Clint Casto v. Everett Frazier, Commissioner, West Virginia Division of Motor Vehicle ( 2023 )


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  •           IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
    January 2023 Term
    _______________                               FILED
    No. 21-0371                              June 15, 2023
    _______________                           released at 3:00 p.m.
    EDYTHE NASH GAISER, CLERK
    SUPREME COURT OF APPEALS
    OF WEST VIRGINIA
    CLINT CASTO,
    Petitioner Below, Petitioner,
    V.
    EVERETT FRAZIER, COMMISSIONER,
    WEST VIRGINIA
    DIVISION OF MOTOR VEHICLES,
    Respondent Below, Respondent.
    _____________________________________________
    Appeal from the Circuit Court of Kanawha County
    The Honorable Maryclaire Akers, Judge
    Civil Action No. 20-AA-86
    REVERSED AND REMANDED
    _____________________________________________
    Submitted: April 18, 2023
    Filed: June 15, 2023
    Jeremy B. Cooper, Esq.                        Patrick Morrisey, Esq.
    Blackwater Law PLLC                           Attorney General
    Aspinwall, Pennsylvania                       Elaine L. Skorich, Esq.
    Attorney for Petitioner                       Assistant Attorney General
    Janet E. James, Esq.
    Assistant Attorney General
    Charleston, West Virginia
    Attorneys for Respondent
    JUSTICE BUNN delivered the Opinion of the Court.
    JUSTICE ARMSTEAD concurs, in part, and dissents, in part, and reserves the right to
    file a separate opinion.
    SYLLABUS BY THE COURT
    1.     “Upon judicial review of a contested case under the West Virginia
    Administrative Procedure Act, Chapter 29A, Article 5, Section 4(g), the circuit court may
    affirm the order or decision of the agency or remand the case for further proceedings. The
    circuit court shall reverse, vacate or modify the order or decision of the agency if the
    substantial rights of the petitioner or petitioners have been prejudiced because the
    administrative findings, inferences, conclusions, decisions or order are: ‘(1) In violation of
    constitutional or statutory provisions; or (2) In excess of the statutory authority or
    jurisdiction of the agency; or (3) Made upon unlawful procedures; or (4) Affected by other
    error of law; or (5) Clearly wrong in view of the reliable, probative and substantial evidence
    on the whole record; or (6) Arbitrary or capricious or characterized by abuse of discretion
    or clearly unwarranted exercise of discretion.’” Syllabus point 2, Shepherdstown Volunteer
    Fire Department v. State ex rel. West Virginia Human Rights Commission, 
    172 W. Va. 627
    , 
    309 S.E.2d 342
     (1983).
    2.     “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[(g)] 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).
    i
    3.     “Some of the rules of statutory construction that we have utilized are:
    Effect should be given to the spirit, purpose and intent of the lawmakers without limiting
    the interpretation in such a manner as to defeat the underlying purpose of the statute. Each
    word of a statute should be given some effect and a statute must be construed in accordance
    with the import of its language. Undefined words and terms used in a legislative enactment
    will be given their common, ordinary and accepted meaning.” Syllabus point 6, State ex
    rel. Cohen v. Manchin, 
    175 W. Va. 525
    , 
    336 S.E.2d 171
     (1984).
    4.     A person is “under the influence” if the person (1) consumed, used,
    took, or ingested alcohol, controlled substances, or drugs and (2) the alcohol, controlled
    substances, drugs, or any combination thereof impaired the person’s ability to operate a
    motor vehicle with ordinary care.
    ii
    BUNN, Justice:
    Petitioner Clint Casto appeals from an order entered April 9, 2021, by the
    Circuit Court of Kanawha County that affirmed an order entered by the Office of
    Administrative Hearings (“OAH”). The OAH’s order upheld the administrative revocation
    of Mr. Casto’s driver’s license for driving under the influence of controlled substances or
    drugs. On appeal to this Court, Mr. Casto argues that the evidence is not sufficient to
    support a finding that he was driving under the influence. Respondent, Everett Frazier,1
    Commissioner of the West Virginia Division of Motor Vehicles (“DMV”), contends that
    Mr. Casto’s license revocation was proper.
    We conclude that the evidence in this case is not sufficient to support Mr.
    Casto’s license revocation. Therefore, we reverse the circuit court’s April 9, 2021 order
    affirming the OAH’s order that upheld the revocation and remand this case for an order
    rescinding the DMV’s revocation order and reinstating Mr. Casto’s driver’s license.
    1
    During the pendency of this case, the DMV Commissioner has changed;
    thus, “the necessary substitution of parties [has been made] pursuant to Rule 41(c) of the
    West Virginia Rules of Appellate Procedure.” Frazier v. Braley, No. 20-0726, 
    2022 WL 633848
    , at *1 n.1 (W. Va. Mar. 4, 2022) (memorandum decision).
    1
    I.
    FACTUAL AND PROCEDURAL HISTORY
    At approximately 3:00 a.m. on April 13, 2019, Patrolman R.C. Montagu of
    the Charleston Police Department observed Mr. Casto parking diagonally across multiple
    spaces in a convenience store parking lot. Patrolman Montagu reported that Mr. Casto
    appeared unsteady upon exiting his vehicle, left the vehicle running while he went into the
    store, looked around, and exited the store without making a purchase. When Mr. Casto left
    the store, Patrolman Montagu approached him and began an investigation to determine
    whether Mr. Casto had been driving under the influence of alcohol, controlled substances,
    and/or drugs. Mr. Casto denied having ingested any of these substances, and his
    preliminary breath test at the scene showed no presence of alcohol in his system. Patrolman
    Montagu noted that Mr. Casto had bloodshot eyes and administered three field sobriety
    tests. There was no evidence of impairment from the horizontal gaze nystagmus test, but
    Mr. Casto performed the one-leg stand test improperly and incorrectly estimated twenty-
    five seconds to be thirty seconds, and he also had difficulties with the walk-and-turn test.
    Patrolman Montagu, who had been trained to detect drug use, administered
    two additional field tests and reported that Mr. Casto’s performance on these tests
    “indicated a high probability of impairment.” Patrolman Montagu’s report regarding his
    encounter with Mr. Casto does not state whether he found any evidence of drug use or
    consumption on Mr. Casto or in his vehicle. Patrolman Montagu placed Mr. Casto under
    arrest for driving under the influence, then asked him if he would submit to a blood test, as
    2
    the secondary chemical test. Mr. Casto agreed to submit to a blood test and also asked for
    a blood test himself. Mr. Casto’s blood sample was taken shortly after his arrest, and the
    West Virginia State Police Forensic Laboratory analyzed it. Mr. Casto’s blood sample was
    subjected to a ninety-panel screen, and it was negative for all tested substances.
    Despite the negative blood test, the DMV administratively revoked Mr.
    Casto’s driver’s license for driving under the influence of controlled substances or drugs
    based upon the results of the field sobriety tests and Patrolman Montagu’s observations
    during the traffic stop. Mr. Casto appealed to the OAH. During the hearing before the OAH,
    Mr. Casto testified that on the night of his arrest, he had just finished working his second
    job of the day,2 that he had a right leg injury that might have affected his performance on
    the field sobriety tests, and that he was wearing “steel toed tennis shoes” that might have
    also affected his performance on the tests. The record is unclear as to whether Mr. Casto
    told Patrolman Montagu about these purported issues on the night of the arrest. The OAH
    upheld the DMV’s revocation. Mr. Casto then appealed to the Circuit Court of Kanawha
    County, which also upheld his license revocation by order entered April 9, 2021. Mr. Casto
    now appeals to this Court.
    2
    Mr. Casto worked for a ticket vendor during the day and drove for a
    passenger transportation service in the evening hours.
    3
    II.
    STANDARD OF REVIEW
    This appeal is before the Court upon Mr. Casto’s unsuccessful appeals to the
    OAH and the circuit court. As an administrative appeal, the West Virginia Administrative
    Procedures Act governs the scope of judicial review by the circuit court and this Court. See
    generally W. Va. Code § 29A-5-4. Regarding the nature of the circuit court’s review, we
    have held that,
    [u]pon judicial review of a contested case under the
    West Virginia Administrative Procedure Act, Chapter 29A,
    Article 5, Section 4(g), the circuit court may affirm the order
    or decision of the agency or remand the case for further
    proceedings. The circuit court shall reverse, vacate or modify
    the order or decision of the agency if the substantial rights of
    the petitioner or petitioners have been prejudiced because the
    administrative findings, inferences, conclusions, decisions or
    order are: “(1) In violation of constitutional or statutory
    provisions; or (2) In excess of the statutory authority or
    jurisdiction of the agency; or (3) Made upon unlawful
    procedures; or (4) Affected by other error of law; or (5) Clearly
    wrong in view of the reliable, probative and substantial
    evidence on the whole record; or (6) Arbitrary or capricious or
    characterized by abuse of discretion or clearly unwarranted
    exercise of discretion.”
    Syl. pt. 2, Shepherdstown Volunteer Fire Dep’t v. State ex rel. W. Va. Hum. Rts. Comm’n,
    
    172 W. Va. 627
    , 
    309 S.E.2d 342
     (1983). This same standard also applies to this Court’s
    review:
    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[(g)] and reviews questions of law
    presented de novo; findings of fact by the administrative
    4
    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). Finally, to the extent
    we must review the circuit court’s construction and application of the governing statutes,
    we review those determinations de novo. See Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 
    194 W. Va. 138
    , 
    459 S.E.2d 415
     (1995) (“Where the issue on an appeal from the circuit court
    is clearly a question of law or involving an interpretation of a statute, we apply a de novo
    standard of review.”).
    III.
    DISCUSSION
    Mr. Casto assigns two errors on appeal to this Court: (1) the circuit court
    erred by upholding his license revocation because there was insufficient evidence to prove
    by a preponderance of the evidence that he had ingested alcohol, drugs, and/or controlled
    substances and (2) his revocation order should be vacated because this case is still pending
    after the OAH’s dissolution.3 The DMV responds that neither of these assigned errors
    warrants reversal of the circuit court’s order. We disagree.
    Whether the DMV properly revoked Mr. Casto’s driver’s license for driving
    under the influence of alcohol, controlled substances, or drugs is governed by statute and
    3
    Because our resolution of Mr. Casto’s first assignment of error is
    dispositive, it is not necessary for us to address the second.
    5
    guided by our rules of statutory construction. “The primary object in construing a statute
    is to ascertain and give effect to the intent of the Legislature.” Syl. pt. 1, Smith v. State
    Workmen’s Comp. Comm’r, 
    159 W. Va. 108
    , 
    219 S.E.2d 361
     (1975). We have summarized
    several other principles that govern our consideration of statutes as follows:
    Some of the rules of statutory construction that we have
    utilized are: Effect should be given to the spirit, purpose and
    intent of the lawmakers without limiting the interpretation in
    such a manner as to defeat the underlying purpose of the
    statute. Each word of a statute should be given some effect and
    a statute must be construed in accordance with the import of its
    language. Undefined words and terms used in a legislative
    enactment will be given their common, ordinary and accepted
    meaning.
    Syl. pt. 6, State ex rel. Cohen v. Manchin, 
    175 W. Va. 525
    , 
    336 S.E.2d 171
     (1984).
    Moreover, “[i]t is always presumed that the legislature will not enact a meaningless or
    useless statute.” Syl. pt. 4, State ex rel Hardesty v. Aracoma-Chief Logan No. 4523,
    Veterans of Foreign Wars of the U.S., Inc., 
    147 W. Va. 645
    , 
    129 S.E.2d 921
     (1963).
    Therefore, “[a] cardinal rule of statutory construction is that significance and effect must,
    if possible, be given to every section, clause, word or part of the statute.” Syl. pt. 3,
    Meadows v. Wal-Mart Stores, Inc., 
    207 W. Va. 203
    , 
    530 S.E.2d 676
     (1999).
    Pursuant to the statute that was in effect at the time of Mr. Casto’s license
    revocation, the DMV could administratively revoke a driver’s license if he drove under
    conditions that would have constituted the crime of driving under the influence of alcohol,
    controlled substances, or drugs:
    6
    If, upon examination of the written statement of the
    officer and the tests [sic] results described in subsection (b) of
    this section, the commissioner determines that a person
    committed an offense described in section two [§ 17C-5-2],
    article five of this chapter . . . and that the results of any
    secondary test or tests indicate that at the time the test or tests
    were administered the person had, in his or her blood, an
    alcohol concentration of eight hundredths of one percent or
    more, by weight, or at the time the person committed the
    offense he or she was under the influence of alcohol, controlled
    substances or drugs, the commissioner shall make and enter an
    order revoking or suspending the person’s license to operate a
    motor vehicle in this State.
    W. Va. Code § 17C-5A-1(c) (eff. 2008) (emphasis added).4 The criminal statute that was
    in effect at the time of the events at issue in this case and that prohibited Mr. Casto’s alleged
    misconduct provides that
    [a]ny person who drives a vehicle in this state: (i) while
    he or she is in an impaired state or (ii) while he or she is in an
    impaired state but has an alcohol concentration in his or her
    blood of less than fifteen hundredths of one percent by weight,
    is guilty of a misdemeanor[.]
    W. Va. Code § 17C-5-2(e) (eff. 2016) (emphasis added).5
    4
    The recent statutory amendments to the driver’s license revocation
    procedure now require a court order finding that a driver has violated specified driving
    laws or a driver’s conviction of driving under the influence to support a driver’s license
    revocation by the DMV. See generally W. Va. Code § 17C-5A-1a (eff. 2020).
    5
    The Legislature has also twice amended this statute, but the specific
    language applicable to our decision of this case has not changed. See W. Va. Code § 17C-
    5-2(e) (eff. 2020); W. Va. Code § 17C-5-2(e) (eff. 2023).
    7
    In denying Mr. Casto’s appeals below, both the OAH and the DMV
    determined that because Mr. Casto had driven under the influence of controlled substances
    or drugs, his license revocation was proper. See W. Va. Code § 17C-5A-1(c). Two
    questions must be answered to determine if Mr. Casto’s driver’s license revocation should
    be upheld: (1) was Mr. Casto driving and (2) if Mr. Casto was driving, was he under the
    influence of controlled substances or drugs while he was driving. See id.
    To answer the first query, the parties do not dispute that Mr. Casto operated
    a motor vehicle shortly before Patrolman Montagu began his investigation. The record
    demonstrates that Patrolman Montagu saw Mr. Casto drive into the convenience store lot
    and park, and Mr. Casto admitted that he drove following the end of his second work shift
    of the day.
    However, the parties disagree on the answer to the second inquiry: whether
    Mr. Casto was under the influence of controlled substances or drugs while driving. The
    criminal statute that forms the basis for Mr. Casto’s administrative license revocation
    requires that the individual “drives a vehicle in this [S]tate . . . while he or she is in an
    impaired state.” W. Va. Code § 17C-5-2(e). The statutory definition of “impaired state,” to
    which § 17C-5-2(e) refers, provides:
    (1) “Impaired State” means a person:
    (A) Is under the influence of alcohol;
    (B) Is under the influence of any controlled substance;
    8
    (C) Is under the influence of any other drug or inhalant
    substance;
    (D) Is under the combined influence of alcohol and any
    controlled substance or any other drug; or
    (E) Has an alcohol concentration in his or her blood of
    eight hundredths of one percent or more, by weight.
    W. Va. Code § 17C-5-2(a).6 While “impaired state” contemplates a driver being “under the
    influence” of one or more of the specified substances, the term “under the influence” is not
    explicitly defined. See id. Therefore, we consider the commonly accepted usage of this
    phrase to determine its meaning. See Syl. pt. 6, in part, Cohen, 
    175 W. Va. 525
    , 
    336 S.E.2d 171
    .
    6
    This statutory language also remains the same following two recent
    amendments to this section. See W. Va. Code § 17C-5-2(a) (eff. 2020); W. Va. Code
    § 17C-5-2(a) (eff. 2023).
    9
    Generally, “under the influence” contemplates that a person ingested,7
    consumed,8 took,9 or used10 a particular substance, such as alcohol, drugs, or controlled
    7
    See, e.g., State v. Taylor, 
    966 N.W.2d 510
    , 518 (Neb. 2021) (“[T]he phrase
    ‘under the influence of alcoholic liquor or of any drug’ requires the ingestion of alcohol or
    drugs in an amount sufficient to impair to any appreciable degree the driver’s ability to
    operate a motor vehicle in a prudent and cautious manner.” (emphasis added; citation
    omitted)); Cotter v. State, 
    738 P.2d 506
    , 508 (Nev. 1987) (per curiam) (concluding that
    meaning of “under the influence” “embraces only those individuals who ingest
    [enumerated] substances . . . to a degree that renders them incapable of safely driving or
    exercising actual physical control of the vehicle” (emphasis added; quotations and citation
    omitted)).
    8
    See, e.g., State v. Souther, 
    169 A.3d 927
    , 928 n.1 (Me. 2017) (“[A] person
    is under the influence if the person’s physical or mental faculties are impaired however
    slightly or to any extent by the substance or substances that the person consumed.”
    (emphasis added; quotations and citation omitted)); People v. Bowden, No. 357976, 
    2022 WL 16859166
    , at *7, ___ N.W.2d ___, ___ (Mich. Ct. App. Nov. 10, 2022) (“To prove a
    person was ‘under the influence’ of alcoholic liquor, a controlled substance, or other
    intoxicating substance, the prosecution must prove that defendant’s ability to drive was
    substantially and materially affected by consumption of the relevant substance.” (emphasis
    added; quotations and citations omitted)).
    9
    See, e.g., State v. Parisi, 
    831 S.E.2d 236
    , 243-44 (N.C. 2019) (“[A] person
    is under the influence of intoxicating liquor or narcotic drugs . . . when he has drunk a
    sufficient quantity of intoxicating beverages or taken a sufficient amount of narcotic drugs
    to cause him to lose the normal control of his bodily or mental faculties, or both, to such
    an extent that there is an appreciable impairment of either or both of those faculties.”
    (emphasis added; quotations and citation omitted)); Spreeman v. State, 
    278 P.3d 1159
    ,
    1164 (Wyo. 2012) (“[T]he phrase ‘under the influence of intoxicating liquor’ means that a
    person has taken into his stomach a sufficient quantity of intoxicating liquor so as to
    deprive him of the normal control of his bodily or mental faculties.” (emphasis added;
    quotations and citation omitted)).
    10
    See, e.g., People v Bui, 
    103 Cal. Rptr. 2d 908
    , 913 (Ct. App. 2001) (“A
    person is under the influence . . . when, as a result of using methamphetamine, his physical
    or mental abilities are impaired to such a degree that he no longer has the ability to drive
    his vehicle with the caution characteristic of a sober person of ordinary prudence under the
    same or similar circumstances.” (emphasis added)); State v. Stiles, 
    998 P.2d 703
    , 708 (Or.
    Ct. App. 2000) (“[T]he phrase ‘being under the influence of a controlled substance’ . . .
    necessarily encompasses all cases in which the state contends that the defendant’s use of a
    10
    substances, and that substance has impaired the person’s ability to operate a motor vehicle.
    While this Court has not defined the term, many other courts have used the plain and
    ordinary meaning to apply similar statutes. For example, the Court of Appeals of South
    Carolina has said that “[a] driver is ‘under the influence’ when ingestion of drugs or alcohol
    results in the impairment of the driver’s faculties, impairs the driver’s ability to operate the
    vehicle with reasonable care, or impairs the driver’s ability to drive as a prudent driver
    would operate the vehicle.” Kennedy v. Griffin, 
    595 S.E.2d 248
    , 251 (S.C. Ct. App. 2004)
    (citing 
    S.C. Code Ann. § 56-5-2930
    ). The Appellate Court of Illinois defines “under the
    influence” similarly: “A defendant is under the influence when, as a result of consuming
    alcohol or any other intoxicating substance, his mental or physical faculties are so impaired
    as to reduce his ability to think and act with ordinary care.” People v. Halerewicz, 
    2 N.E.3d 333
    , 338-39 (Ill. App. Ct. 2013) (referencing 625 Ill. Comp. Stat. 5/11-501(a)(2);
    quotations and citation omitted). Likewise, the Court of Appeals of Georgia recognizes that
    the operator of a motor vehicle is under the influence of alcohol “‘to the extent it is less
    safe for the person to drive’” a motor vehicle than if he were not so affected. Moss v. State,
    
    390 S.E.2d 268
    , 269 (Ga. Ct. App. 1990) (quoting 
    Ga. Code Ann. § 40-6-391
    (a)(1)).11
    Applying the plain language of the statute and consistent with this persuasive authority, we
    controlled substance materially contributed to culpable impairment.” (emphasis added;
    citation omitted)).
    11
    See also Bloomfield Twp. v. Kane, 
    839 N.W.2d 505
    , 514 n.10 (Mich. Ct.
    App. 2013) (per curiam) (interpreting “under the influence” to “mean[] that the defendant
    was substantially deprived of normal control or clarity of mind” (quotations and citation
    omitted)).
    11
    now hold that a person is “under the influence” if the person (1) consumed, used, took, or
    ingested alcohol, controlled substances, or drugs and (2) the alcohol, controlled substances,
    drugs, or any combination thereof impaired the person’s ability to operate a motor vehicle
    with ordinary care.
    Considering the facts of this case in light of our holding, we conclude that
    the record does not support the OAH’s finding that Mr. Casto drove a motor vehicle while
    under the influence of drugs or controlled substances or the circuit court’s subsequent order
    affirming the OAH’s ruling.12 In upholding Mr. Casto’s license revocation, the OAH
    repeatedly recognized that a determination of whether he drove under the influence
    requires “all evidence is to be examined in toto.” The OAH then discounted the results of
    Mr. Casto’s secondary chemical test13 because it construed the secondary chemical test
    statute as applying predominantly to tests designed to detect alcohol and not to those
    identifying evidence of drug use. See W. Va. Code § 17C-5-8. While this statute provides
    specific percentages for the consideration of alcohol evidence, it also lists the various drugs
    and controlled substances for which a chemical analysis of the blood should test. See
    12
    The parties do not contend, and we need not consider, whether Mr. Casto
    drove while under the influence of alcohol because the DMV’s order of revocation is
    specifically for “driving . . . while under the influence of controlled substances or drugs,”
    not alcohol.
    13
    The secondary chemical test in this case was the blood test that was
    requested by both Patrolman Montagu and Mr. Casto. The West Virginia State Police tested
    Mr. Casto’s blood sample and found it to be negative for all of the substances on its ninety-
    panel drug screen.
    12
    W. Va. Code §§ 17C-5-8(d)(1) to -(10). Therefore, the OAH should not have discounted
    Mr. Casto’s blood test results solely based on this statute.
    The OAH also determined Mr. Casto was not a credible witness and
    discounted his testimony at the administrative hearing. Mr. Casto denied driving under the
    influence when he informed Patrolman Montagu that he had not used drugs or controlled
    substances during the patrolman’s investigation, and Mr. Casto reiterated this denial when
    he testified during the hearing. In presenting his testimony, Mr. Casto also engaged in
    several rambling narratives that did not directly address whether he had driven under the
    influence of controlled substances or drugs. Relying on Webb v. West Virginia Board of
    Medicine, 
    212 W. Va. 149
    , 
    569 S.E.2d 225
     (2002) (per curiam), the circuit court correctly
    noted that “[t]he Hearing Examiner’s credibility determinations are entitled to deference
    by this Court.”14
    Despite the OAH’s refusal to consider Mr. Casto’s negative blood test results
    and its credibility determinations, these rulings do not lead to the conclusion that the DMV
    carried its burden to prove that Mr. Casto drove while under the influence of drugs. Rather,
    when examining the totality of the evidence, or lack of evidence in this case, we find that
    14
    See Webb v. W. Va. Bd. of Med., 
    212 W. Va. 149
    , 156, 
    569 S.E.2d 225
    ,
    232 (2002) (per curiam) (“This Court has recognized that credibility determinations by the
    finder of fact in an administrative proceeding are binding unless patently without basis in
    the record.” (quotations and citation omitted)).
    13
    both the OAH and the circuit court erred in finding that Mr. Casto drove under the
    influence. The OAH cited Syllabus point 2 of Albrecht v. State in support of its decision to
    uphold Mr. Casto’s license revocation:
    Where there is evidence reflecting that a driver was
    operating a motor vehicle upon a public street or highway,
    exhibited symptoms of intoxication, and had consumed
    alcoholic beverages, this is sufficient proof under a
    preponderance of the evidence standard to warrant the
    administrative revocation of his driver’s license for driving
    under the influence of alcohol.
    
    173 W. Va. 268
    , 
    314 S.E.2d 859
     (1984) (emphasis added). The circuit court also quoted
    this holding and additionally relied on Syllabus point 3 of White v. Miller, 
    228 W. Va. 797
    ,
    
    724 S.E.2d 768
     (2012), to affirm the OAH’s order upholding Mr. Casto’s license
    revocation:
    A driver’s license to operate a motor vehicle in this State
    cannot be administratively revoked solely and exclusively on
    the results of the driver’s horizontal gaze nystagmus test.
    Rather, additional evidence in conjunction with the horizontal
    gaze nystagmus test is required for revocation: for example, the
    results of other field sobriety tests; the results of a secondary
    chemical test; whether the vehicle was weaving on the
    highway; whether the driver admitted consuming an alcoholic
    beverage; whether the driver exhibited glassy eyes or slurred
    speech; and/or whether the odor of an alcoholic beverage was
    detected.
    (Emphasis added). Both of these authorities require a finding that a driver actually used or
    ingested a substance that would impair his ability to operate a motor vehicle, either from
    actual consumption, as noted in Albrecht, or from an admission of consumption or an odor,
    as referenced in White. In other words, the evidence to support a license revocation for
    driving under the influence of drugs or controlled substances must show both ingestion of
    14
    the referenced substances and that the driver was impaired as a result of such use. See
    generally W. Va. Code § 17C-5-2(a)(1) (defining “impaired state”). Here, though, the
    evidence does not establish that Mr. Casto used or consumed controlled substances or
    drugs.
    Unlike the majority of cases considered by this Court in which the DMV has
    revoked a driver’s license for driving under the influence of drugs or controlled substances,
    the DMV has provided no evidence that Mr. Casto ingested or used these substances. Mr.
    Casto did not admit to having used drugs or controlled substances;15 Patrolman Montagu
    did not detect an odor indicating drug use when he investigated Mr. Casto;16 and Patrolman
    15
    See, e.g., Frazier v. Null, 
    246 W. Va. 450
    , 452, 
    874 S.E.2d 252
    , 254 (2022)
    (driver “admitted to smoking a bowl of marijuana” (emphasis added)); Frazier v. Howie,
    No. 20-0364, 
    2022 WL 4355565
    , at *1 (W. Va. Sept. 20, 2022) (memorandum decision)
    (driver “admitted to ingesting ‘several pills earlier in the day’” (emphasis added)); Frazier
    v. Simpkins, No. 20-0313, 
    2022 WL 4355562
    , at *1 (W. Va. Sept. 20, 2022) (memorandum
    decision) (driver “admitted to having ‘earlier’ smoked marijuana” (emphasis added));
    Frazier v. Raschella, No. 20-0103, 
    2022 WL 4355558
    , at *1 (W. Va. Sept. 20, 2022)
    (memorandum decision) (driver “admitted that he had ingested controlled substances that
    were prescribed to him” (emphasis added)); Frazier v. Rhodenizer, No. 20-0896, 
    2022 WL 2066479
    , at *1 n.2 (W. Va. June 8, 2022) (memorandum decision) (driver “admitted to
    taking her prescription medication prior to the stop” (emphasis added)); Dale v. Oakland,
    
    234 W. Va. 106
    , 108, 
    763 S.E.2d 434
    , 436 (2014) (per curiam) (driver “admitted to [the
    officer] that he had ‘a joint’ and that he smoked marijuana in the car while driving around
    Moundsville” (emphasis added)).
    16
    See, e.g., Simpkins, 
    2022 WL 4355562
    , at *1 (officer “testified that he
    detected the odor of marijuana when he approached the automobile during the traffic stop”
    (emphasis added)); Oakland, 
    234 W. Va. at 108
    , 
    763 S.E.2d at 436
     (officer “detected a
    strong odor of marijuana emanating from within [the driver’s] vehicle as soon as he got
    behind the vehicle even before he activated the emergency lights” (emphasis added)).
    15
    Montagu did not report finding any evidence of drugs,17 controlled substances,18 or
    associated paraphernalia19 on Mr. Casto or in his vehicle at the time of his investigation.
    But see Frazier v. Yoder, Nos. 21-0568 & 22-0112, 
    2023 WL 3750616
     (W. Va. June 1,
    2023) (memorandum decision) (DMV revoked driver’s license for driving under the
    influence of prescription drugs but no evidence of prescription drugs found).
    A finding of driving under the influence of drugs or controlled substances
    necessarily requires a driver to be impaired as a result of his use or consumption of drugs
    or controlled substances. The record in this case does not support a finding that Mr. Casto
    17
    See, e.g., Frazier v. Shaffer, No. 20-0314, 
    2021 WL 653242
    , at *1 (W. Va.
    Feb. 19, 2021) (memorandum decision) (officer “noted that [the driver] had a white
    powdery substance on and around her nose” (emphasis added)); Oakland, 
    234 W. Va. at 108
    , 
    763 S.E.2d at 436
     (“After searching [the driver’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.” (emphasis added)).
    18
    See, e.g., Howie, 
    2022 WL 4355565
    , at *1 (“the trooper observed
    unlabeled medication bottles in [the driver’s] automobile” (emphasis added)); Raschella,
    
    2022 WL 4355558
    , at *1 (officer “recovered the controlled substances at the scene, but
    without accompanying evidence that they were dispensed through prescription” (emphasis
    added)); Shaffer, 
    2021 WL 653242
    , at *1 (driver “further advised [the officer] that she took
    Lortab, Zanaflex and Tramadol that evening” (emphasis added)); Reed v. Divita, No. 14-
    11018, 
    2015 WL 5514209
    , at *1 (W. Va. Sept. 18, 2015) (memorandum decision)
    (“According to the testimony of [the officer], during the stop, as [the driver] pulled her
    driver’s license from her purse, [the officer] saw in plain view a plastic baggie in her purse
    containing pills. . . . [The officer] asked [the driver] to place her purse on the trunk of the
    car, and then proceeded to search it. [The officer] discovered 13 alprazolam pills and 15
    oxycodone pills in [the driver’s] purse.” (emphasis added)), abrogated on other grounds
    by Frazier v. Talbert, 
    245 W. Va. 293
    , 
    858 S.E.2d 918
     (2021).
    19
    See, e.g., Null, 246 W. Va. at 452, 874 S.E.2d at 254 (“A marijuana bowl
    with residue was found in the car[.]” (emphasis added)).
    16
    took or ingested drugs or controlled substances because the DMV offered no evidence that
    he used, consumed, ingested, or took controlled substances or drugs. As such, the DMV
    failed to carry its burden to prove, by a preponderance of the evidence, that Mr. Casto drove
    under the influence of drugs or controlled substances. Consequently, his license revocation
    must be reversed. See generally Frazier v. Gaither, No. 21-0726, 
    2023 WL 3992034
    , ___
    W. Va. ___, ___ S.E.2d ___ (W. Va. June 14, 2023) (recognizing DMV’s preponderance
    of the evidence burden of proof in license revocation cases). The OAH’s finding that the
    evidence supported the revocation of Mr. Casto’s driver’s license for driving under the
    influence of drugs or controlled substances is not substantiated by the record evidence, and
    the circuit court erred by affirming the OAH’s determination that Mr. Casto’s license
    revocation was proper. See Syl. pt. 1, Francis O. Day Co., Inc. v. Dir., Div. of Env’t Prot.,
    
    191 W. Va. 134
    , 
    443 S.E.2d 602
     (1994) (“Evidentiary findings made at an administrative
    hearing should not be reversed unless they are clearly wrong.” (emphasis added)).
    Therefore, we reverse the circuit court’s order upholding Mr. Casto’s license revocation
    and remand for entry of an order rescinding Mr. Casto’s revocation and reinstating his
    driver’s license.
    IV.
    CONCLUSION
    We find that the DMV has not established by a preponderance of the
    evidence that Mr. Casto was driving a motor vehicle while under the influence of controlled
    substances or drugs. Therefore, the April 9, 2021 order of the Circuit Court of Kanawha
    17
    County affirming the administrative order that upheld the revocation of Mr. Casto’s
    driver’s license is reversed, and this case is remanded for entry of an order rescinding the
    revocation and reinstating Mr. Casto’s driver’s license.
    Reversed and Remanded.
    18