Frazier, DMV Commissioner v. Lilly ( 2021 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS FILED
May 20, 2021
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Everett Frazier, Commissioner,
West Virginia Division of Motor Vehicles,
Respondent Below, Petitioner
vs.) No. 20-0365 (Raleigh County 19-AA-12-K)
Jeffrey A. Lilly,
Petitioner Below, Respondent
MEMORANDUM DECISION
Petitioner Everett Frazier, Commissioner of the West Virginia Division of Motor Vehicles,
by counsel Patrick Morissey and Jason D. Nicholas, appeals the order of the Circuit Court of
Raleigh County, entered on May 5, 2020, reversing the final order of the Commission of the
Division of Motor Vehicles (that revoked respondent’s license to operate a motor vehicle) and
remanding to the Office of Administrative Hearings (“OAH”) for a hearing conducted by a
different hearing examiner. Respondent Jeffrey A. Lilly appears by counsel David Pence.
The Court has considered the parties’ briefs and record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. This case satisfies the “limited circumstances” requirement of Rule 21(d) of the
Rules of Appellate Procedure and is appropriate for a memorandum decision rather than an
opinion. For the reasons expressed below, the decision of the circuit court is reversed, and this case
is remanded to the circuit court for entry of an order consistent with this decision.
Petitioner Everett Frazier (“the commissioner”) entered an order for the revocation of
Respondent Jeffrey A. Lilly’s driving privileges on November 7, 2018, following Mr. Lilly’s arrest
in late October of 2018. Mr. Lilly appealed to the OAH, and a hearing was conducted in March of
2019.
During the OAH hearing, Sgt. Jason Redden of the Raleigh County Sheriff’s Department
testified that he initiated the traffic stop of Mr. Lilly after an extended observation during which
Mr. Lilly crossed the center line and the fog line multiple times, and during which Mr. Lilly pulled
his truck aside the road at least twice, abruptly, to allow Sgt. Redden to pass. Sgt. Redden smelled
alcohol when he approached Mr. Lilly’s vehicle. There were four passengers in the Lilly vehicle,
but as Sgt. Redden and Mr. Lilly walked away from the truck, Sgt. Redden continued to smell
alcohol. Sgt. Redden noted that Mr. Lilly was unsteady when he exited his vehicle, and his eyes
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were watery and bloodshot. Mr. Lilly admitted to Sgt. Redden that he had consumed beer earlier
in the evening, but he could not recall where he consumed it. Sgt. Redden administered field
sobriety tests to Mr. Lilly and found indication of impairment. He administered a preliminary
breath test and, based on the positive result, placed Mr. Lilly under arrest and took him to the
Raleigh County Sheriff’s Department for processing. Mr. Lilly signed the required implied consent
statement and, at 2:48 a.m., submitted to a secondary chemical breath test that showed a blood
alcohol content of 0.071%.
Mr. Lilly testified on his own behalf at the OAH hearing and explained that he suffers from
a condition known as photophobia. Mr. Lilly recalled that, preceding the traffic stop, he pulled
over to allow the car behind him to pass (without realizing it was a police car) because the
headlights from the car impaired his vision. He testified that he and his friends had been at a bar
and were traveling to a party when he was pulled over. He acknowledged that he was traveling at
varying speeds but denied weaving while driving or crossing lines. Mr. Lilly further acknowledged
that he had consumed multiple beers.
The OAH hearing examiner found that Sgt. Redden’s testimony was credible to support a
finding that he had a lawful reason to initiate the stop of Mr. Lilly’s automobile. The hearing
examiner also found Mr. Lilly “generally” credible. Based on the testimony of Sgt. Redden and
Mr. Lilly, together with other evidence adduced at the hearing, the hearing examiner affirmed the
commissioner’s order of revocation.
Mr. Lilly appealed the revocation to the Circuit Court of Raleigh County. The circuit court
explained that no video evidence was offered to support Sgt. Redden’s testimony and “the
[h]earing [e]xaminer had to simply choose which version he believed. He chose the arresting
officer’s version, despite two previous findings [in the hearing examiner’s final order] of [Mr.
Lilly’s] credibility.” The court wrote that the hearing examiner “appear[ed] to have approached
the case with a clear bias against” Mr. Lilly. On this basis, the circuit court determined that the
commissioner failed to support his revocation order by a preponderance of the evidence, and
ordered the matter remanded for a new hearing to be conducted by a different hearing examiner. 1
The commissioner asserts four assignments of error on appeal. He argues, first, that the
circuit court erred in concluding that he failed to prove by a preponderance of the evidence that
Mr. Lilly operated a motor vehicle while under the influence of alcohol; second, that the circuit
court substituted its own judgment for that of the hearing examiner in making credibility
determinations; third, that the circuit court erred in finding that the hearing examiner improperly
drew a negative inference from Mr. Lilly’s failure to call witnesses; and, fourth, in directing that
the matter be heard by a different hearing examiner on remand to the OAH. We recently reiterated
the standard under which we review cases such as this one.
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Mr. Lilly’s defense was largely based on his testimony that he suffers from photophobia,
and he pulled aside the road because he was adversely affected by Sgt. Redden’s headlights behind
him. We are not bothered that the OAH hearing examiner did not admit into evidence a letter from
Mr. Lilly’s doctor confirming that Mr. Lilly suffered from photophobia, because the hearing
examiner credited Mr. Lilly’s testimony about that condition.
2
“In cases where the circuit court has [reversed] 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.” Syl. Pt. 2, Muscatell v. Cline, 196
W. Va. 588, 474 S.E.2d 518 (1996).
Syl. Pt. 2. Frazier v. Fouch, ___ W. Va. ___, 853 S.E.2d 587 (2020). Because we find that the
circuit court failed to accord deference to the agency’s hearing examiner, we conclude that the
circuit court abused its discretion and the error should be corrected on remand.
In Syllabus Point 4 of Frazier v. S.P., 242 W. Va. 657, 838 S.E.2d 741 (2020), we reiterated
our holding that
“[s]ince a reviewing court is obligated to give deference to factual findings
rendered by an administrative law judge, a circuit court is not permitted to substitute
its judgment for that of the hearing examiner with regard to factual determinations.
Credibility determinations made by an administrative law judge are similarly
entitled to deference. Plenary review is conducted as to the conclusions of law and
application of law to the facts, which are reviewed de novo.” Syllabus point 1, in
part, Cahill v. Mercer County Board of Education, 208 W. Va. 177, 539 S.E.2d 437(2000).
The hearing examiner made the unequivocal determination that Sgt. Redden offered
credible testimony to support the initial traffic stop. The circuit court acknowledged that Sgt.
Redden testified that Mr. Lilly’s vehicle crossed the center line and the fog line. However, the
circuit court emphasized that the hearing examiner made “two previous findings of [Mr. Lilly’s]
credibility[,]” but nevertheless failed to adequately explain why he accepted Sgt. Redden’s
recitation of events when Mr. Lilly “denied those allegations outright or stated that he did not recall
doing those things.” We note, first, that a fact finder could credit both the officer’s testimony that
there existed sufficient justification for the traffic stop and the driver’s testimony that he did not
recall the events as described by the officer.
But we also stress that the hearing examiner explained in detail the basis for upholding the
revocation order. In significant part, the hearing examiner wrote:
In explaining his driving on the morning of his arrest, [Mr. Lilly] first
testified that he had no difficulty controlling his vehicle, was not weaving, drifting,
or straddling the lane line. While he acknowledged that he was traveling at varying
speeds because he pulled over two times, he only pulled to the right, then changed
his testimony and testified that he did not recall ever crossing the centerline, did not
recall ever crossing the fog line on the right side and never weaved within his lane
of travel. He further testified that he had no trouble exiting the vehicle and was not
unsteady. Although he was wearing cowboy boots at the time and the parking lot
was gravel, he had no trouble getting out of his vehicle or walking. Any suggestion
. . . that the field sobriety tests should not be considered because they were not
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performed in a suitable place defies credulity given [Mr. Lilly’s] own testimony . .
. that he had no trouble getting out of his vehicle or walking. When asked if he had
consumed any alcohol prior to driving, [Mr. Lilly] admitted to consuming a total of
two beers within three to four hours and one beer within approximately one and
one-half hours prior to being stopped. . . .
These detailed findings demonstrate that, even when Mr. Lilly’s testimony is deemed “generally”
credible, the evidence shows at a minimum that Mr. Lilly traveled at varying speeds, that Sgt.
Redden observed Mr. Lilly crossing traffic lines though Mr. Lilly does not recall doing so 2, that
Sgt. Redden detected alcoholic odor, that Mr. Lilly admitted to consuming alcohol, and that Sgt.
Redden administered reliable field sobriety tests that suggested impairment. Because this evidence
is uncontroverted, we agree with the commissioner that the circuit court misapplied the factual
evidence, as asserted in the commissioner’s first assignment of error, and improperly substituted
its judgment for that of the hearing examiner, as asserted in the commissioner’s second assignment
of error.
Similarly, we agree with the commissioner, as set forth in his third assignment of error,
that the circuit court incorrectly found that the hearing examiner made an improper negative
inference because Mr. Lilly did not call any of the several passengers from his vehicle as witnesses,
without similarly making a negative inference based on the commissioner’s having not called as a
witness the deputy officer accompanying Sgt. Redden. As described above, the commissioner
introduced sufficient evidence to create the presumption that Mr. Lilly operated a motor vehicle
while intoxicated. The hearing examiner concluded that the potential witnesses would not have
assisted in the rebuttal of the commissioner’s evidence. The significant detail in the hearing
examiner’s conclusion is not the absence of witnesses but, rather, the absence of rebuttal evidence.
The point is that the commissioner presented uncontroverted evidence of Mr. Lilly’s intoxication
to the OAH, and this would remain true even if the hearing examiner made no reference to Mr.
Lilly’s decision to call no witnesses.
For the foregoing reasons, we reverse and remand this case to the circuit court to enter an
order that affirms the Office of Administrative Hearings’ decision and reinstates the
commissioner’s revocation order. 3
Reversed and remanded.
2
Concerning the differing recollections of whether Mr. Lilly crossed traffic lines, we note,
as explained in footnote 1, that Mr. Lilly testified that Sgt. Redden’s headlights so troubled his
photophobic condition that he pulled aside the road at least twice to allow Sgt. Redden to pass.
3
Because our remand to the circuit court requires the circuit court to enter an order
affirming the OAH’s administrative decision, we find it unnecessary to address in detail the
commissioner’s fourth assignment of error, which challenges the circuit court’s instruction to the
OAH concerning the management and assignment of its caseload. We note, however, that our
jurisprudence suggests that our judiciary is to ensure that an administrative agency has conducted
its hearings in an impartial manner, while leaving the designation of hearing examiners to the
agency itself. See Syl. Pt. 2, Varney v. Hechler, 189 W. Va. 655, 434 S.E.2d 15 (1993).
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ISSUED: May 20, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
DISQUALIFIED:
Justice John A. Hutchison
Justice William R. Wooton
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