order . . . [did] not comport with the testimony and evidence adduced at the . . . final hearing. The order reflects the lower court's finding that the automatic admission of the Intoximeter printout into evidence at the DMV hearing was in effect foreclosed by Appellee's timely challenge to the Intoximeter test results. (See footnote 6) The order went on to relate that the deputy's testimony did not provide a proper foundation for the admissibility of the Intoximeter results, nor did the testimony establish that the deputy had observed Appellee for twenty minutes before the test was administered or that a sterile disposable mouthpiece was utilized in the testing. The lower court also observed that the deputy offered no testimony regarding the BAC test, including whether Appellee failed the test.
Similarly, the lower court found that although the deputy testified at the hearing that he had administered the horizontal gaze nystagmus test on Appellee, the deputy did not say anything about Appellee's performance during the test or whether or not Appellee passed or failed that test. The court further noted that the testimony did not establish that the deputy had observed Appellee driving a motor vehicle.
The lower court's order concluded that
after a review of the record, including, but not limited to the transcript of the final administrative hearing and the arresting officer's testimony, that the arresting officer did not provide sufficient evidence to prove by a preponderance . . . that the petitioner drove a motor vehicle while under the influence of alcohol.
Based upon these findings and conclusions, the lower court reversed DMV's final order of
revocation. DMV subsequently filed its petition for appeal of the February 12, 2009, order
with this Court, for which review was granted on September 3, 2009.
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.
In the pending case, the lower court reversed the order of the administrative agency on the ground that the revocation was clearly wrong in view of the evidence.
Our review of a circuit court's decision involving an administrative agency order proceeds under the standard announced in Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996). In syllabus point one of Muscatell we held that [o]n 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. This deference extends to evidentiary findings made at administrative hearings. Syl. Pt. 1, Francis O. Day Co., Inc. v. Director, Div. Of Envtl. Protec., 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.). We undertake our review with these parameters in mind.
Without a doubt, the Legislature enacted W.Va. Code § 29A-5- 2(b) with the intent that it would operate to place into evidence in an administrative hearing [a]ll evidence, including papers, records, agency staff memoranda and documents in the possession of the agency, of which it desires to avail itself. . . . W.Va. Code § 29A-5-2-(b). Indeed, admission of the type of materials identified in the statute is mandatory.
Id. at 76, 631 S.E.2d at 634. We further noted in Crouch that the fact that a document is deemed admissible under the statute does not preclude the contents of the document from being challenged during the hearing. Rather, the admission of such a document into evidence merely creates a rebuttable presumption as to its accuracy. Id. at 76 n. 12, 631 S.E.2d at 634 n. 12.
In the present case, no effort was made to rebut the accuracy of any of the records, including the DUI Information Sheet, Implied Consent Statement or Intoximeter printout which were authenticated by the deputy and admitted into the record at the DMV hearing. Nonetheless, the lower court's order contains an explanation as to why the court determined that the Intoximeter printout had to be disregarded. The court found that Appellee had filed a timely challenge to the Intoximeter results and by so doing prevented automatic admission of the results of the test into evidence. (See footnote 7) However, the record does not reflect that Appellee actually raised any challenge to the Intoximeter test. The only thing in the record that Appellee filed regarding the Intoximeter test was a notice of intent to challenge the test results. The filing of this notice simply negated the presumption that the document would be considered as stipulated by the parties, thus leaving the matter open for challenge at the hearing. 91 C.S.R. 1 §3.4.2; W.Va. Code § 17C-5A-2(e). Our review of the record shows that Appellee neglected to follow through on raising any challenge to the Intoximeter results _ he never pointed to any particular concern, problem or irregularity regarding the administration of the Intoximeter test or performance of the equipment. It is clear from the transcript of the DMV hearing that no cross-examination was conducted of the deputy about his qualifications for administering the Intoximeter, and no evidence was offered refuting the reliability of the Intoximeter results due to inadequate preparation by the deputy or malfunction of the equipment.
It is noteworthy that DMV's final order of revocation does not expressly indicate reliance on the Intoximeter results in order to reach the conclusion that Appellee was driving under the influence. Although West Virginia Code § 17C-5A-1(c) requires that where a secondary chemical test has been administered the Commissioner must consider the results of that test in making the revocation decision, but the statute does not require the Commissioner to actually rely on such test results to determine whether the act of driving under the influence occurred. In instances of administrative license revocation, our decisions have clearly stated that there is no statutory requirement that proof of a motorist driving under the influence of alcohol be established by secondary chemical test results. See Syl. Pt. 1, Albrecht v. State, 173 W.Va. 268, 314 S.E.2d 859 (1984); Syl. Pt. 4, Coll v. Cline. What we have consistently held is that
[w]here 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). Syllabus Point 2, Carte v. Cline, 200 W.Va. 162, 488 S.E.2d 437 (1997).
Syl. Pt. 4, Lowe v. Cicchirillo, 223 W.Va. 175, 672 S.E.2d 311 (2008).
Appellee claims, nonetheless, that the lower court's reversal of the revocation order was proper because the officer's testimony did not establish any of the essential elements necessary to prove that he was driving a motor vehicle while under the influence of alcohol. He maintains that documentary evidence standing alone cannot uphold the license revocation pursuant to the holding of this Court in Ours v. West Virginia Department of Motor Vehicles, 173 W.Va. 376, 315 S.E.2d 634 (1984). Appellee's reliance on Ours is misplaced. We concluded in Ours (See footnote 8) that documentary evidence could not be the sole source upon which the DMV Commissioner based a decision under the circumstances in that case. The ruling was made strictly in the context of a particular financial responsibility statute - a statute which was subsequently repealed by the Legislature in 1988. Ours was not decided with regard to statutes governing administrative procedures for revoking drivers' licenses for DUI and hence is inapplicable to the case currently before us. Even if we were to find the Ours holding applicable to revocation hearings under Chapter 17A, Article 5A of the West Virginia Code, it is clear from the final revocation order in this case that the Commissioner relied on more than documentary evidence to reach the conclusion that Appellee drove a motor vehicle while under the influence of alcohol. (See footnote 9) Furthermore, it is readily apparent from the officer's testimony that his statements verified various facts in the documents which had been introduced into evidence. (See footnote 10)
DMV's final assignment of error regards the lower court finding that there was no evidence, testimonial or documentary, that established Appellee had driven a car on the night of the accident. DMV admits that it is clear from the record that the deputy came on the scene after the accident had occurred and Appellee was not in the car when the deputy arrived. There also is no indication in the record that there were any witnesses to the accident. DMV maintains, however, that it is not necessary for an arresting officer to have observed someone operating a motor vehicle in order to charge someone with driving under the influence. We agree.
This Court has recognized that statutory administrative procedures for revoking a driver's license for DUI are not limited to instances where an officer sees a person operating a vehicle while under the influence. Our holding in syllabus point three of Carte v. Cline, 200 W.Va. 162, 488 S.E.2d 437 (1997), specifically states that:
W.Va. Code § 17C-5A-1a(a) (1994)[ (See footnote 11) ] 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 case now before us, the hearing examiner was presented with evidence which showed that the deputy had reasonable grounds to believe that Appellee was the driver of the vehicle involved in the February 19, 2008, accident. See, Syl. Pt. 3, Cain v. West Virginia Department of Motor Vehicles, _____ W.Va. _____, _____S.E.2d _____ (No. 35132, filed May ____, 2010). It was established in the record that Appellee owned the vehicle and that the deputy came upon Appellee walking unsteadily along the berm of the road on the opposite side of the guardrail from where the car rested. Appellee was compliant during the investigation process and provided the deputy with his driver's license and vehicle registration information. Moreover, no one else was discovered at the scene of
the accident and there was no evidence offered that someone else was driving the vehicle on the night of the accident. Significantly, these facts were not contested at the administrative hearing. It is reasonable to conclude under these circumstances that Appellee was the driver of the vehicle involved in the accident.
As related at the outset of our discussion, the lower court reversed DMV's final order of revocation in this case on the grounds that the revocation was clearly wrong in view of the evidence. However, the lower court's view of the evidence revealed a preference for testimonial evidence over documentary evidence. Our law recognizes no such distinction in the context of drivers' license revocation proceedings. The DMV hearing examiner was presented with evidence that on the night of the accident, Appellee was found walking along the same side of a road where his car was found. The car came to rest along the side of the road after going over a guardrail. The record further established that Appellee was unsteady on his feet when the deputy approached him and that the deputy observed Appellee's speech was slurred and his eyes were bloodshot and glassy. In addition, the evidence reveals that Appellee was given two field sobriety tests, the HGN test and the one-leg stand test. The results from these tests were recorded by the deputy, showing that Appellee had failed in his performance. We find that these facts provide sufficient evidence to support the conclusion that Appellee was driving a motor vehicle while under the influence of alcohol, with or without the Intoximeter results, and thus represent an adequate basis for the Commissioner to revoke Appellee's driver's license. Consequently, we reverse the February 12, 2009, order of the Circuit Court of Marshall County.
[I]t is determined the record taken in its entirety demonstrates the Respondent elected not to present a defense supported by sufficient evidence to rebut the presumption created by the DUI Information Sheet and testimony of the Arresting Officer. As a result, after due consideration of the evidence presented, the record supports a finding by a preponderance of the evidence that the Respondent operated a motor vehicle in this State while under the influence of alcohol.