Patricia S. Reed, Comm. W.Va. Division of Motor Vehicles v. Joseph D. Pompeo , 810 S.E.2d 66 ( 2018 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2018 Term FILED
_______________
February 8, 2018
released at 3:00 p.m.
No. 17-0175 EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
_______________ OF WEST VIRGINIA
PATRICIA S. REED, COMMISSIONER,
WEST VIRGINIA DIVISION OF MOTOR VEHICLES,
Respondent Below, Petitioner
v.
JOSEPH D. POMPEO,
Petitioner Below, Respondent
____________________________________________________________
Appeal from the Circuit Court of Ohio County
The Honorable David J. Sims, Judge
Civil Action No. 16-C-158
REVERSED AND REMANDED
____________________________________________________________
Submitted: January 10, 2018
Filed: February 8, 2018
Patrick Morrisey, Esq. Robert G. McCoid, Esq.
Attorney General McCamic, Sacco & McCoid, P.L.L.C.
Janet E. James, Esq. Wheeling, West Virginia
Assistant Attorney General Counsel for the Respondent
Charleston, West Virginia
Counsel for the Petitioner
JUSTICE WALKER delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “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 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.”
Syllabus Point 1, Muscatell v. Cline, 196 W. Va. 588, 474 S.E.2d 518 (1996).
2. “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.” Syllabus Point 2, Muscatell v. Cline, 196
W. Va. 588, 474 S.E.2d 518 (1996).
3. “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
i
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.’” Syllabus Point 2, Shepherdstown
Volunteer Fire Dep’t v. State ex rel. State of W. Va. Human Rights Comm’n, 172 W. Va.
627, 309 S.E.2d 342 (1983).
4. “Police officers may stop a vehicle to investigate if they have an
articulable reasonable suspicion that the vehicle is subject to seizure or a person in the
vehicle has committed, is committing, or is about to commit a crime. To the extent State
v. Meadows, 170 W. Va. 191, 292 S.E.2d 50 (1982), holds otherwise, it is overruled.”
Syllabus Point 1, State v. Stuart, 192 W. Va. 428, 452 S.E.2d 886 (1994).
5. “When evaluating whether or not particular facts establish reasonable
suspicion, one must examine the totality of the circumstances, which includes both the
quantity and quality of the information known by the police.” Syllabus Point 2, State v.
Stuart, 192 W. Va. 428, 452 S.E.2d 886 (1994).
6. “Upon a challenge by the driver of a motor vehicle to the admission
in evidence of the results of the horizontal gaze nystagmus test, the police officer who
administered the test, if asked, should be prepared to give testimony concerning whether
he or she was properly trained in conducting the test, and assessing the results, in
accordance with the protocol sanctioned by the National Highway Traffic Safety
ii
Administration and whether, and in what manner, he or she complied with the training in
administering the test to the driver.” Syllabus Point 2, White v. Miller, 228 W. Va. 797,
724 S.E.2d 768 (2012).
7. “A person’s driver’s license may be suspended under W. Va. Code,
17C-5-7(a) [1983] for refusal to take a designated breathalyzer test.” Syllabus Point 2,
Moczek v. Bechtold, 178 W. Va. 553, 363 S.E.2d 238 (1987).
iii
WALKER, Justice:
Joseph D. Pompeo’s driver’s license was revoked as a result of a traffic stop
by Wheeling police officers. The officers observed that Mr. Pompeo appeared to be under
the influence of alcohol and performed three field sobriety tests, all of which Mr. Pompeo
failed, and a preliminary breath test, which he refused. After his arrest, he claimed that he
was unable to perform a secondary chemical test as a result of an undisclosed breathing
condition. Mr. Pompeo unsuccessfully challenged the revocation of his license with the
Office of Administrative Hearings (OAH) and then appealed to the Circuit Court of Ohio
County. The circuit court ordered that Mr. Pompeo’s driving privileges be restored on the
grounds that (1) the officers lacked reasonable grounds to extend the time of the traffic
stop; (2) there was no probable cause to arrest Mr. Pompeo; and (3) Mr. Pompeo’s failure
to submit to the secondary chemical test was not a refusal sufficient for revocation. We
find the OAH’s findings were not clearly wrong and that the circuit court erroneously
disregarded the evidence upon which the OAH relied and abused its discretion in
substituting its judgment for that of the fact finder below. We reverse and remand for
reinstatement of the administrative order revoking Mr. Pompeo’s driver’s license.
I. FACTUAL AND PROCEDURAL BACKGROUND
On August 4, 2010, Corporal K. Prager and Officer Ezekial Goddard of the
Wheeling Police Department were on routine road patrol when they observed Mr. Pompeo
operating a motor vehicle with a burned-out headlight. The officers initiated a traffic stop
only to inform the driver, Mr. Pompeo, of the faulty equipment; at that point, they observed
1
nothing indicative of impairment. Officer Goddard asked Mr. Pompeo for his driver’s
license, registration, and proof of insurance.
Upon interacting with Mr. Pompeo, the officers immediately observed signs
of impairment. Though Mr. Pompeo readily provided his registration and proof of
insurance, he avoided making eye contact and only produced his driver’s license after being
prompted twice. Though Officer Goddard testified that Mr. Pompeo’s speech was normal,
he also testified that he smelled alcohol on Mr. Pompeo’s breath.
Corporal Prager then approached the vehicle and, like Officer Goddard,
detected alcohol on Mr. Pompeo’s breath and further noted that his eyes appeared
bloodshot. Mr. Pompeo admitted to both Officer Goddard and Corporal Prager that he had
been drinking before operating the motor vehicle. Based on their observations and Mr.
Pompeo’s admission, Corporal Prager had reason to believe Mr. Pompeo was driving under
the influence of alcohol and asked Mr. Pompeo to exit the vehicle.
Corporal Prager administered three field sobriety tests—the horizontal gaze
nystagmus (HGN), the walk-and-turn, and the one-leg stand—and attempted to administer
a preliminary breath test to Mr. Pompeo. As to the HGN test, Corporal Prager documented
on the DUI Information Sheet that he observed lack of smooth pursuit and distinct and
sustained nystagmus at maximum deviation in both eyes. At the subsequent administrative
hearing, however, the OAH found that Corporal Prager did not administer the HGN in strict
2
compliance with the National Highway Traffic Safety Administration (NHTSA) guidelines
and so did not consider the results of that test in this matter.
As to the walk-and-turn test, Corporal Prager documented that he observed
Mr. Pompeo step off the line of walk, miss heel-to-toe,1 and make an improper turn.
Finally, as to the one-leg stand test, Corporal Prager documented that he observed Mr.
Pompeo begin the test before being instructed to do so, sway while balancing, and lower
his raised foot to the ground twice.
Mr. Pompeo also refused to provide a sufficient sample for the preliminary
breath test. After the field sobriety tests were administered (and failed) and the preliminary
breath test was administered (and refused), Mr. Pompeo was arrested for driving under the
influence (DUI). After arresting Mr. Pompeo, the officers searched his vehicle and
observed a “big wet spot on the floor.” They also found an empty beer can under the
passenger seat.
Mr. Pompeo was transported to the Wheeling Police Department for
administration of the secondary chemical test, where he signed the Implied Consent
Statement, which specifies the penalties for refusing to submit to a designated secondary
1
Corporal Prager could not specifically recall the distance by which Mr. Pompeo
missed touching heel-to-toe, but testified during the OAH hearings that he typically allows
a leeway of a few inches before deeming that a suspect performed the test incorrectly.
3
chemical test and the fifteen-minute time limit for refusal. Within the fifteen-minute time
limit, Corporal Prager provided Mr. Pompeo with three opportunities to take the secondary
chemical test. Mr. Pompeo placed his mouth on the tube attached to the secondary
chemical test, but Corporal Prager testified that Mr. Pompeo did not make a legitimate
effort to provide a sufficient breath sample.
Even after the requisite fifteen minutes elapsed, Corporal Prager gave Mr.
Pompeo an additional opportunity to submit to the secondary chemical test, but he again
failed to provide a sufficient breath sample. The officers testified that Mr. Pompeo advised
them that he suffered from an unidentified breathing problem. Corporal Prager further later
testified that, based on his observations, Mr. Pompeo was perfectly capable of providing
the necessary sample. Corporal Prager testified that Mr. Pompeo did not appear winded at
any time, including while getting out of the cruiser, walking up stairs into the Wheeling
Police Department, or walking down a hall into the testing room. As a result, Corporal
Prager deemed Mr. Pompeo’s actions to be a refusal of the secondary chemical test and
submitted a DUI Information Sheet to the DMV.
On August 25, 2010, the DMV revoked Mr. Pompeo’s driving privileges for
a period of six months and a concurrent period of one year, effective September 29, 2010.
Mr. Pompeo timely requested a hearing before the OAH. In its Final Order, the OAH
affirmed the revocation of Mr. Pompeo’s license for DUI and for refusing to submit to the
secondary chemical test.
4
Mr. Pompeo appealed the OAH’s determination in the Circuit Court of Ohio
County, which ordered that the OAH’s Final Order be vacated and Mr. Pompeo’s driving
privileges be restored and reinstated. The DMV now appeals the circuit court’s order and
seeks reinstatement of the OAH’s order revoking Mr. Pompeo’s license.
II. STANDARD OF REVIEW
We have previously outlined the appropriate standards for our review of a
circuit court’s order deciding an administrative appeal as follows:
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 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.2
We have also noted that “[i]n 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.”3 With these standards in mind, we
consider the parties’ arguments.
2
Syl. Pt. 1, Muscatell v. Cline, 196 W. Va. 588, 474 S.E.2d 518 (1996).
3
Id. at Syl. Pt. 2.
5
III. DISCUSSION
In order to resolve this matter, we must determine whether the circuit court
erred in vacating the OAH’s decision to revoke Mr. Pompeo’s driving privileges. We
have provided clear guidance for courts reviewing an administrative agency’s order:
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.”4
In the event one of these standards is not present, a reviewing court is left
with two options: affirm the order of the agency or remand the case for further
proceedings.5 The circuit court’s reversal was premised on two of these standards—
4
Syl. Pt. 2, Shepherdstown Volunteer Fire Dep’t v. State ex rel. State of W. Va.
Human Rights Comm’n, 172 W. Va. 627, 309 S.E.2d 342 (1983) (quoting W. Va. Code §
29A-5-4(g)).
5
W. Va. Code § 29A-5-4(g) (2017) provides:
6
“clearly wrong in view of the reliable, probative and substantial evidence on the whole
record” and “arbitrary or capricious or characterized by abuse of discretion.”
Accordingly, we address only those points in our analysis. This Court has also directed
that reviewing courts should consider “credibility determinations by the finder of fact in
an administrative proceeding [to] [be] ‘binding unless patently without basis in the
record.’”6
Framing our analysis, West Virginia Code § 17C-5A-2(f) requires that the
OAH make three predicate findings after considering the evidence in an administrative
proceeding. Those findings, in pertinent part, require proof that: (1) the arresting officer
had reasonable grounds to believe that the person drove while under the influence of
The court may affirm the order or decision of the agency
or remand the case for further proceedings. It 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, decision 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.
6
Webb v. West Virginia Bd. of Medicine, 212 W. Va. 149, 156, 569 S.E.2d 225, 232
(2002) (quoting Martin v. Randolph County Bd. of Educ., 195 W. Va. 297, 304, 465 S.E.2d
399, 406 (1995).
7
alcohol; (2) the person was lawfully placed under arrest for a DUI offense; and (3) the tests,
if any, were administered in accordance with the law.7 In overturning the revocation order
in this matter, the circuit court found that all three predicate findings were lacking in this
case. Specifically, the court concluded that: (A) there was insufficient evidence to support
7
The 2010 version of West Virginia Code § 17C-5A-2(f) applies to this case and
provides:
In the case of a hearing in which a person is accused of
driving a motor vehicle while under the influence of alcohol,
controlled substances or drugs, or accused of driving a motor
vehicle while having an alcohol concentration in the person's
blood of eight hundredths of one percent or more, by weight,
or accused of driving a motor vehicle while under the age of
twenty-one years with an alcohol concentration in his or her
blood of two hundredths of one percent or more, by weight, but
less than eight hundredths of one percent, by weight, the Office
of Administrative Hearings shall make specific findings as to:
(1) Whether the investigating law-enforcement officer had
reasonable grounds to believe the person to have been driving
while under the influence of alcohol, controlled substances or
drugs, or while having an alcohol concentration in the person's
blood of eight hundredths of one percent or more, by weight,
or to have been driving a motor vehicle while under the age of
twenty-one years with an alcohol concentration in his or her
blood of two hundredths of one percent or more, by weight, but
less than eight hundredths of one percent, by weight; (2)
whether the person was lawfully placed under arrest for an
offense involving driving under the influence of alcohol,
controlled substances or drugs, or was lawfully taken into
custody for the purpose of administering a secondary
test: Provided, That this element shall be waived in cases
where no arrest occurred due to driver incapacitation; (3)
whether the person committed an offense involving driving
under the influence of alcohol, controlled substances or drugs,
or was lawfully taken into custody for the purpose of
administering a secondary test; and (4) whether the tests, if any,
were administered in accordance with the provisions of this
article and article five of this chapter.
8
the officers’ extension of the roadside encounter with Mr. Pompeo; (B) no objective
evidence was developed at the roadside to substantiate that Mr. Pompeo was driving under
the influence; and (C) the officer’s opinion testimony that Mr. Pompeo was “feigning an
attempt to blow” into the secondary chemical testing device was unsubstantiated by the
evidence. We consider each in turn.
A. Initiation of the Traffic Encounter and Sufficiency of the Evidence to Extend
Detention
The circuit court did not disturb the OAH’s finding that the officers had
reasonable grounds to initiate a traffic encounter with Mr. Pompeo due to his burned-out
headlight. However, the circuit court found that insufficient evidence supported the
officers’ decision to extend the stop (and test Mr. Pompeo for the presence of alcohol).
Consequently, we must first consider whether the facts of the stop establish the necessary
reasonable grounds, as required by W. Va. Code § 17C-5A-2(f)(1), for the officers to have
extended Mr. Pompeo’s detention beyond the period of time necessary to inform him of
the burned-out headlight.
We have held that “[p]olice officers may stop a vehicle to investigate if they
have an articulable reasonable suspicion that the vehicle is subject to seizure or a person in
the vehicle has committed, is committing, or is about to commit a crime….”8 We have
defined reasonable suspicion as:
8
Syl. Pt. 1, State v. Stuart, 192 W. Va. 428, 452 S.E.2d 886 (1994).
9
[A] less demanding standard than probable cause not only in
the sense that reasonable suspicion can be established with
information that is different in quantity or content than that
required to establish probable cause, but also in the sense that
reasonable suspicion can arise from information that is less
reliable than that required to show probable cause.9
Further, we have instructed that “[w]hen evaluating whether or not particular facts establish
reasonable suspicion, one must examine the totality of the circumstances, which includes
both the quantity and quality of the information known by the police.”10
During the OAH hearing, the officers testified that although Mr. Pompeo
immediately provided his registration and proof of insurance, the officers had to prompt
him twice before he produced his driver’s license. The officers further testified that
although Mr. Pompeo’s speech was normal, he avoided making eye contact and his eyes
were bloodshot. Additionally, the officers testified that Mr. Pompeo’s breath smelled of
alcohol and that he admitted to drinking earlier prior to operating the motor vehicle. Upon
these observations, the officers concluded—and the OAH agreed—there was sufficient
evidence for the officers to believe that Mr. Pompeo was committing a crime (namely,
driving under the influence) and, therefore, the officers properly extended the stop.
9
Muscatell, 196 W. Va. at 596, 474 S.E.2d at 526 (quoting Stuart, 192 W. Va. at
432, 452 S.E.2d at 890).
10
Syl. Pt. 2, Stuart, 192 W. Va. at 428, 452 S.E.2d at 886.
10
The circuit court, however, concluded that these factual findings of the OAH
were clearly wrong. In order to sustain such a finding, the circuit court is required to show
that these findings are “patently without basis in the record.”11 Although a reasonable
suspicion analysis requires that “one must examine the totality of the circumstances,” the
circuit court examined each piece of evidence indicative of impairment in isolation.12
The circuit court found that “the odor of an alcoholic beverage on one’s
breath can exist in the absence of being under the influence.” As to Mr. Pompeo’s
bloodshot eyes, the circuit court found that this issue “may be ascribed to any number of
innocent reasons” and that “counsel’s eyes were noted to have blood in them and that
Patrolman Prager did not believe counsel to be intoxicated.”13 Additionally— in direct
contradiction of the record—the circuit court found that Mr. Pompeo “…produced his
driver’s information in an unremarkable fashion that was in no manner indicative of
impairment.”
We find that the circuit court erroneously disregarded the evidence of
impairment provided by the officers’ testimony by giving undue weight to irrelevant and
11
Webb v. West Virginia Bd. of Med., 212 W. Va. at 156, 569 S.E.2d at 232.
12
Syl. Pt. 2, Stuart, 192 W. Va. at 428, 452 S.E.2d at 886.
13
This finding is predicated on evidence elicited on cross-examination by Mr.
Pompeo’s counsel: “Q:…How do my eyes look right now? A: They look fine to me, sir.
Q: No blood in them at all? A: Just a little bit under maybe your right eyeball. Q: There is
some blood there. You don’t suspect I’m under the influence of alcohol? A: No, sir.”
11
speculative evidence and by viewing each piece of evidence in isolation, rather than
looking at the totality of the circumstances. In light of the evidence before the OAH, the
OAH’s findings are not clearly wrong and, as such, we find that the officers had reasonable
grounds to extend the traffic encounter with Mr. Pompeo beyond the amount of time
necessary simply to inform him of a burned-out headlight.
B. Probable Cause to Arrest for DUI
West Virginia Code § 17C-5A-2(f)(2) requires the OAH to make a finding
that the arrest for DUI was lawful.14 To be lawful, the arrest must be supported by probable
cause.15 As the United States Supreme Court has stated:
This Court repeatedly has explained that “probable cause” to
justify an arrest means facts and circumstances within the
officer’s knowledge that are sufficient to warrant a prudent
person, or one of reasonable caution, in believing, in the
circumstances shown, that the suspect has committed, is
committing, or is about to commit an offense.16
14
W. Va. Code § 17C-5A-2(f)(2), in pertinent part, requires the OAH to make
specific findings as to: “whether the person was lawfully placed under arrest for an offense
involving driving under the influence of alcohol…or was lawfully taken into custody for
the purpose of administering a secondary test.” See also Dale v. Ciccone, 233 W. Va. 652,
658-59, 760 S.E.2d 466, 472-73 (2014).
15
Ciccone, 233 W. Va. at 661, 760 S.E.2d at 475.
16
Michigan v. DeFillippo, 443 U.S. 31, 37 (1979) (citations omitted).
12
Probable cause is a “practical, nontechnical conception that deals with the factual and
practical considerations of everyday life on which reasonable and prudent men, not legal
technicians, act.”17
In this case, we find that there was probable cause for the officers to place
Mr. Pompeo under arrest for the offense of driving under the influence. In addition to the
evidence that provided reasonable grounds for the officers to extend the traffic encounter,
we may also consider the field sobriety tests—the HGN, the walk-and-turn, and the one-
leg stand—and the preliminary breath test in analyzing probable cause, although “[n]either
the DUI statutes nor our case law require a [preliminary breath test] or any particular field
sobriety test to establish that a driver was under the influence for purposes of administrative
revocation.”18
This Court regularly has addressed the admissibility of field sobriety test
results in administrative license revocation cases. In Syllabus Point 2 of White v. Miller,
we held that
[u]pon a challenge by the driver of a motor vehicle to
the admission in evidence of the results of the horizontal gaze
nystagmus test, the police officer who administered the test, if
asked, should be prepared to give testimony concerning
whether he or she was properly trained in conducting the test,
17
Maryland v. Pringle, 540 U.S. 366, 370 (2003) (citations omitted).
18
Reed v. Hill, 235 W. Va. 1, 9, 770 S.E.2d 501, 509 (2015).
13
and assessing the results, in accordance with the protocol
sanctioned by the National Highway Traffic Safety
Administration and whether, and in what manner, he or she
complied with that training in administering the test to the
driver.19
We have further held that when an officer fails to satisfy some requirement of a field
sobriety test, such failure goes “to the weight of the evidence, not its admissibility.”20
At the administrative hearing, the OAH found that Corporal Prager did not
administer the HGN in strict compliance with the NHTSA guidelines and did not consider
the results of the test in this matter. Specifically, Corporal Prager admitted that he did not
count the number of sweeps and holds as required by the guidelines. Because of the non-
compliance, it was not clearly wrong for the OAH to accord no weight to the HGN test
results. And the circuit court was within its authority to rely on this finding from the OAH.
However, the OAH found the officers’ testimony regarding Mr. Pompeo’s
performance of the walk-and-turn and the one-leg stand to be credible. Corporal Prager
testified that Mr. Pompeo failed the walk-and-turn by stepping off the line of walk, missing
heel-to-toe, and making an improper turn. Though the officer could not specifically recall
the distance by which Mr. Pompeo missed touching heel-to-toe, the officer testified that he
19
Syl. Pt. 2, White v. Miller, 228 W. Va. 797, 724 S.E.2d 768 (2012).
20
Dale v. McCormick, 231 W. Va. at 633-34, 749 S.E.2d 232-33 (2013) (quoting In
re Flood Litigation Coal River Watershed, 222 W. Va. 574, 582, 668 S.E.2d 203, 211
(2008)).
14
typically allows a leeway of a few inches before failing a test-taker. The officer testified
that Mr. Pompeo failed the one-leg stand by starting the test before being instructed to do
so, swaying while balancing, and lowering his raised foot to the ground not once, but twice.
Nonetheless, the circuit court ignored the OAH’s determination that Corporal
Prager testified credibly as to Mr. Pompeo’s failures and disregarded this evidence because
Corporal Prager was unsure whether he had asked Mr. Pompeo if he understood the
instructions. Importantly, Mr. Pompeo offers nothing to show that he did not understand.
Regardless, the circuit court erred in excluding this evidence altogether, as we have clearly
stated that failures such as this go to the “weight of the evidence, not the admissibility.”21
The circuit court further excluded Mr. Pompeo’s refusal of the preliminary
breath test because “the officers did not wait the requisite fifteen (15) minutes before giving
the test.” A motorist is deemed to have given implied consent for a [preliminary breath
test] for purposes of determining alcohol concentration.22 The statute provides that “such
21
Id.22
The 2010 version of West Virginia Code §17C-5-4(a) applies to this case and
provides:
Any person who drives a motor vehicle in this state is
considered to have given his or her consent by the operation of
the motor vehicle to a preliminary breath analysis and a
secondary chemical test of either his or her blood, breath or
urine for the purposes of determining the alcoholic content of
his or her blood.
15
breath analysis must be administered as soon as possible after the law-enforcement officer
has a reasonable belief that the person has been driving while under the influence of
alcohol….”23, but also directs that a preliminary breath test “must be administered with a
device and in a manner approved by the Department of Health for that purpose.”24 Though
the statute requires immediacy in performing the test, it also requires compliance with the
methods and standards approved by the Bureau for Public Health of the Department of
Health. To that end, we have upheld the Bureau for Public Health’s legislative rule
providing that “[t]he law enforcement officer shall prohibit the person from drinking
23
W. Va. Code § 17C-5-5 (2017), in full, states:
When a law-enforcement officer has reason to believe a
person has committed an offense prohibited by section two [§
17C-5-2] of this article or by an ordinance of a municipality of
this State which has the same elements as an offense described
in said section two of this article, the law-enforcement officer
may require such person to submit to a preliminary breath
analysis for the purpose of determining such person’s blood
alcohol content. Such breath analysis must be administered as
soon as possible after the law-enforcement officer has a
reasonable belief that the person has been driving while under
the influence of alcohol, controlled substances or drugs. Any
preliminary breath analysis required under this section must be
administered with a device and in a manner approved by the
Department of Health for that purpose. The results of a
preliminary breath analysis shall be used solely for the purpose
of guiding the officer in deciding whether an arrest should be
made. When a driver is arrested following a preliminary breath
analysis, the tests as hereinafter provided in this article shall be
administered in accordance with the provisions thereof.
24
Id.
16
alcohol or smoking for at least fifteen minutes before conducting the preliminary breath
test.”25
According to the DUI Information Sheet, the officers administered the
preliminary breath test just ten minutes after they first had contact with Mr. Pompeo;
however, the OAH did not rely on this in its determination that the officers had probable
cause for the arrest. The OAH found, and we agree, that there remained sufficient evidence
of impairment whether or not we consider Mr. Pompeo’s refusal of the preliminary breath
test. We find that the OAH’s finding of probable cause for arrest is supported by the
substantial evidence presented, and the circuit court abused its discretion in substituting its
judgment for that of the fact finder below.
C. Refusal of the Secondary Chemical Test
Finally, we now consider whether Mr. Pompeo’s failure to perform the
secondary chemical test following his arrest constituted a refusal. As we have held, “[a]
person’s driver’s license may be suspended under W. Va. Code, 17C-5-7 [1983] for refusal
to take a designated breathalyzer test.”26 According to the statute, an officer making a DUI
25
Reed v. Hill, 235 W. Va. at 7, 11-14, 770 S.E.2d at 507, 511-14 (quoting W. Va.
Code R. § 64-10-5.2(a) (2005)).
26
Syl. Pt. 2, Moczek v. Bechtold, 178 W. Va. 553, 363 S.E.2d 238 (1987).
17
arrest must inform the arrestee that a refusal to submit to a secondary chemical breath test
will result in license suspension.27 The statute further requires that the officer set forth the
penalties for refusal, both orally and by providing a written copy to the arrestee.28 In this
case, Mr. Pompeo does not dispute that Corporal Prager complied with these duties. It is
undisputed that Mr. Pompeo failed to perform the secondary test. At issue here is whether
Mr. Pompeo’s allegations of an unidentified breathing problem, without more, excuse him
from what would otherwise constitute a refusal.
The OAH found that Mr. Pompeo was afforded three attempts to submit to
the secondary chemical test and, although he placed the mouthpiece into his mouth, he did
not make a legitimate effort to provide a sufficient breath sample. After a fifteen-minute
period, Mr. Pompeo was afforded another opportunity to submit to the secondary chemical
test, but, again, he would not provide a sufficient breath sample. At this point, Corporal
27
The 2010 version of West Virginia Code § 17C-5-7 applies to this case and
provides, in relevant part:
(a) If 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 the refusal,
the person is given an oral warning and a written statement
advising him or her that his or her refusal to submit to the
secondary test finally designated will result in the revocation
of his or her license to operate a motor vehicle in this state for
a period of at least forty-five days and up to life; and that after
fifteen minutes following the warnings the refusal is
considered final.
28
Id.
18
Prager deemed Mr. Pompeo’s actions to constitute a refusal to submit to the secondary
chemical test.
Although both officers testified that Mr. Pompeo advised them that he
suffered from an unidentified breathing problem, Corporal Prager testified that, based on
his observations, Mr. Pompeo was merely feigning an attempt to provide a breath sample
into the testing device. The OAH found the testimony of the officers to be credible and
determined that Mr. Pompeo’s failure to perform the secondary chemical test was, in fact,
a refusal. Specifically, the OAH found that Mr. Pompeo offered no credible rebuttal
testimony regarding any asthmatic or breathing condition that would inhibit his ability to
perform the test.
The circuit court erred in disregarding the OAH’s findings on the issue of the
secondary chemical test. First, the circuit court incorrectly places the burden of proof on
the DMV. Once the DMV satisfied its burden of proof to show that the driver refused to
submit to the secondary chemical test, the burden shifted to Mr. Pompeo to show that he
was physically unable to take the test.29 Mr. Pompeo offered absolutely no testimony or
other evidence of a breathing condition.
29
Cunningham v. Bechtold, 186 W. Va. 474, 480, 413 S.E.2d 129, 135 (1991).
19
We find no clear error by the OAH in its findings on this issue. The OAH
listened to the officers’ testimony that Mr. Pompeo displayed no symptoms of a breathing
impairment and watched video footage of the traffic encounter. It then found the officers’
accounts to be credible. Specifically, the OAH found that Mr. Pompeo offered no credible
rebuttal testimony regarding any asthmatic or breathing condition that would inhibit his
ability to perform the test.
IV. CONCLUSION
For the reasons stated above, we reverse the circuit court’s order and remand
this case for reinstatement of the Commissioner’s order administratively revoking Mr.
Pompeo’s driver’s license.
Reversed and Remanded.
20