Everett Frazier v. Sandra B. Shaffer ( 2021 )

STATE OF WEST VIRGINIA FILED
SUPREME COURT OF APPEALS
February 19, 2021
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Everett Frazier,
Commissioner of the West Virginia Division of Motor Vehicles,
Respondent Below, Petitioner
vs.) No. 20-0314 (Marion County CC-24-2019-AA-1)
Sandra B. Shaffer,
Petitioner Below, Respondent
MEMORANDUM DECISION
Petitioner Everett Frazier, Commissioner of the West Virginia Division of Motor Vehicles
(“DMV”), by counsel Janet E. James, appeals the order of the Circuit Court of Marion County,
entered on March 2, 2020, which reversed the order of the Office of Administrative Hearings and
reinstated the driving privileges of respondent Sandra B. Shaffer. Respondent appears by counsel
Michael D. Simms.
The Court has considered the parties’ briefs and the 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
West Virginia 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.
In the instant case, Deputy Jimmy Bledsoe of the Marion County Sheriff’s Office observed
respondent’s vehicle straddling the center line and also running off of the right of Kingmont Road
in Marion County, West Virginia. Deputy Bledsoe initiated a stop of respondent’s vehicle and
noted that respondent had a white powdery substance on and around her nose and the odor of
alcohol on her breath. Further, Deputy Bledsoe noted that respondent had slow and slurred speech,
bloodshot eyes, had a bottle of Bud Light in her car, and admitted that she had consumed beer
prior to the stop.
Deputy Bledsoe explained the horizontal gaze nystagmus (“HGN”) test to respondent.
During the medical assessment portion of the test, Deputy Bledsoe noted that she had equal pupils
and equal tracking, and no resting nystagmus, which rendered respondent a viable candidate for
the test. During the test, respondent showed impairment because she had lack of smooth pursuit in
her left and right eyes, and distinct and sustained nystagmus at maximum deviation in both eyes.
1
Respondent also showed impairment during the walk and turn test where she was unable to keep
her balance, stopped while walking, stepped off the line, missed heel-to-toe, and raised her arms
to balance. Deputy Bledsoe reported that respondent nearly fell down during this test. During the
one-leg stand test, respondent showed impairment because she swayed while balancing, used her
arms to balance, and put her foot down.
Deputy Bledsoe then arrested respondent for DUI. Prior to administering the Intoximeter
test, a secondary chemical test, Deputy Bledsoe observed respondent for twenty minutes to ensure
that she had not ingested any food, drink, or other foreign matter. Deputy Bledsoe also ran checks
on the Intoximeter testing instrument, confirming that it was functioning properly. Respondent
refused to submit to the Intoximeter test at 9:12 p.m. Per the DMV file, respondent admitted that
she had consumed one beer prior to the stop and was under the influence of alcohol, drugs or
controlled substances. 1 Respondent further advised Deputy Bledsoe that she took Lortab, Zanaflex
and Tramadol that evening.
The DMV issued a revocation of respondent’s driver’s license for DUI on May 23, 2012.
On June 25, 2012, respondent requested a hearing on the revocation of her license and refusal to
submit to the designated secondary chemical test. After multiple continuances of the evidentiary
hearing, the Office of Administrative Hearings (“OAH”) conducted an evidentiary hearing on
March 17, 2017. 2
Deputy Bledsoe was not subpoenaed as a witness at the OAH hearing and he did not appear
before the OAH. Petitioner argued that it was not required to call Deputy Bledsoe and respondent
had the right to subpoena the officer if she wanted to secure his presence at the hearing. Over
respondent’s objection, the hearing examiner admitted the DMV’s agency records, which included
the DUI information sheet, a printout from the secondary chemical test, and a copy of respondent’s
driving record. Further, the OAH specifically advised respondent that she was entitled to contest
the exhibits within the DMV’s agency record. Respondent’s counsel vouched the record with what
he would have cross-examined Deputy Bledsoe about, including respondent’s driving at the time
1
The circuit court noted that respondent later testified that she was “confused regarding
the investigating officer’s post-arrest questioning; that she did not mean to say that she was under
the influence; and that she responded affirmatively because she knew that she had taken her
prescribed medication.”
2
The hearing was originally scheduled on November 29, 2012. Respondent claims that she
was prejudiced by the pre-hearing delay prior to the OAH hearing. She argues that had this matter
been timely set for a hearing before the OAH within 180 days, it would have been considered prior
to this Court’s February 2014, decision Dale v. Doyle, 233 W. Va. 601, 760 S.E.2d 415 (2014),
and thus the officer would have been required to attend the hearing. However, we find no merit in
respondent’s argument in this regard. Here, the record reflects that respondent filed six separate
motions to continue the OAH hearing; accordingly, we are not persuaded by her arguments of
prejudice as to delay.
2
of the traffic stop, the traffic stop itself, the administration of the preliminary breath test to
respondent, and the administration of and respondent’s performance on, the field sobriety tests. 3
Respondent testified at the OAH hearing that she was taking Flexeril, Lortab, and “a couple
other nerve pills” at the time of her traffic stop. Prior to the stop, she testified that she had gone to
her friend Linda Simmons’ house to take her blood pressure, and while there, she consumed half
a beer. Respondent denied being under the influence, denied that her prescribed medications had
affected her driving, and denied that there was a bottle of beer in her vehicle. Further, respondent
denied that she exhibited any indicia of impairment and testified that she ostensibly passed the
field sobriety tests including the walk-and-turn test and one-leg stand tests. Respondent also
offered testimony from, Brenda Shuman-Riley, her co-worker, who testified as to her observations
of respondent on the date in question. Per Ms. Shuman-Riley, respondent’s face was red and
respondent had been complaining of numbness. Further, Ms. Shuman-Riley recalled that she did
not observe respondent drink any alcoholic beverages while at work on the day in question.
Respondent then introduced three exhibits, including letters from Ms. Shuman-Riley and Ms.
Simmons. Ms. Simmons’ letter confirmed respondent’s testimony that respondent had been at her
house prior to the traffic stop and that Ms. Simmons had checked respondent’s blood pressure
because respondent’s face was red and the left side of her face was numb. Ms. Simmons’ letter
also provided that respondent consumed half of a can of beer and ate a piece of pizza while at her
house on the day in question.
After considering the evidence, the OAH entered a final order on June 10, 2019, which
upheld the revocation of respondent’s driver’s license for DUI and for refusal to submit to the
secondary chemical test. The OAH found
that [respondent] failed to successfully dispute 1) that she ha[d] consumed alcohol,
drugs, controlled substances, or any combination of the aforementioned prior to
operating a motor vehicle; 2) that she exhibited indicia of intoxication and that she
was unable to adequately perform field sobriety tests; and 3) that she drove a motor
vehicle in this state while under the influence.
The hearing examiner specifically found that the investigating officer observed
respondent’s erratic driving behaviors and detected the odor of an alcoholic beverage emitting
from respondent’s breath. Additionally, the hearing examiner concluded that the investigating
officer lawfully arrested respondent for driving while under the influence of alcohol, controlled
substances, or drugs. The hearing examiner determined that respondent’s testimony was not
credible. As to this finding, the hearing examiner noted that respondent’s testimony was “self-
serving at best, first denying that she exhibited indicia of impairment and then offering excuses for
such behaviors. [Respondent] alluded to a possible medical issue, which may have caused her to
appear impaired, and then admitted, despite having concerns about her health, to consuming an
alcoholic beverage prior to driving the motor vehicle.”
3
Deputy Bledsoe administered a preliminary breath test;, however, the hearing examiner
expressly did not consider the results because Deputy Bledsoe noted that the preliminary breath
test was taken after only a fourteen minute observation period.
3
On July 11, 2019, respondent appealed the matter to the Circuit Court of Marion County.
The circuit court held a hearing on the appeal on January 29, 2020. On March 2, 2020, the circuit
court reversed the OAH’s final order, finding that the DMV’s file documents are not automatically
admitted into the record. The circuit court further found that the DMV’s agency file could not be
admitted without the testimony of the investigating officer.
In its order, the circuit court noted that “[petitioner] offered no live testimony from any
witness at the hearing.” Additionally, the circuit court’s order provided that “the OAH made no
findings regarding [respondent’s] testimony which directly contradicted the information in [the
DMV file] regarding the implied consent warning, the administration of the secondary chemical
test and [respondent’s] submission to same.” Ultimately, the circuit court concluded that “W.Va.
Code 29-A-5-2(b) (sic) describes the designation of the record for purposes of appeal. It is not a
rule mandating the automatic admission of [the DMV’s file] in this administrative proceeding.
Applying section twenty-nine a (sic) in this fashion is improper, as it directly conflicts with the
application of the West Virginia Rules of Evidence.”
Further, the circuit court found that “the OAH’s decision to admit Deputy Bledsoe’s reports
without proper authentication, to accept all of the information contained therein as true, to find –
based solely on those documents – that [petitioner] had met its burden of proof on all relevant
issues, including the issue of implied consent, and to look to [respondent] to rebut or “successfully
dispute” the information, impermissibly shifted the burden of proof to [respondent], and was
arbitrary, capricious, and an abuse of discretion.” Finally, the circuit court found that “[g]iven that
substantially all of the OAH’s factual findings, discussion and conclusions of law in its Final Order
were based on [petitioner’s] improperly admitted documents, this [c]ourt concludes that the OAH’s
affirmation of [petitioner’s] order of revocation was arbitrary, capricious, an abuse of discretion,
and clearly wrong in view of the reliable, probative and substantial evidence on the whole record.”
Petitioner filed this appeal challenging the circuit court’s March 2, 2020, order. On appeal,
petitioner raised two assignments of error. First, petitioner argues that the circuit court erred in
finding that the DMV’s agency file cannot be admitted into evidence pursuant to West Virginia
Code § 29A-5-2(b). Next, petitioner claims that the circuit court erred when it found that the
absence of the investigating officer’s testimony at the OAH hearing precludes the DMV agency’s
file being admitted into evidence. We will address these assignments below.
In Frazier v. Fouch, No. 19-0350, 2020 WL 7222839 (W. Va. Nov. 6, 2020), we reiterated
the standard of review to govern this matter.
“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).
“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
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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. Pts. 1 and 2, Fouch. Guided by this standard, we review petitioner’s arguments.
Petitioner initially argues that the circuit court erred when it found that the DMV’s agency
file cannot be admitted into evidence pursuant to West Virginia Code § 29A-5-2(b). Respondent
maintains that the circuit court properly held that that the DMV file was improperly admitted
before the OAH. Consistent with our ruling in Fouch, we agree with petitioner.
In Syllabus Point 3 of Fouch, we held:
“In an administrative hearing conducted by the Division of Motor Vehicles,
a statement of an arresting officer, as described in W. Va. Code § 17C-5A-1(b)
(2004) (Repl. Vol. 2004), that is in the possession of the Division and is offered
into evidence on behalf of the Division, is admissible pursuant to W. Va. Code §
29A-5-2(b) (1964) (Repl. Vol. 2002).” Syl. Pt. 3, Crouch v. W. Va. Div. of Motor
Vehicles, 219 W. Va. 70, 631 S.E.2d 628 (2006).
In Fouch, we found that the circuit court erred by ruling that the DMV’s file, including the
DUI information sheet, should not have been admitted into evidence and considered by the OAH.
The Fouch Court also addressed earlier memorandum decisions from this Court wherein we
discussed that the admission of the DMV file is mandatory before the OAH. Specifically, the
Fouch decision referenced our 2018 decision where we noted
[w]e have previously stated that “[w]ithout a doubt, the Legislature enacted
W. Va. Code § 29A-5-2(b) with the intent that it would operate to place into
evidence in an administrative hearing [‘a]ll evidence, including papers, records,
agency staff memoranda and documents in the possession of the agency, of which
it desires to avail itself.[’]” Crouch, 219 W.Va. [at] 76, 631 S.E.2d [at] 634. As
evidenced by the use of the word “shall,” admission of the evidence identified in
the statute is mandatory. Id. The secondary chemical test result was in the DMV’s
possession, and the DMV sought to avail itself of the result. Accordingly, the result
of the secondary chemical test should have been admitted into evidence, subject to
a rebuttable presumption as to its accuracy. Id. at 76, n.12, 631 S.E.2d at 634, n.12
(“We point out that the fact that a document is deemed admissible under the statute
does not preclude the contents of the document from being challenged during the
hearing. Rather, the admission of such a document into evidence merely creates a
rebuttable presumption as to its accuracy.”).
Fouch, 2020 WL 7222839, at *6 (quoting Reed v. Lemley, No. 17-0797, 2018 WL 4944553, at *4
(W. Va. Oct. 12, 2018) (memorandum decision)).
Petitioner also alleges that the circuit court erred in finding that the absence of Deputy
Bledsoe’s testimony at the OAH hearing precluded the DMV agency file from being admitted into
5
evidence. 4 Consistent with Fouch and the other decisions cited by this Court therein, testimony
from Deputy Bledsoe was not required for the OAH to admit and consider petitioner’s records.
Thus, we find that the OAH appropriately accepted petitioner’s file and the DUI information sheet
into evidence in this matter without testimony from Deputy Bledsoe and the circuit court’s finding
to the contrary was erroneous.
Given that the DMV file was appropriately before the OAH, we presume that the OAH
gave this evidence, as well as the testimony and evidence presented by respondent, the weight that
the OAH thought it deserved. 5 Contrary to our established precedent, it does not appear that the
circuit court gave deference to the factual findings or the credibility determinations made by the
OAH when it concluded that the DMV file would have been “credibly contradicted by
[respondent’s] sworn testimony.” As noted above, in the order revoking respondent’s license, the
hearing examiner found that respondent’s testimony was not credible and was “self-serving at
best.”
For the foregoing reasons, the circuit court’s March 2, 2020, order is hereby reversed, and
the case is remanded for entry of an order consistent with this decision.
Reversed and remanded.
ISSUED: February 19, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
DISSENTING:
Justice William R. Wooton
4
As we noted in Fouch, “[t]he clear, unambiguous language of [West Virginia Code §
17C-5A-2(c)(3)] provides that ‘the party’ seeking to compel a witness to appear at an OAH hearing
has the responsibility to request the subpoena, and the responsibility to petition the circuit court
for enforcement of the subpoena when the witness fails to appear.” Fouch, 2020 WL 7222839, at
*8. If respondent had wanted to procure Deputy Bledsoe’s appearance at the OAH hearing,
respondent should have subpoenaed him.
5
To the extent that the circuit court showed a preference for live testimony over
documentary evidence this Court has noted that “[o]ur law recognizes no such distinction in the
context of drivers’ license revocation proceedings.” Groves v. Cicchirillo, 225 W. Va. 474, 481,
694 S.E.2d 639, 646 (2010). Inasmuch as the DMV file was properly admitted, it would be
improper for the circuit court to show a preference for live testimony over this documentary
evidence.
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