Patricia S. Reed, Comm. W. Va. Division of Motor Vehicles v. James Pettit ( 2015 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2015 Term
_______________ FILED
May 13, 2015
released at 3:00 p.m.
No. 14-0372 RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
_______________ OF WEST VIRGINIA
PATRICIA S. REED, COMMISSIONER OF THE
WEST VIRGINIA DIVISION OF MOTOR VEHICLES,
Petitioner Below, Petitioner
v.
JAMES PETTIT,
Respondent Below, Respondent
____________________________________________________________
Appeal from the Circuit Court of Kanawha County
Honorable Carrie L. Webster, Judge
Civil Action No. 12-AA-54
REVERSED AND REMANDED
____________________________________________________________
Submitted: April 7, 2015
Filed: May 13, 2015
Patrick Morrisey, Esq. Michael R. Whitt, Esq.
Attorney General Lewisburg, West Virginia
Elaine L. Skorich, Esq. Attorney for Respondent
Assistant Attorney General
Charleston, West Virginia
Attorneys for Petitioner
JUSTICE BENJAMIN delivered the Opinion of the Court.
CHIEF JUSTICE WORKMAN, deeming herself disqualified, did not participate in the
decision in this case.
JUDGE FERGUSON sitting by temporary assignment.
JUSTICE DAVIS dissents and reserves the right to file a dissenting opinion.
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.”
Syl. pt. 1, Muscatell v. Cline, 196 W. Va. 588, 474 S.E.2d 518 (1996).
2. “Sobriety checkpoint roadblocks are constitutional when conducted
within predetermined operational guidelines which minimize the intrusion on the
individual and mitigate the discretion vested in police officers at the scene.” Syl. pt. 1,
Carte v. Cline, 194 W. Va. 233, 460 S.E.2d 48 (1995).
3. “The essential purpose of the Fourth Amendment is ‘to impose a
standard of “reasonableness” upon the exercise of discretion’ by officers in order to
protect against arbitrary intrusions into the privacy of individuals. Delaware v. Prouse,
440 U.S. 648, 653-55, 99 S. Ct. 1391, 1395-97, 59 L. Ed. 2d 660 (1979).” Syl. pt. 5, State
v. Sigler, 224 W. Va. 608, 687 S.E.2d 391 (2009).
4. “In evaluating the lawfulness of a suspicionless seizure, a balancing
of interests should be considered to determine if such a seizure is permissible under the
United States Constitution and the Constitution of West Virginia and [ ] these factors
i
should be considered: (1) the gravity of the public concern that is being addressed or
served by the checkpoint; (2) the degree to which the checkpoint is likely to succeed in
serving this public interest; and (3) the severity with which the checkpoint interferes with
individual liberty.” Syl. pt. 6, State v. Sigler, 224 W. Va. 608, 687 S.E.2d 391 (2009).
5. “When evaluating the degree of severity of interference with
individual liberty, West Virginia courts must consider not only the subjective intrusion
determined by the potential of the checkpoint to generate fear and surprise in motorists,
but also the objective intrusion into individual freedom as measured by the duration of
the detention at the checkpoint and the intensity of the inspection.” Syl. pt. 7, State v.
Sigler, 224 W. Va. 608, 687 S.E.2d 391 (2009).
6. “The court’s obligation in weighing these factors is to assure that an
individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely
at the unfettered discretion of officers in the field.” Syl. pt. 8, State v. Sigler, 224 W. Va.
608, 687 S.E.2d 391 (2009).
7. “Suspicionless checkpoint roadblocks are constitutional in West
Virginia only when conducted in a random and non-discriminatory manner within
predetermined written operation guidelines which minimize the State’s intrusion into the
freedom of the individual and which strictly limits the discretion vested in police officers
at the scene.” Syl. pt. 9, State v. Sigler, 224 W. Va. 608, 687 S.E.2d 391 (2009).
ii
Benjamin, Justice:
Petitioner Patricia S. Reed, Commissioner of the West Virginia Division of
Motor Vehicles (“DMV”),1 appeals the March 20, 2014, order of the Circuit Court of
Kanawha County. The circuit court’s order affirmed the order of the Office of
Administrative Hearings (“OAH”), which reversed the DMV’s order of revocation
revoking the driver’s license of Respondent James Pettit for the offense of driving under
the influence of alcohol (“DUI”). Upon consideration of the parties’ briefs, the record
presented, and the oral argument, this Court concludes that the circuit court erred in
finding that Mr. Pettit’s arrest was unlawful and by reinstating his driver’s license.
Therefore, we reverse the circuit court’s order, and we remand for reinstatement of the
DMV’s revocation order.
I. FACTUAL AND PROCEDURAL BACKGROUND
The White Sulphur Springs Police Department in Greenbrier County, West
Virginia, scheduled a sobriety checkpoint to be held on October 16, 2010, between 8 p.m.
and 2 a.m. on U.S. Route 60 West in Harts Run in Greenbrier County. The guidelines
governing the operation of sobriety checkpoints are set forth in the police department’s
“DUI Sobriety Checkpoint Operations Manual” (“Manual”). Pursuant to the Manual, the
1
While this case was pending before the Court, Patricia S. Reed replaced Steven
O. Dale as Commissioner of the West Virginia Division of Motor Vehicles. Pursuant to
Rule 41(c) of the West Virginia Rules of Appellate Procedure, the name of the current
public officer has been substituted accordingly in this action.
1
scheduled checkpoint was announced in the local newspaper. However, in violation of
the Manual, the Greenbrier County Prosecutor’s Office was not contacted for inclusion in
the checkpoint planning.
On October 16, 2010, the Chief of Police of White Sulphur Springs, James
Lee Hylton, who was the officer in charge of the checkpoint, moved the checkpoint to
U.S. Route 60 East in White Sulphur Springs, a distance of approximately three and one-
half to four miles from the originally scheduled location. Chief Hylton testified before the
OAH that he moved the location closer to town because of a shortage of available police
officers. He explained that because the majority of police calls come from the town, a
police officer working the DUI checkpoint in town could more quickly answer a police
call. Finally, while the Manual requires six officers to work a sobriety checkpoint plus
one officer in charge for a total of seven officers, because the police department was
shorthanded at the time, only four officers and one officer in charge actually worked the
checkpoint at issue.
Corporal J. W. Hopkins, the investigating officer below, was working at the
checkpoint when he encountered Respondent James Pettit. After observing that Mr.
Pettit’s speech was slurred and his eyes were glassy, Corporal Hopkins asked him if he
had been drinking, and Mr. Pettit replied that he had consumed alcohol at home and at a
bar. Consequently, Corporal Hopkins administered a series of field sobriety tests.
Corporal Hopkins testified before the OAH that Mr. Pettit failed the walk-and-turn, the
2
one-leg stand, and the horizontal gaze nystagmus tests.2 Corporal Hopkins further
testified that he administered a preliminary breath test which Mr. Pettit failed. According
to Corporal Hopkins, he then transported Mr. Pettit to the Greenbrier County Sheriff’s
Department where he administered a secondary chemical test of Mr. Pettit’s breath. The
result of the test indicated that Mr. Pettit’s blood alcohol content was .157.
By order dated November 16, 2010, the DMV revoked Mr. Pettit’s
privilege to operate a motor vehicle in this State based on his DUI. Mr. Pettit appealed
the revocation, and after a hearing before the OAH, the OAH reversed Mr. Pettit’s
driver’s license revocation. The OAH found that the sobriety checkpoint at issue deviated
from the police department’s Manual and that these deviations rendered Mr. Pettit’s
arrest unlawful. Specifically, the OAH found that the Chief of Police did not have the
Prosecuting Attorney approve the checkpoint as mandated by the Manual. In addition, the
checkpoint was moved from its originally scheduled location without notice to the public.
Finally, while the Manual calls for six officers and one officer in charge to be assigned to
work a sobriety checkpoint, only four officers and one officer in charge worked the
checkpoint at issue.
2
The OAH indicated in its order that the results of the horizontal gaze nystagmus
test were not considered because Corporal Hopkins did not perform a medical assessment
prior to administering the test.
3
The DMV appealed the OAH’s decision to the Circuit Court of Kanawha
County. By order dated March 20, 2014, the circuit court affirmed the decision of the
OAH. The DMV now appeals the circuit court’s order.
II. STANDARD OF REVIEW
This Court set forth the standard of review dealing with driver’s license
revocations in syllabus point 1 of Muscatell v. Cline, 196 W. Va. 588, 474 S.E.2d 518
(1996), 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.
With this standard to guide us, we will now review the circuit court’s decision below.
III. ANALYSIS
In this case, we are asked to determine the lawfulness of the sobriety
checkpoint at which Mr. Pettit was stopped and found to be DUI. West Virginia Code §
17C-5A-2(f) (2010), the statute in force at the time of Mr. Pettit’s arrest, provided in
pertinent part:
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 .
. . the Office of Administrative Hearings shall make specific
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findings as to: . . . (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. . . .
According to this statute, in a case involving a license revocation due to DUI, the OAH is
required to make a specific finding that the person was lawfully arrested.3 Under this
Court’s precedent, a person cannot be considered lawfully arrested for DUI, as a
prerequisite to the administrative revocation of the person’s driver’s license, unless the
underlying traffic stop was legally valid. In Dale v. Ciccone, 233 W. Va. 652, 760 S.E.2d
466 (2014), this Court explained:
As this Court stated in Dale v. Odum, 233 W. Va. 601, 760
S.E.2d 415, 2014 WL 641990 (W. Va. Feb. 11, 2014)
(memorandum decision), “absent a valid investigatory stop, a
finding that the ensuing arrest was lawful cannot be made.”
Id. 606, 760 S.E.2d at 420, 2014 WL 641990 at *5. This issue
was also addressed in Dale v. Arthur, 2014 WL 1272550 (W.
Va. March 28, 2014) (memorandum decision), as follows:
Our decision in Clower v. West Virginia
Department of Motor Vehicles, 223 W. Va. 535,
544, 678 S.E.2d 41, 50 (2009), applied the 2004
version of West Virginia Code § 17C-5A-2(e)
which required a specific finding of “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.” The 2008 version of the statute
3
On appeal to this Court, the DMV argues that even if the checkpoint at issue was
unconstitutional, the circuit court erred in finding Mr. Pettit’s arrest and his driver’s
license revocation unlawful. The DMV also contends that even if Mr. Pettit’s arrest was
unlawful, in violation of W. Va. Code § 17C-5A-2(f), the circuit court erred in creating
the remedy of reinstatement of Mr. Pettit’s driver’s license. This Court previously
addressed these arguments and found them to be without merit.
5
did not contain this language. Miller v.
Chenoweth, 229 W. Va. 114, 117 n.5, 727
S.E.2d 658, 661 n.5 (2012). However, the
Legislature amended the statute in 2010, and
restored the language requiring a finding that
the person was either lawfully arrested or
lawfully taken into custody. Id.
2014 WL 1272550 at *3 n.2. As this Court observed in
Arthur, “the decision to include the requirement is within the
prerogative of the Legislature, and it is not to be invaded by
this Court.” Id. at *3. Consequently, in cases in which the
applicable version of West Virginia Code § 17C-5A-2 has
included the requirement for a lawful arrest, as it does in the
case sub judice and did in Clower, an individual cannot be
considered lawfully arrested for DUI where law enforcement
did not have the requisite articulable reasonable suspicion to
initiate the underlying traffic stop.
Ciccone, 233 W. Va. at 659, 760 S.E.2d at 473. See also Dale v. Barnhouse, No. 14­
0056, 2014 WL 6607493 at *3 (W. Va. Nov. 21, 2014) (memorandum decision) (finding
that “the investigating officer in this case did not have the requisite articulable reasonable
suspicion to initiate a traffic stop and, thus, respondent was not lawfully placed under
arrest”); Dale v. Haynes, No. 13-1327, 2014 WL 6676546 (W. Va. Nov. 21, 2014)
(memorandum decision) (rejecting Commissioner’s argument that an arrest can be lawful
absent a valid traffic stop).
In addition, this Court previously has indicated that under W. Va. Code §
17C-5A-2(f), evidence that a person was driving while intoxicated collected incident to
an unlawful arrest resulting from an unlawful stop should not be considered by the OAH
or the circuit court in appeals involving driver’s license revocations. In Dale v. Arthur,
6
No. 13-0374, 2014 WL 1272550 (W. Va. Mar. 28, 2014) (memorandum decision), we
determined that the exclusion of evidence collected during an unlawful stop was proper
under W. Va. Code § 17C-5A-2(f). In doing so, this Court relied on Clower v. West
Virginia Department of Motor Vehicles, 223 W. Va. 535, 678 S.E.2d 41 (2009),
superseded by statute as stated in Miller v. Chenoweth, 229 W. Va. 114, 727 S.E.2d 658
(2012), in which we concluded that the revocation of a driver’s license was improper and
did not address evidence that the motorist had slurred speech, smelled of alcohol, failed
field sobriety tests, and had a blood alcohol content above the legal limit because this
evidence was collected during an unlawful stop. See also Dale v. Barnhouse, supra
(finding that OAH and circuit court properly did not consider evidence of driving while
intoxicated where the evidence was collected during an unlawful stop); Dale v. Judy, No.
14-0216, 2014 WL 6607609 (W. Va. Nov. 21, 2014) (memorandum decision)
(concluding that neither OAH nor the circuit court erred in not considering evidence
garnered as result of invalid stop).
In the instant case, the applicable version of W. Va. Code § 17C-5A-2(f)
requires that the OAH make a finding that the person was lawfully arrested. The circuit
court agreed with the OAH that Mr. Pettit was not lawfully arrested because the traffic
stop at which Mr. Pettit was arrested was not legally valid. Consequently, the OAH and
the circuit court did not consider evidence garnered as a result of the traffic stop and
reinstated Mr. Pettit’s driver’s license which had been revoked for DUI. The sole issue
before this Court is the legal validity of the sobriety checkpoint below.
7
In Carte v. Cline, 194 W. Va. 233, 460 S.E.2d 48 (1995), this Court
considered the constitutionality of sobriety checkpoints. At the outset, we recognized that
“[f]or Fourth Amendment purposes, a ‘seizure’ takes place when a vehicle is stopped at a
sobriety checkpoint. Such a seizure is subject to constitutional scrutiny to determine its
reasonableness.” 194 W. Va. at 236, 460 S.E.2d at 51. We then reviewed three leading
cases of the United States Supreme Court dealing with the issue of checkpoint seizures.
The first case we reviewed in Cline was United States v. Martinez-Fuerte,
428 U.S. 543 (1976), which involved the operation of a fixed immigration roadblock at
which all passing vehicles were initially stopped and the vehicles’ occupants briefly
observed or questioned. Vehicles were detained only upon a finding of probable cause or
the consent of the driver. The Supreme Court concluded that “the seizure incident to a
fixed roadblock satisfied the reasonableness standard of the Fourth Amendment as long
as the stop remained minimally intrusive and was operated pursuant to narrow guidelines
which limited the discretionary authority of the officials conducting the stops.” Cline, 194
W. Va. at 237, 460 S.E.2d at 52, (citing Martinez-Fuerte, 428 U.S. at 566–67).
The second case we considered was Delaware v. Prouse, 440 U.S. 648
(1979). In Prouse, a police officer randomly stopped a car to check the driver’s license
and registration despite the fact that the officer had no reason for stopping the car such as
witnessing a traffic violation or suspicious activity. The officer then saw marijuana in
8
plain view on the floor of the car and arrested the driver for illegal possession of a
controlled substance. The Supreme Court held that the stop was unreasonable and in
violation of the Fourth Amendment for two reasons: the police officer’s unbridled
discretion in conducting the stop and the Supreme Court’s determination that any slight
benefit to highway safety did not justify the Fourth Amendment intrusion.
The third case that we examined in Cline was Michigan Department of
State Police v. Sitz, 496 U.S. 444 (1990), in which the Supreme Court squarely addressed
the issue of whether a State’s use of sobriety checkpoints violates the Fourth and
Fourteenth Amendments to the United States Constitution. The specific checkpoint at
issue was conducted in Michigan. The Court in Sitz indicated that a Michigan advisory
committee created guidelines setting forth procedures governing checkpoint operations,
site selection, and publicity. Under these guidelines, all vehicles passing through a
checkpoint were stopped and their drivers briefly examined for signs of intoxication. The
Sitz court emphasized that the “checkpoints are selected pursuant to the guidelines, and
uniformed police officers stop every approaching vehicle.” 496 U.S. at 453.
The Supreme Court utilized a balancing test in determining the
constitutionality of sobriety checkpoints. On one side of the scale, the Supreme Court
placed a State’s interest in conducting sobriety checkpoints and found that “[n]o one can
seriously dispute the magnitude of the drunken driving problem or the States’ interest in
eradicating it.” 496 U.S. at 450–51. On the other side of the scale, the Supreme Court
9
placed the Fourth Amendment intrusion caused by checkpoints and found that the
measure of the intrusion on motorists stopped briefly at sobriety checkpoints is slight,
noting that the average delay for each driver at the checkpoint at issue was 25 seconds.
The Supreme Court explained that “[i]n Delaware v. Prouse, supra, we disapproved
random stops made by Delaware Highway Patrol officers in an effort to apprehend
unlicensed drivers and unsafe vehicles,” 496 U.S. at 454, because such “stops involved
the ‘kind of standardless and unconstrained discretion [which] is the evil the Supreme
Court has discerned when in previous cases it has insisted that the discretion of the
official in the field be circumscribed, at least to some extent.’” Id. (Citing Delaware, at
659–660). This Court, based on our review of these Supreme Court cases, held in
syllabus point 1 of Cline, supra, that “[s]obriety checkpoint roadblocks are constitutional
when conducted within predetermined operational guidelines, which minimize the
intrusion on the individual and mitigate the discretion vested in police officers at the
scene.”
More recently, in State v. Sigler, 224 W. Va. 608, 687 S.E.2d 391 (2009),
this Court concluded that “the stopping of a vehicle at a so-called administrative
checkpoint is . . . [no] less of a seizure than the stopping of that same vehicle at a sobriety
checkpoint,” Sigler, 224 W. Va. at 616, 687 S.E.2d at 399. In determining the validity of
both types of checkpoints, we explained in syllabus point 5 of Sigler that
[t]he essential purpose of the Fourth Amendment is “to
impose a standard of ‘reasonableness’ upon the exercise of
discretion” by officers in order to protect against arbitrary
10
intrusions into the privacy of individuals. Delaware v.
Prouse, 440 U.S. 648, 653-55, 99 S. Ct. 1391, 1395-97, 59
L. Ed. 2d 660 (1979).
In order to ensure that a checkpoint is reasonable, this Court held:
In evaluating the lawfulness of a suspicionless seizure,
a balancing of interests should be considered to determine if
such a seizure is permissible under the United States
Constitution and the Constitution of West Virginia and these
factors should be considered: (1) the gravity of the public
concern that is being addressed or served by the checkpoint;
(2) the degree to which the checkpoint is likely to succeed in
serving this public interest; and (3) the severity with which
the checkpoint interferes with individual liberty.
Syl. pt. 6, id. Further,
When evaluating the degree of severity of interference
with individual liberty, West Virginia courts must consider
not only the subjective intrusion determined by the potential
of the checkpoint to generate fear and surprise in motorists,
but also the objective intrusion into individual freedom as
measured by the duration of the detention at the checkpoint
and the intensity of the inspection.
Syl. pt. 7, Sigler. In addition, we observed that “[t]he court’s obligation in weighing
these factors is to assure that an individual’s reasonable expectation of privacy is not
subject to arbitrary invasions solely at the unfettered discretion of the officers in the
field.” Syl. pt. 8, id. Finally, we held that
[s]uspicionless checkpoint roadblocks are
constitutional in West Virginia only when conducted in a
random and non-discriminatory manner within predetermined
written operation guidelines which minimize the State’s
intrusion into the freedom of the individual and which strictly
limits the discretion vested in police officers at the scene.
Syl. pt. 9, id. We will now apply our law from Cline and Sigler to the facts of this case.
11
As noted above, the White Sulphur Springs Police Department had
predetermined written guidelines governing the operation of sobriety checkpoints.
However, the police department deviated from these guidelines when it conducted the
checkpoint at issue. It is not disputed that the police department did not have the
prosecuting attorney approve the checkpoint, the checkpoint was moved from its
originally scheduled location without notice to the public, and only four officers and one
officer in charge worked the checkpoint which was short of the six officers and one
officer in charge required under the guidelines.
On appeal, the Commissioner posits that it was not necessary for the police
department to follow the operational guidelines for sobriety checkpoints perfectly.
Instead, says the Commissioner, this Court should apply the balancing test from Sigler to
determine whether the police department’s deviation from the manual affected the State’s
intrusion into Mr. Pettit’s freedom and whether these deviations vested too much
discretion in the officer in charge of the checkpoint. Mr. Pettit responds that if police
departments are not required to adhere to their predetermined guidelines for sobriety
checkpoints, these departments simply will disregard the guidelines at will. He argues
that this, in turn, will result in officers in charge having unfettered discretion regarding
the conduct of checkpoints and greater intrusion into the public’s liberty as a result of the
checkpoints.
12
As an initial matter, we find that the police department’s violations of its
guidelines for sobriety checkpoints did not amount to per se violations of the federal or
state constitutions or other laws of this State. The Supreme Court has never held that the
federal constitution requires that a county prosecutor approve a sobriety checkpoint
before the checkpoint is conducted, that a checkpoint cannot be moved after it is publicly
announced to be held at a specific location, or that a specific number of police officers
must work a sobriety checkpoint. In addition, this Court is unaware of any statute or State
rule that contains these requirements, and this Court never has held that the
predetermined guidelines governing sobriety checkpoints must contain these
requirements. Instead, the police department below drafted these guidelines in an attempt
to ensure that its operation of a sobriety checkpoint conforms to federal and state
constitutional law. Obviously, a police department may draft requirements that go beyond
what is constitutionally required. In instances where a checkpoint is challenged because a
police department violated a sobriety checkpoint guideline which is not mandated under
state law or the state and federal constitutions, we agree with the DMV that a court must
determine the lawfulness of the checkpoint by applying the balancing test which we set
forth in Sigler.
In Sigler this Court observed that in assessing the lawfulness of checkpoints
we principally are concerned with the reasonableness both of the degree of discretion
exercised by police officers in operating the checkpoint and the intrusion into the privacy
of individuals who are stopped at the checkpoint. Therefore, the question that we must
13
answer in this case is whether the Police Department’s violation of its predetermined
guidelines resulted in the officers operating the checkpoint exercising an unreasonable
degree of discretion or an unreasonable interference with the liberty of motorists passing
through the checkpoint.
After careful consideration and application of our law to the specific facts
of this case, we find that the police department’s deviation from its predetermined
guidelines in the operation of the checkpoint at issue did not result in the unreasonable
exercise of discretion by the officer in charge of the checkpoint. The evidence indicates
that the officer in charge planned the sobriety checkpoint in advance in substantial
compliance with the predetermined guidelines. These facts are in marked contrast to
those of Prouse in which an officer in the field acted in his or her own discretion in
setting up and conducting a checkpoint as he or she saw fit.
Further, the officer in charge in the instant case articulated a specific,
reasonable explanation for moving the checkpoint prior to it being moved. The guidelines
provide that an alternate checkpoint can be used “if a hazardous or otherwise unsafe
condition exists as determined by the supervisor in charge.” The officer in charge
specifically testified below that he moved the checkpoint into town because he was short
of police officers, and the alternate location made it easier for a police officer working the
checkpoint to respond to a police call which was more likely to originate inside the town.
14
Therefore, the relocation of the sobriety checkpoint for the purpose of providing
sufficient protection to and safety of the general public conformed to the guidelines.
Moreover, the officer in charge explained that fewer officers worked the
checkpoint than the guidelines require because one of his officers recently had resigned.
There is no evidence that the decreased number of officers operating the checkpoint
increased the degree of discretion that these officers exercised or that they failed to
operate the checkpoint in a random and nondiscriminatory manner.
Finally, there was no evidence presented below that the operation of the
checkpoint at issue resulted in an unreasonable intrusion into the freedom of individual
motorists who passed through the checkpoint. Specifically, Chief Hylton, the officer in
charge, testified before the OAH that signs were posted at the site to alert motorists about
the checkpoint. He also indicated that at least four emergency vehicles were at the scene
and at least three of them had their emergency lights on. Further, Chief Hylton indicated
that all of the officers working the checkpoint had flashlights and were wearing what he
called “five point vests.” This indicates to this Court that the checkpoint was not operated
in such a way as to have a significant potential to generate fear and surprise in motorists.
Finally, Officer Jerry W. Hopkins, who arrested Mr. Pettit, testified below that his duties
at the sobriety checkpoint were to check for impaired drivers, insurance information, and
registration. Based on this evidence, this Court has no reason to conclude that the
15
duration of the detention of each individual motorist and the intensity of the inspection of
each motorist was unreasonable.
IV. CONCLUSION
Based on our analysis above, this Court finds that the sobriety checkpoint at
issue was legally valid and that Mr. Pettit’s arrest for DUI was lawful. Accordingly, we
reverse the March 20, 2014, order of the Circuit Court of Kanawha County that affirmed
the OAH’s reversal of Mr. Pettit’s driver’s license revocation, and we remand for the
reinstatement of the revocation.
Reversed and remanded.
16