Patricia S. Reed, Comm. DMV v. George Zipf , 239 W. Va. 752 ( 2017 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2017 Term
_______________ FILED
No. 16-0132 October 12, 2017
released at 3:00 p.m.
_______________ RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
PATRICIA S. REED,
Commissioner, Division of Motor Vehicles,
Petitioner
v.
GEORGE ZIPF,
Respondent
____________________________________________________________
Appeal from the Circuit Court of Kanawha County
The Honorable Jennifer F. Bailey, Judge
Civil Action No. 14-AA-113
REVERSED AND REMANDED
____________________________________________________________
Submitted: October 4, 2017
Filed: October 12, 2017
Patrick Morrisey, Esq. William O. Merriman, Jr., Esq.
Attorney General Parkersburg, West Virginia
Janet E. James, Esq. Counsel for the Respondent
Senior Assistant Attorney General
Charleston, West Virginia
Counsel for the Petitioner
JUSTICE KETCHUM delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “A person who wishes to challenge official compliance with and
adherence to sobriety checkpoint operational guidelines shall give written notice of that
intent to the commissioner of motor vehicles prior to the administrative revocation
hearing which is conducted pursuant to W.Va.Code § 17C–5A–2.” Carte v. Cline, 194
W.Va. 233, 460 S.E.2d 48 (1995).
2. “In an administrative hearing conducted by the Division of Motor
Vehicles, a statement of an arresting officer, as described in W. Va. Code § 17C–5A–1(b)
(2004) (Repl.Vol.2004), that is in the possession of the Division and is offered into
evidence on behalf of the Division, is admissible pursuant to W. Va. Code § 29A–5–2(b)
(1964) (Repl.Vol.2002).” Crouch v. W.Va. Div. of Motor Vehicles, 219 W.Va. 70, 631
S.E.2d 628 (2006).
i
Justice Ketchum:
George Zipf was arrested at a sobriety checkpoint for driving under the
influence of alcohol. Based on his arrest, the Department of Motor Vehicles [DMV]
revoked his driver’s license. Mr. Zipf objected to his driver’s license revocation, and he
requested a hearing before the Office of Administrative Hearings [OAH].
The OAH rescinded Mr. Zipf’s driver’s license revocation because it found
insufficient evidence that his DUI arrest was lawful. After the DMV petitioned the
circuit court for an appeal, the circuit court upheld the OAH’s order.
We find that the circuit court erred in upholding the OAH’s order because
there was sufficient evidence that Mr. Zipf’s DUI arrest was lawful. Therefore, we
reverse the circuit court and remand this case to the circuit court for reinstatement of the
DMV’s order revoking Mr. Zipf’s driver’s license.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On July 28, 2012, Mr. Zipf was stopped at a sobriety checkpoint conducted
by the Vienna Police Department. According to Mr. Zipf’s DUI Information Sheet, the
officer who stopped him, Officer D.W. Lindsey, observed an odor of an alcoholic
beverage and that Mr. Zipf’s speech was slurred. Mr. Zipf was directed to exit his
vehicle and walk to a separate area designated for field sobriety testing, which was
conducted by another officer, J.A. Cole.
Officer Cole administered a series of field sobriety tests and a preliminary
breath test on Mr. Zipf. After Mr. Zipf failed all of these tests, Officer Cole arrested him
1
for DUI and transported him to the Vienna Police Department. At the police department,
Mr. Zipf failed a breath test administered to him almost two hours after he was stopped at
the checkpoint.
Based on his arrest, the DMV revoked Mr. Zipf’s driver’s license. He
objected to the revocation and requested a hearing before the OAH. On his hearing
request form, he marked that he wished to challenge the “Secondary chemical test of the
blood, breath, or urine” and the “Sobriety checkpoint operational guidelines.”
Two members of the Vienna Police Department testified at Mr. Zipf’s OAH
hearing: Sergeant K.L. Parrish, who supervised the sobriety checkpoint; and Officer
Cole, who conducted the field sobriety tests on Mr. Zipf and arrested him. Officer
Lindsey, who stopped Mr. Zipf at the sobriety checkpoint, was absent from the OAH
hearing.
Sergeant Parrish testified as to the manner in which the Vienna Police
Department conducted the sobriety checkpoint. For example, the location of the
checkpoint was selected on the basis of traffic volume, accident data, alcohol-related
arrests, and visibility to drivers and officers. Sergeant Parrish stated that the Vienna
Police Department erected signs notifying drivers of the checkpoint, and if a driver did
not wish to proceed through the checkpoint, he or she had opportunities to turn around
and avoid the checkpoint without being pursued by an officer. As to drivers who
proceeded through the checkpoint, officers were directed to stop every car to check for
signs of impairment. Drivers who exhibited signs of impairment were to be detained for
further investigation; everyone else was to be released as soon as possible.
2
Finally, Sergeant Parrish testified that he had a written copy of the sobriety
checkpoint guidelines on his person while he was on the witness stand. Mr. Zipf never
contested the correctness of Sergeant Parrish’s testimony that the Vienna Police
Department complied with its guidelines, presented evidence or argued that the
guidelines were not followed in any way, or requested that he be allowed to review the
guidelines.
Officer Cole testified regarding his interaction with Mr. Zipf leading up to
the DUI arrest. He conducted a series of field sobriety tests after Officer Lindsey
detected signs that Mr. Zipf may have been driving impaired. After Mr. Zipf failed all of
these tests, Officer Cole arrested him for DUI, transported him to the Vienna Police
Department, and at the police department, he administered a breath test. Mr. Zipf also
failed the breath test.
In addition, Mr. Zipf’s DUI Information Sheet was submitted into evidence.
The DUI Information Sheet lists Officer Lindsey as a witness to Mr. Zipf’s driving under
the influence, and it states that Officer Lindsey observed “slurred speech” and “an odor
of alcoholic beverages” coming from Mr. Zipf.
After the hearing, the OAH rescinded Mr. Zipf’s driver’s license revocation
because it found insufficient evidence that his DUI arrest was lawful. The OAH based its
decision on two grounds: (1) the sobriety checkpoint guidelines were not submitted into
evidence; and (2) the officer who stopped Mr. Zipf did not testify at the OAH hearing on
why he suspected Mr. Zipf drove under the influence of alcohol.
3
The DMV filed a petition with the circuit court to appeal the OAH order.
The circuit court denied the DMV’s petition, upheld the OAH’s order, and adopted the
OAH’s reasoning on whether there was sufficient evidence that Mr. Zipf’s arrest was
lawful. The DMV now appeals the circuit court’s order denying its petition for appeal.
II.
STANDARD OF REVIEW
We are asked to review a circuit court order affirming an administrative
decision by the OAH. We have held:
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) and review 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.1
III.
ANALYSIS
The circuit court found insufficient evidence that Mr. Zipf’s DUI arrest was
lawful because: (a) the sobriety checkpoint guidelines were not submitted into evidence;
and (b) the officer who stopped Mr. Zipf did not testify on why he suspected Mr. Zipf
had been driving under the influence.
1
Syl. Pt. 1, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996).
4
A. The sobriety checkpoint guidelines
The DMV argues that the circuit court erred by finding that it was required
to submit the sobriety checkpoint guidelines into evidence in order to show that Mr.
Zipf’s arrest was lawful. In its order, the circuit court stated, “in a case where the validity
of a sobriety checkpoint has been challenged, the written regulations themselves should
be submitted into evidence.” The circuit court did not address Mr. Zipf’s failure to
challenge the validity of the sobriety checkpoint.
The DMV acknowledges that Mr. Zipf provided the DMV with prehearing,
written notice that he intended to challenge the sobriety checkpoint guidelines, but it
asserts he did not follow through on his stated intent by making this challenge at his OAH
hearing. The DMV presented testimony by Sergeant Parrish, who supervised the
checkpoint at which Mr. Zipf was arrested. Sergeant Parrish testified in detail regarding
Vienna Police Department’s compliance with its sobriety checkpoint guidelines,
including the selection of its location, advance notice of the checkpoint to the public, and
how officers were instructed to interact with drivers. Mr. Zipf did not contest the
correctness of Sergeant Parrish’s testimony that the Vienna Police Department complied
with its guidelines, present argument or argue that the guidelines were not complied with
in any way, or request that he be allowed to review the guidelines. Because of Mr. Zipf’s
silence on this subject, the DMV argues that the guidelines were not necessary to resolve
any issue that Mr. Zipf disputed at his hearing, and they were not required to be
submitted into evidence.
5
The DMV was not required to submit the sobriety checkpoint guidelines
into evidence merely because Mr. Zipf provided prehearing notice that he intended to
challenge the guidelines. In Carte v. Cline,2 we addressed how notice of a driver’s intent
to challenge sobriety checkpoint guidelines affects the DMV’s burden at a driver’s
license revocation hearing:
[A] more viable and preferable alternative is to require
a person who wishes to challenge official compliance with
and adherence to sobriety checkpoint operational guidelines
to give written notice of that intent to the commissioner of
motor vehicles prior to the administrative revocation
hearing[.] . . . The State is thereby afforded an opportunity to
have the appropriate law enforcement officers present
testimony or other evidence of compliance with standard
operating procedures when noncompliance is alleged by the
person whose license has been revoked.3
In Carte, where the driver asserted that officers did not comply with
sobriety checkpoint guidelines, we found insufficient evidence of compliance because no
officer at the OAH hearing was able to fully testify on that subject, and the DMV
presented no other evidence on that issue.4
2
194 W.Va. 233, 460 S.E.2d 48 (1995).
3
Carte, 194 W.Va. at 239, 460 S.E.2d at 48 (emphasis and footnote added).
In accordance with our Carte Opinion, the OAH promulgated an administrative rule
requiring drivers who intend to challenge compliance with sobriety checkpoint guidelines
to provide the DMV notice of his or her intent, or else the challenge is waived. W.Va.
Code R. § 105-1-10.2(c)
4
Carte, 194 W.Va. at 238-39, 460 S.E.2d at 53-54.
6
Clearly then, the DMV must be prepared to present testimony or other
evidence of compliance with sobriety checkpoint guidelines when a driver provides the
DMV with timely, written and otherwise proper notice that he or she intends to challenge
the sobriety checkpoint guidelines. But we have never said that the DMV is required to
present both testimony and documentary evidence, such as the written guidelines, merely
because a driver notifies the DMV he or she may challenge the sobriety checkpoint
guidelines at the OAH hearing.
Here, the DMV presented testimony by Sergeant Parrish, who oversaw the
sobriety checkpoint at which Mr. Zipf was arrested. Sergeant Parrish testified in detail
regarding his police department’s compliance with its sobriety checkpoint guidelines,
including the location of the checkpoint, advance notice to the public, and how officers
were to interact with drivers. Therefore, the DMV satisfied its burden under Carte to be
prepared to submit testimony or other evidence on Vienna Police Department’s
compliance with its sobriety checkpoint guidelines on the night of Mr. Zipf’s arrest.
The only case, revealed by this Court’s research, wherein we required that
the sobriety checkpoint guidelines be submitted into evidence at a driver’s license
revocation hearing is White v. Miller.5 In that case, the driver repeatedly requested the
sobriety checkpoint guidelines for his review, and he disputed the correctness of the
5
228 W.Va. 797, 724 S.E.2d 768 (2012).
7
officer’s testimony that his police department conducted its sobriety checkpoint in
compliance with the guidelines.6 As we observed:
One matter in controversy during the administrative
hearing, for example, was whether Sergeant Williams’ email
to the media concerning the MacCorkle Avenue checkpoint
sufficiently alerted motorists in compliance with police
guidelines, that the designated alternative route would be
along Kanawha Boulevard. Without the standardized,
predetermined guidelines, such issues cannot be resolved.
Therefore, the finding of the Commissioner that Sergeant
Williams set up the checkpoint in accordance with the
standardized guidelines is clearly wrong.7
Thus, our holding in White hinged on the fact that the sobriety checkpoint guidelines
were necessary to resolve issues that the driver disputed at his OAH hearing.
We decline to extend our holding in White to this case, where Mr. Zipf did
not contest the correctness of Sergeant Parrish’s testimony that the Vienna Police
Department complied with its guidelines, present evidence or argue that the guidelines
were not followed in any way, or request that he be allowed to review the guidelines.
Simply, the sobriety checkpoint guidelines were not necessary to resolve any issue that
Mr. Zipf put into issue at his OAH hearing. Therefore, the sobriety checkpoint guidelines
were not required to be submitted into evidence to show that Mr. Zipf’s DUI arrest was
lawful. The circuit court erred by finding otherwise.
6
White, 228 W.Va. at 807-08, 724 S.E.2d at 778-79.
7
White, 229 W.Va. at 808, 724 S.E.2d at 779.
8
B. The testimony of the officer who stopped Mr. Zipf
The circuit court also found insufficient evidence that Mr. Zipf’s arrest was
lawful because there was “an absence of any information as to what criteria Officer
Lindsey [the stopping officer] utilized in determining that [Mr. Zipf] should be detained
for further investigation.”
Despite the circuit court’s assertion, Mr. Zipf’s DUI Information Sheet was
part of the record before the OAH, and it revealed that Officer Lindsey observed “slurred
speech” and an “odor of alcoholic beverages” coming from Mr. Zipf. On the admission
of a DUI Information Sheet as evidence in a driver’s license revocation hearing, we have
held:
In an administrative hearing conducted by the Division
of Motor Vehicles, a statement of an arresting officer as
described in W.Va. Code § 17C-5A-1(b) (2004) (Repl. Vol.
2004), that is in the possession of the Division and is offered
into evidence on behalf of the Division, is admissible
pursuant to W.Va. Code § 29A-5-2(b) (1964) (Repl. Vol.
2002).8
In a similar case, Dale v. Odum,9 the driver argued that the stopping officer
was required to testify at his OAH hearing, even though the stopping officer’s
observations were recorded on the DUI Information Sheet. We rejected this argument,
stating:
8
Syl. Pt. 3, Crouch v. W.Va. Div. of Motor Vehicles, 219 W.Va. 70, 631
S.E.2d 628 (2006).
9
233 W.Va. 601, 760 S.E.2d 415 (2014).
9
Although there was no testimonial evidence [by the
stopping officer] . . . our review of the record shows that
documentary evidence was submitted during the hearing that
established that the stop of Mr. Doyle’s vehicle by Officer
Anderson was valid. In that regard, the statement of the
arresting officer/DUI Information Sheet, which was made
part of the record, indicated that Mr. Doyle’s vehicle was
stopped because of “Failure to Obey Traffic Control Device.”
. . . .Consequently, there was unrebutted evidence admitting
during the administrative hearing that established a valid stop
of Mr. Doyle’s vehicle, and the hearing examiner’s finding to
the contrary was clearly wrong.10
We find no meaningful distinction between this case and Dale. Therefore,
it was error to rescind the revocation of Mr. Zipf’s driver’s license because the officer
who stopped him did not testify at the OAH hearing.
IV.
CONCLUSION
The circuit court erred by finding that the sobriety checkpoint guidelines
and the stopping officer’s testimony were required to show that Mr. Zipf’s DUI arrest
was lawful. Mr. Zipf did not contest the correctness of Sergeant Parrish’s testimony that
the Vienna Police Department complied with its sobriety checkpoint guidelines, present
evidence or argue that the guidelines were not followed in any way, or request that he be
allowed to review the guidelines. In addition, the reasons the stopping officer suspected
that Mr. Zipf drove under the influence were in Mr. Zipf’s DUI Information Sheet, which
10
Dale, 233 W.Va. at 608, 760 S.E.2d at 422.
10
was in the record before the OAH. We reverse the circuit court and remand this case to
the circuit court to reinstate the DMV order revoking Mr. Zipf’s driver’s license.
Reversed and Remanded.
11