Steven O. Dale, Acting Comm. W. Va. Div. of Motor Vehicles v. Donald Oakland ( 2014 )


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  •          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
    January 2014 Term                        FILED
    _______________                     June 6, 2014
    released at 3:00 p.m.
    RORY L. PERRY II, CLERK
    No. 13-0761                   SUPREME COURT OF APPEALS
    OF WEST VIRGINIA
    _______________
    STEVEN O. DALE, ACTING COMMISSIONER OF
    WEST VIRGINIA DIVISION OF MOTOR VEHICLES,
    Respondent Below, Petitioner
    v.
    DONALD OAKLAND,
    Petitioner Below, Respondent
    ____________________________________________________________
    Appeal from the Circuit Court of Marshall County
    The Honorable David W. Hummel, Jr., Judge
    Civil Action No. 13-CAP-3
    REVERSED AND REMANDED
    ____________________________________________________________
    Submitted: March 26, 2014
    Filed: June 5, 2014
    Patrick Morrisey, Esq.	                       J. Thomas Madden III, Esq.
    Attorney General	                             Madden Law Offices
    Elaine L. Skorich, Esq.	                      Glen Dale, West Virginia
    Assistant Attorney General	                   Counsel for the Respondent
    DMV – Attorney General’s Office
    Charleston, West Virginia	                    Robert G. McCoid, Esq.
    Counsel for the Petitioner	                   McCamic, Sacco & McCoid, PLLC
    Wheeling, West Virginia
    Counsel for the Respondent
    The Opinion of the Court was delivered PER CURIAM.
    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.     “Where objections were not shown to have been made in the trial
    court, and the matters concerned were not jurisdictional in character, such objections will
    not be considered on appeal.” Syllabus Point 1, State Road Comm’n v. Ferguson, 
    148 W. Va. 742
    , 
    137 S.E.2d 206
     (1964).
    4.   “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
    i
    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
    Administration and whether, and in what manner, he or she complied with that training in
    administering the test to the driver.” Syllabus Point 2, White v. Miller, 
    228 W. Va. 797
    ,
    
    724 S.E.2d 768
     (2012).
    5. “The ‘clearly wrong’ and the ‘arbitrary and capricious’ standards of
    review are deferential ones which presume an agency’s actions are valid as long as the
    decision is supported by substantial evidence or by a rational basis.” Syllabus Point 3, In
    re Queen, 
    196 W. Va. 442
    , 
    473 S.E.2d 483
     (1996).
    6.    “There are no provisions in either W. Va. Code, 17C-5-1 (1981), et
    seq., or W. Va. Code, 17C-5A-1 (1981), et seq., that require the administration of a
    chemical sobriety test in order to prove that a motorist was driving under the influence of
    alcohol or drugs for purposes of making an administrative revocation of his driver’s
    license.” Syllabus Point 1, Albrecht v. State, 
    173 W. Va. 268
    , 
    314 S.E.2d 859
     (1984).
    ii
    Per Curiam:
    The instant case is before the Court upon the appeal of Petitioner Steven O.
    Dale, Acting Commissioner of the Division of Motor Vehicles (“Commissioner”), from a
    June 15, 2013, order of the Circuit Court of Marshall County, reversing a final order of
    the Office of Administrative Hearings (“OAH”) that upheld the Commissioner’s order
    revoking Respondent Donald Oakland’s privilege to drive a motor vehicle.                The
    Commissioner alleges that the circuit court erred in ignoring all of the evidence presented
    that Mr. Oakland drove while under the influence of controlled substances and that Mr.
    Oakland neither objected to nor rebutted the evidence presented by the Commissioner
    during the proceedings below. Conversely, Mr. Oakland alleges that the circuit court
    properly concluded that the hearing examiner was clearly wrong in finding that he was
    under the influence of marijuana at the time the police officer stopped his vehicle. Mr.
    Oakland also alleges that the Commissioner was without jurisdiction to enter an order
    suspending his operator’s privileges in the absence of any accompanying arrest, because
    a lawful arrest is a prerequisite to the issuance of any order of suspension. Upon
    examination of the petition, the response, the submitted appendices, and the arguments of
    counsel, we conclude that, for reasons set forth more fully below, the circuit court’s order
    should be reversed and remanded for reinstatement of the Commissioner’s order revoking
    Mr. Oakland’s license to operate a motor vehicle.
    I.
    FACTUAL AND PROCEDURAL BACKGROUND
    1
    On October 12, 2010, Officer Sean Wilhelm of the Moundsville Police
    Department, the investigating officer in this matter, observed a blue 2001 Ford Mustang
    which failed to stop at a stop sign located at Grant Avenue and 3rd Street in Moundsville,
    Marshall County, West Virginia. Officer Wilhelm initiated a traffic stop of the motor
    vehicle and identified the Respondent Donald Oakland as the driver of the motor vehicle.
    Officer Wilhelm detected a strong odor of marijuana emanating from within Mr.
    Oakland’s vehicle as soon as he got behind the vehicle even before he activated the
    emergency lights.
    Officer Wilhelm immediately placed Mr. Oakland in handcuffs, patted him
    down, and put him in the back of the police cruiser. Officer Wilhelm observed that Mr.
    Oakland’s eyes appeared glassy. Subsequently, Officer Steve Oliver of the Moundsville
    Police Department arrived at the scene of the traffic stop to provide assistance. Officer
    Wilhelm noted that Mr. Oakland appeared steady as he exited the vehicle and as he
    walked to the roadside.
    Mr. Oakland admitted to Officer Wilhelm that he had “a joint” and that he
    smoked marijuana in the car while driving around Moundsville.            Officer Wilhelm
    administered a series of field sobriety tests to Mr. Oakland, including the horizontal gaze
    nystagmus (“HGN”) test, the walk-and-turn test, and the one-leg stand test. Mr. Oakland
    passed the HGN test. However, he failed the walk-and turn test because during the
    2
    instruction phase of the test, he stepped off the line of walk, missed walking in a heel-to­
    toe manner as instructed, raised his arms for balance, and completed an improper turn.
    Additionally, Mr. Oakland failed the one-leg stand test because he used his arms for
    balance and was unable to keep his foot raised off of the ground. After searching Mr.
    Oakland’s car, the officers located a rolled “joint” containing a green leafy substance that
    they deemed to be marijuana, a partially burnt “joint” and an Altoids tin with a green
    leafy substance inside. Officer Wilhelm handcuffed Mr. Oakland and transported him to
    the hospital for the administration of a blood test. Officer Wilhelm waited for the results
    of the blood test before placing Mr. Oakland under arrest for a criminal offense.
    On November 9, 2010, the DMV revoked Mr. Oakland’s license. On
    December 2, 2010, Mr. Oakland requested an administrative hearing before the Office of
    Administrative Hearings (“OAH”). On January 7, 2011, Mr. Oakland appeared at the
    administrative hearing and was represented by counsel; however, Mr. Oakland did not
    testify at the hearing. At the time of the hearing, Officer Wilhelm had not received the
    results of the blood test but the hearing examiner found that they were not necessary
    pursuant to Syl. Pt. 4, Coll v. Cline, 
    202 W.Va. 599
    , 
    505 S.E.2d 662
     (1998). The OAH
    upheld the driver’s license revocation due to DUI of controlled substances. Mr. Oakland
    appealed to the Circuit Court of Marshall County which entered a June 15, 2013 order,
    reversing the decision of the OAH finding that “the material findings of fact upon which
    the adverse legal conclusions are based are without any basic foundational support.” The
    circuit court found the hearing examiner’s findings “so fatally flawed that the [c]ourt is at
    3
    a loss to adequately describe same other than to say that such were arbitrary, capricious,
    an abuse of discretion, and a clearly unwarranted exercise of discretion.” The circuit
    court noted that the record did not establish either officer’s training or ability to identify
    marijuana by sight or scent, and failed to show that either officer was capable of giving a
    field sobriety test. This appeal followed.
    II.
    STANDARD OF REVIEW
    With regard to the standard of review, this Court has held that
    [o]n appeal of an administrative order from a circuit court,
    this Court is bound by the statutory standards contained in
    W.Va. Code § 29A–5–4(a) and reviews questions of law
    presented de novo; findings of fact by the administrative
    officer are accorded deference unless the reviewing court
    believes the findings to be clearly wrong.
    Syl. Pt. 1, Muscatell v. Cline, 
    196 W. Va. 588
    , 
    474 S.E.2d 518
     (1996). Furthermore,
    [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.
    Syl. Pt. 2, Muscatell v. Cline, 
    196 W. Va. 588
    , 
    474 S.E.2d 518
     (1996). Guided by these
    standards, we proceed to consider the parties’ arguments.
    III.
    ANALYSIS
    4
    The Commissioner alleges that the circuit court erred in ignoring all of the
    evidence presented that Mr. Oakland drove while under the influence of controlled
    substances. Furthermore, the Commissioner asserts that Mr. Oakland neither objected to
    nor rebutted the evidence presented by the Commissioner during the proceedings below.
    The Commissioner contends that because sufficient evidence of DUI was presented
    below, the circuit court’s order reversing the OAH was an abuse of discretion.
    Conversely, Mr. Oakland alleges that the circuit court properly concluded that the hearing
    examiner was clearly wrong in concluding that he was under the influence of marijuana
    at the time the police officer stopped his vehicle.
    In reversing the OAH, the circuit court stated,
    The material findings of fact upon which the adverse legal
    conclusions are based are without any basic foundational
    support. For example, there is not an iota of testimony or
    evidence otherwise as to either of the investigating officer’s
    respective education, training, or experience regarding the
    identification of marijuana by sight and/or scent or how an
    individual who ingested such might appear if he/she were
    “under the influence.” The same can be said for the
    education, training, or experience of either officer regarding
    the administration and interpretation of “series of field
    sobriety tests” relied upon by the Hearing Examiner. If
    anything, the testimony on cross-examination evidenced that
    at least one of the officers was not knowledgeable about the
    proper administration of The Standardized Field Sobriety Test
    (SFST) developed by the U. S. Department of Transportation.
    Moreover, there is absolutely no testimony in the underlying
    record regarding either officer’s credentials whatsoever.
    Accordingly, the findings of fact are both arbitrary and
    capricious as well as an abuse of discretion and a clearly
    unwarranted exercise of discretion.
    5
    First, Mr. Oakland asserts that there was no evidence that the substance
    obtained by the officers was marijuana. However, the Commissioner contends that
    regardless of whether or not the green leafy substance was field or lab tested and
    regardless of whether or not the officers testified about their education, training, or
    experience regarding identification of marijuana by sight, Mr. Oakland admitted to
    Officer Wilhelm that he had a joint and that he smoked marijuana in the car while driving
    around Moundsville. The hearing examiner addressed this issue in the Final Order:
    Finally, the Petitioner’s Counsel asserted that the Officers
    failed to establish that the green leafy substance found in the
    motor vehicle was marijuana, and that the Petitioner had
    smoked the marijuana prior to operating the motor vehicle on
    the date of the stated offense. However, the Investigating
    Officer testified that he detected the odor of marijuana
    emitting from the vehicle, a partially burned marijuana
    cigarette was located within the motor vehicle and most
    significantly, the Petitioner admitted to the Officers while at
    the scene that he had smoked marijuana.
    (Emphasis added).
    We agree with the Commissioner that the hearing examiner did not need
    the results of field or lab tests to make a determination, based on the totality of the
    evidence, that the green leafy substance was marijuana and that Mr. Oakland had
    ingested the same while driving around Moundsville: Mr. Oakland admitted to both.
    Moreover, Mr. Oakland did not testify at the administrative hearing. Therefore, the
    officers’ testimony remains wholly unrebutted regarding Mr. Oakland’s admissions of
    possession and ingestion. Accordingly, we find that the issue of any field or lab testing
    of the marijuana is irrelevant.
    6
    Furthermore, contrary to the circuit court’s holding, there was sufficient
    evidence in the record for the hearing examiner to make the findings of fact which
    supported the Commissioner’s Order of Revocation because the hearing examiner found
    that the “Investigating Officer detected a strong odor which he identified as marijuana
    emanating from within the Petitioner’s vehicle.” The hearing examiner’s finding is
    supported by Officer Wilhelm’s testimony that
    [a]s soon as I got behind the vehicle, before I even activated
    my lights, I could smell the odor of marijuana. I walked up to
    the vehicle, asked the Defendant [Mr. Oakland] for his
    license, registration, and insurance. His window was down on
    the driver’s side. At that time I detected a strong odor of
    burned marijuana.
    Mr. Oakland’s counsel did not object to this particular testimony. We have
    repeatedly held that “[w]here objections were not shown to have been made in the trial
    court, and the matters concerned were not jurisdictional in character, such objections will
    not be considered on appeal.” Syl. Pt. 1, State Road Comm’n v. Ferguson, 
    148 W. Va. 742
    , 
    137 S.E.2d 206
     (1964). The Commissioner argues that because Mr. Oakland did not
    testify at the administrative hearing, all of Officer Wilhelm’s testimony remains
    unrebutted.
    The hearing examiner found as fact that the “Petitioner admitted to the
    Officers that he smoked marijuana.” This finding is substantiated by Officer Wilhelm’s
    testimony:
    7
    A. I asked Mr. Oakland if he had any marijuana in the car,
    and he replied yeah. He said, “I had a joint.”
    Q. So when you asked him about marijuana, he replied that he
    did have a joint?
    A. Yes.
    Q. Did he make any statements as to whether he had
    consumed ­
    A. Not at that point.
    Q. Not at that point. At any time did he though?
    A. Yes.
    Again, Mr. Oakland’s counsel did not object to this particular testimony,
    and Mr. Oakland did not rebut Officer Wilhelm’s testimony.
    Furthermore, the record reveals that the hearing examiner found that the
    officers conducted a search of “Petitioner’s motor vehicle and located a rolled ‘joint’
    containing a green leafy substance that they deemed to be marijuana” and a “partially
    burnt ‘joint’ containing a green leafy substance that they believed to be marijuana.” The
    OAH also found that the officers “located an Altoids tin which contained a green leafy
    substance that they concluded was marijuana.” These findings are supported by Officer
    Wilhelm’s testimony:
    Q. What was found?
    A. A [ sic] approximately 4-inch rolled joint, unburned, as
    well as a burned joint approximately a quarter inch long, and
    8
    an Altoids can that had a green leafy substance in it, had the
    odor of marijuana coming from it.
    Q. You referred to I believe a burned joint and an unburned
    joint. In your experience, what was the substance within the
    joint?
    A. I believed it to be marijuana....
    Q. What did you believe that green leafy substance to be
    within the Altoids can?
    A. Also marijuana.
    Once again, Mr. Oakland’s counsel did not object to this particular testimony, and Mr.
    Oakland did not rebut Officer Wilhelm’s testimony.
    Mr. Oakland asserts that while he admitted to smoking marijuana, there
    was no evidence offered or otherwise introduced reflecting any admission by Mr.
    Oakland that he was actually under the influence of marijuana while he was driving. He
    contends that of the three field sobriety tests administered to him, he passed one (HGN),
    failed one (the walk-and-turn test), and, as to the third, insufficient evidence exists to
    state whether he passed or failed (the one-leg stand test). While the circuit court
    concluded that there is not an “iota of evidence” regarding either officer’s education,
    training, or experience of either officer regarding the administration and interpretation of
    the field sobriety tests, and that there is “absolutely no testimony in the underlying record
    regarding either officer’s credentials whatsoever”, we find that these conclusions by the
    circuit court are not supported by the record.
    9
    The record reveals that Mr. Oakland received two decisional points on the
    one-leg stand test, and two or more decisional points constitutes failure of that test.
    Officer Wilhelm testified at the revocation hearing that one of the points assessed against
    Mr. Oakland was for raising his arms from his side. Officer Wilhelm also testified that
    Mr. Oakland put his foot down on count twenty-one of thirty on the one leg stand test.
    Mr. Oakland contends that Officer Wilhelm conceded on cross-examination that he could
    not recall the distance that Mr. Oakland raised his arms and that the standard prescribed
    by the National Highway Transportation Safety Administration (“NHTSA”) manual for
    the administration of standardized field sobriety tests allows a subject to raise his arms up
    to six inches without failing that portion of the test. However, our review of the record
    reveals that on cross-examination, Mr. Oakland’s counsel asked Officer Wilhelm,
    “Where did you learn the field sobriety tests? Who taught them to you?” Officer Wilhelm
    replied, “[a]t the West Virginia State Police Academy.” No further inquiry regarding
    Officer Wilhelm’s training was had.
    This Court has addressed the admissibility of field sobriety test results in
    administrative license revocation cases. In syllabus point 2 of White v. Miller, 
    228 W. Va. 797
    ,
    724 S.E.2d 768
     (2012), this Court 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,
    10
    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.
    
    Id.
     (emphasis added).      This Court has recently revisited the administration of field
    sobriety tests in Dale v. McCormick, 
    231 W. Va. 628
    , 
    749 S.E.2d 227
     (2013). Therein
    we held that,
    [u]nder the principles set out in White, Trooper Miller
    properly admitted evidence of his administration of the
    horizontal gaze nystagmus test to Ms. McCormick and her
    failure to pass the same. To the extent that Ms. McCormick
    believed Trooper Miller did not perform the test in
    accordance with the law, she was required to question
    Trooper Miller in this area. Moreover, even if Trooper Miller
    failed to satisfy some requirement for administering the
    horizontal gaze nystagmus test, such failure “went to the
    weight of the evidence, not its admissibility.” In re Flood
    Litigation Coal River Watershed, 
    222 W. Va. 574
    , 582, 
    668 S.E.2d 203
    , 211 (2008).
    231 W. Va. at 633, 749 S.E.2d at 232. In McCormick, instead of permitting a driver to
    remain silent at hearing regarding the officer’s credentials and administration of the field
    sobriety test then later object to their absence or admissibility, this Court required the
    driver to take an active role in questioning the officer about the administration of those
    tests and credentials. Id. Pursuant to this Court’s decision in McCormick, if Mr. Oakland
    had a serious inquiry or challenge to the quality or quantity of Officer Wilhelm’s
    response about his credentials, the onus was on Mr. Oakland to inquire further.
    11
    Accordingly, the circuit court erred in concluding that there was “absolutely no testimony
    in the underlying record regarding either officers’ credentials whatsoever.”
    Mr. Oakland asserts that nothing in White or Miller states that the officer
    may simply state that an operator has failed a standardized field sobriety test without also
    relating how such failure constitutes proof of the operator’s impairment. Mr. Oakland
    contends that in the matter sub judice, arresting Officer Wilhelm neglected to state how,
    exactly, failing a field sobriety test constitutes evidence of being under the influence of
    drugs. The record reveals that the OAH hearing examiner addressed Mr. Oakland’s
    argument about the admissibility of the field sobriety tests and the weight which the
    hearing examiner gave the tests:
    Although the Petitioner’s Counsel attempted to argue that the
    results of the field sobriety tests should not be considered in
    this matter since these test [ sic] were designed to be used by
    law enforcement officers as a guide to determine whether a
    driver is under the influence of alcohol, and not controlled
    substances or drugs, these tests are indicators of impairment.
    The battery of standardized field sobriety tests, which were
    developed by the National Highway Traffic Safety
    Administration after extensive research, are “divided
    attention” tests that are easily performed by most unimpaired
    people. They merely require a suspect to listen and follow
    instructions while performing simple physical movements.
    Impaired persons have difficulty with tasks requiring their
    attention to be divided between simple mental and physical
    exercises.
    “The ‘clearly wrong’ and the ‘arbitrary and capricious’ standards of review
    are deferential ones which presume an agency’s actions are valid as long as the decision
    12
    is supported by substantial evidence or by a rational basis.” Syllabus Point 3, In re
    Queen, 
    196 W. Va. 442
    , 
    473 S.E.2d 483
     (1996). We find that the hearing examiner’s
    decision was supported by the substantial evidence presented, and the circuit court
    abused its discretion in substituting its judgment for that of the fact finder below. It is
    unrebutted that Mr. Oakland, who was operating his motor vehicle on the streets of
    Moundsville, West Virginia, admitted to Officer Wilhelm that he had smoked marijuana
    while driving around town. Further, it is unrebutted that Mr. Oakland ignored stopping at
    a stop sign and had glassy eyes. The circuit court failed to address this other indicia of
    impairment in its order reversing the OAH’s order upholding Mr. Oakland’s license
    revocation. Even if we assumed for the sake of argument that the results of the field
    sobriety tests were inadmissible to prove that Mr. Oakland was under the influence of
    marijuana, sufficient evidence exists in this case to substantiate that Respondent was
    under the influence, as he admitted to smoking marijuana, had glassy eyes, and he roll-
    stopped through a stop sign.
    Lastly, Mr. Oakland alleges that the Commissioner was without jurisdiction
    to enter an order suspending his operator’s privileges in the absence of an accompanying
    arrest, because a lawful arrest is a prerequisite to the issuance of any order of
    suspension.1 The record indicates that Officer Wilhelm waited for the results of the
    1
    Although the circuit court’s Order reversing the OAH decision did not address the “non­
    arrest” issue, the record reveals that Mr. Oakland raised it at the OAH hearing and, again,
    in both his Petition for Judicial Review and his Brief and Memorandum of Law seeking
    (continued . . .)
    13
    blood test before placing Mr. Oakland under arrest for a criminal offense and that Mr.
    Oakland has never been arrested for any offense related to the events of October 12,
    2010.
    Mr. Oakland contends that W. Va. Code § 17C-5A-1(c) mandates that a
    lawful arrest occur. This Code section provides, in pertinent part, that
    [i]f upon examination of the written statement of the officer
    and the test results described in subsection (b) of this section,
    the commissioner shall determine that a person was arrested
    for an offense described in [W. Va. Code § 17C-5-2]. . . and
    that. . . at the time the person was arrested he or she was
    under the influence of. . . controlled substances or drugs, the
    commissioner shall make and enter an order revoking the
    person’s license to operate a motor vehicle in this state. . . .
    West Virginia Code § l7C-5A-1(c) (2008). Mr. Oakland contends that other relevant
    sections of the Code make clear that the Legislature contemplated that an actual arrest for
    driving under the influence of alcohol or drugs is a mandatory prerequisite to the issuance
    of any order of suspension. See, e.g.: W. Va. Code § 17C-5-4(c) (addressing a secondary
    chemical test “incidental to a lawful arrest” administered at the direction of the “arresting
    law-enforcement officer”) and (g) (speaking to contingency when “arresting officer”
    lacks training in administration of secondary chemical test); § 17C-5-7(a) (addressing
    appellate review by the circuit court of OAH’s decision. The circuit court’s order notes
    that Mr. Oakland raised other meritorious issues in favor of reversing OAH’s order in his
    petition for review, which were characterized as “holding water,” but the court felt it
    unnecessary to address them given that it believed that the reason for reversal stated in its
    Order was sufficient standing alone.
    14
    officer’s duties following “arrest” when the person “under arrest” refuses to submit to a
    secondary chemical test); § 17C-5-8 (noting that blood, breath or urine sample results are
    admissible if taken within two hours “from and after the time of arrest”); § 17C-5-9
    (codifying right of person “lawfully arrested” to demand a chemical test of her or his
    blood, breath or urine).
    However, we find Mr. Oakland’s argument misplaced. West Virginia Code
    § 17C-5A-2(f) (2010), the statute in effect on the date of the incident, makes it clear that
    the following elements were a mandatory prerequisite to the OAH upholding an order of
    suspension: (1) that there was a lawful “arrest” of the driver; or (2) that the driver “was
    lawfully taken into custody for the purpose of administering a secondary test[.]”
    (emphasis added).2 The record before us reveals that Officer Wilhelm stopped Mr.
    2
    West Virginia Code § 17C-5A-2(f) (2010) provided that,
    (f) 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
    (continued . . .)
    15
    Oakland’s vehicle after he observed him roll through a stop sign. Mr. Oakland, who had
    glassy eyes, then not only admitted to smoking marijuana, but failed two of the three field
    sobriety tests administered to him.        Officer Wilhelm accordingly handcuffed Mr.
    Oakland, placed him in his police cruiser, and transported him to the hospital for the
    purpose of administering the blood test.
    Mr. Oakland contends that the Moundsville Police Department has
    designated “breath” as its test of choice, and therefore, Officer Wilhelm, “the law-
    enforcement officer” “employ[ed]” by that agency, was without authority to require Mr.
    Oakland to submit to a blood test under threat of suspension of his license by hand-
    editing the implied consent form, to take him into custody to do so, and that he otherwise
    lacked any authority to engage in an ad hoc modification/designation of Moundsville’s
    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.
    16
    designated secondary test. Mr. Oakland maintains that because the secondary chemical
    test Wilhelm required Respondent to take was not a legal one, he cannot have been
    lawfully been taken into custody for purposes of administering a secondary chemical test
    within the meaning of W. Va. Code § 17C-5A-2(f). We disagree. There is nothing in our
    statutory law that prevented Officer Wilhelm from administering a blood test to
    determine if Mr. Oakland was impaired by marijuana. West Virginia Code § 17C-5-4
    (2010) provides that
    (a) 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 purpose of determining the
    alcoholic content of his or her blood.
    (Emphasis added). Pursuant to West Virginia Code § 17C-5-4, there was implied consent
    to a secondary chemical test. For all these reasons, we conclude that Mr. Oakland was
    lawfully taken into custody for purposes of administering a secondary test.
    Finally, the results of the blood test were never admitted during the
    proceedings below. Pursuant to syllabus point 1 of Albrecht v. State, 
    173 W. Va. 268
    ,
    
    314 S.E.2d 859
     (1984),
    [t]here are no provisions in either W. Va. Code, 17C-5-1
    (1981), et seq., or W. Va. Code, 17C-5A-1 (1981), et seq.,
    that require the administration of a chemical sobriety test in
    order to prove that a motorist was driving under the influence
    of alcohol or drugs for purposes of making an administrative
    revocation of his driver’s license.
    17
    In view of the driving behavior of Mr. Oakland observed by Officer Wilhelm, including
    the failure by Mr. Oakland to lawfully stop at a stop sign, Officer Wilhelm’s other
    observations, the results of the field sobriety tests, and Mr. Oakland’s admitted use of an
    illicit intoxicating substance, we conclude that the circuit court abused its discretion in
    reversing the OAH.
    IV.
    CONCLUSION
    For the foregoing reasons, we reverse the June 15, 2013, order of the
    Circuit Court of Marshall County and remand this matter for reinstatement of the
    Commissioner’s order revoking Mr. Oakland’s license to operate a motor vehicle.
    Reversed and Remanded.
    18