Everett Frazier, Commissioner, West Virginia Division of Motor Vehicles v. Cheryl L. Yoder and Everett Frazier, Commissioner, West Virginia Division of Motor Vehicles v. Cheryl L. Yoder ( 2023 )


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  •                                 STATE OF WEST VIRGINIA
    SUPREME COURT OF APPEALS
    FILED
    June 1, 2023
    released at 3:00 p.m.
    EDYTHE NASH GAISER, CLERK
    Everett Frazier, Commissioner,                                                       SUPREME COURT OF APPEALS
    West Virginia Division of Motor Vehicles,                                                 OF WEST VIRGINIA
    Respondent Below, Petitioner
    vs.) No. 21-0568 (Berkeley County 19-P-353)
    Cheryl L. Yoder,
    Petitioner Below, Respondent
    and
    Everett Frazier, Commissioner,
    West Virginia Division of Motor Vehicles,
    Respondent Below, Petitioner
    vs.) No. 22-0112 (Berkeley County 21-AA-5)
    Cheryl L. Yoder,
    Petitioner Below, Respondent
    MEMORANDUM DECISION
    In this consolidated appeal, Petitioner Everett Frazier, Commissioner of the West Virginia
    Division of Motor Vehicles (“DMV”), appeals two separate orders of the Circuit Court of Berkeley
    County. 1 First, the DMV appeals the circuit court’s June 20, 2021 order directing it to pay
    undetermined costs and remanding the matter to the Office of Administrative Hearings (“OAH”) 2
    for an additional evidentiary hearing regarding the results of an eleven-panel drug screen. Second,
    it appeals the circuit court’s January 26, 2022 order concluding that Respondent Cheryl Yoder
    requested a blood test that she did not receive and reversing the OAH’s final order that had revoked
    Ms. Yoder’s personal and commercial driver’s licenses. For the reasons below, the June 20, 2021
    1
    Petitioner appears by counsel Attorney General Patrick Morrisey and Assistant Attorney
    General Elaine L. Skorich. Respondent appears by counsel B. Craig Manford.
    2
    The OAH ceased to exist on July 1, 2021. See Frazier v. Null, 
    246 W. Va. 450
    , 452 n.1,
    
    874 S.E.2d 252
    , 254, n.1 (2022).
    1
    order of the circuit court is affirmed, in part, and vacated, in part. The January 26, 2022 order of
    the circuit court is affirmed. 3
    I.     Factual and Procedural History
    On July 3, 2017, Martinsburg City Police Officer C.R. Williamson followed Ms. Yoder’s
    vehicle after observing it traveling well below the posted speed limit and weaving. Officer
    Williamson continued to monitor the vehicle as it made a wide, slow turn, suddenly pulled off the
    road into a parking spot, and then immediately pulled back onto the road behind him after he drove
    past. Because of these observations, Officer Williamson pulled into another parking spot and
    waited for Ms. Yoder’s vehicle. He saw the vehicle come within inches of his front bumper. Ms.
    Yoder attempted to park but had difficulty, ending up crossways in the middle of the road. After
    failing to park properly, Ms. Yoder drove away. Officer Williamson then initiated a traffic stop.
    According to the DUI Information Sheet and Officer Williamson’s written statement, Ms.
    Yoder “immediately stumbled out of the vehicle and started walking back to [his] patrol car.” He
    directed her several times to return to her vehicle. Once she complied, Officer Williamson tried to
    obtain her information. He noticed that Ms. Yoder’s “speech was slightly slurred[,] and her eyes
    were red.” Officer Williamson indicated that he “continued to speak with Ms. Yoder until [he] was
    sure she was under the influence of prescription drugs.” He administered three standardized field
    sobriety tests, which Ms. Yoder failed, 4 but he did not give the additional tests designed to detect
    impairment from drugs and controlled substances. Officer Williamson arrested Ms. Yoder for
    driving under the influence of prescription drugs and transported her to the police station. There,
    he observed Ms. Yoder for twenty minutes and then administered the secondary chemical test
    where she blew a .000 on the Intoximeter. Ms. Yoder was not given a blood test at the time of her
    arrest.
    Following her arrest, the DMV sent Ms. Yoder two orders dated July 28, 2017, revoking
    her personal driver’s license, and disqualifying her from holding a valid commercial driver’s
    license (“CDL”). 5 She requested a hearing on the revocation and disqualification. In October 2018,
    the OAH conducted a hearing. The DMV subpoenaed both Officer Williamson and the processing
    officer to appear at the hearing, but neither attended. 6 The DMV did not call any other witness, but
    the agency’s documents were admitted into evidence. The DUI Information Sheet completed by
    Officer Williamson indicated the following: (1) Ms. Yoder was operating a vehicle under the
    3
    This consolidated case meets the “limited circumstances” requirement of Rule 21(d) of
    the West Virginia Rules of Appellate Procedure and is appropriate for disposition by memorandum
    decision.
    4
    Officer Williamson administered the horizontal gaze nystagmus, one-leg stand, and
    walk-and-turn tests.
    5
    Ms. Yoder is a CDL license holder and drives trucks as part of her employment.
    6
    The DMV moved to continue the hearing because of the failure of both officers to appear;
    however, Ms. Yoder objected. The OAH denied the motion.
    2
    influence of an “impairing substance”; (2) the vehicle weaved, almost struck an object or vehicle,
    turned with wide radius, varied in speed, stopped in lane for no reason, and committed an
    illegal/improper turn; (3) Ms. Yoder was observed as having slurred speech, disorientation, dry
    mouth, confusion, raspy voice, and bloodshot/watery eyes; (4) Ms. Yoder appeared normal when
    exiting the vehicle, walking to roadside, and standing; and (5) Ms. Yoder did not make any
    admissions or statements. Officer Williamson did not complete the Miranda Warning or Interview
    sections. The Blood Test section of the DUI Information Sheet showed that Ms. Yoder did not
    have a blood test. Officer Williamson left the remaining portion of this section, including whether
    Ms. Yoder requested a blood sample, blank. 7 The OAH also admitted Officer Williamson’s written
    statement regarding the incident into evidence. This written statement was silent as to any request,
    either by Officer Williamson or Ms. Yoder, for a blood test. The DMV then rested.
    Ms. Yoder testified on her own behalf at the hearing. Ms. Yoder stated that prior to the
    arrest, she had not taken any impairing substance, including alcohol or prescription medication,
    and explained that she possibly had slurred speech from recent dental work and that she has a lisp.
    Ms. Yoder stated that her erratic driving was due to her observation of the poor state of the streets,
    and she failed the sobriety tests because she was laughing at how long the tests were taking and
    because of medical issues. Twice during her testimony, Ms. Yoder claimed that she asked the
    investigating officer to take her to obtain a blood test, but he would not. She testified that upon her
    release, she obtained drug testing on her own through urinalysis at a local urgent care center. Ms.
    Yoder presented three negative eleven-panel urine screens into evidence before the OAH. 8 The
    OAH admitted the three urine screen results, the secondary chemical test results, the DUI
    Information Sheet, and Officer Williamson’s written statement.
    After weighing the evidence, the OAH entered a final order on September 6, 2019,
    affirming Ms. Yoder’s license revocation and disqualification. The OAH found that Ms. Yoder
    was lawfully arrested and that there was “evidence of the use of alcohol, drugs, controlled
    substances[,] or any combination of the aforementioned based on . . . [Ms. Yoder’s] driving
    pattern, her physical appearance[,] and her performance on the standard field sobriety tests.” The
    OAH further noted that Ms. Yoder’s results on the secondary chemical test administered showed
    that her blood alcohol concentration level was zero. While the OAH admitted the urine screen
    results, it concluded that
    7
    Specifically, the DUI Information Sheet set forth the following questions: (1) was request
    for a blood sample directed by the arresting officer; (2) was a search warrant obtained; (3) did
    suspect request blood sample; and (4) was blood sample taken for medical treatment. Each of these
    questions had a yes and a no box for the arresting officer to check. Officer Williamson failed to
    check any of the boxes for these questions.
    8
    On July 3, 2017, upon Ms. Yoder’s release from jail, she obtained a negative drug screen.
    Ms. Yoder later obtained two additional negative drug screens on July 14, 2017, and August 23,
    2017. Neither the OAH nor DMV counsel asked any questions of Ms. Yoder or her counsel to
    clarify what substances were analyzed by the urine screens Ms. Yoder obtained.
    3
    no evidence was presented to explain the results to include what substances the tests
    were designed to discover and what substances the tests would not discover. The
    results indicate “normal,” but no information was presented as to what that means.
    As such, the relevance of those documents [is] minimal, only indicating that either
    [Ms. Yoder] believed she was not under the influence or that [Ms. Yoder] knew the
    tests would not reveal the substances that she had taken.
    The OAH also acknowledged that Ms. Yoder testified she asked Officer Williamson to take her to
    get a blood test, but that he did not comply with her request. However, the OAH found that
    [n]o other evidence was presented that clearly supports this claim. She did go to
    Valley Health and get a [urine] test that day,[9] but this decision could have been
    made after her interactions with the [i]nvestigating [o]fficer when she had a chance
    to talk to others. No clear evidence was presented that she requested the assistance
    of the [i]nvestigating [o]fficer in obtaining a blood test; in any case, she was able
    to obtain a [urine] test that day—even though she did not present evidence
    explaining the results of the [urine] test.
    (Footnote added). Finding Officer Williamson’s written statement and the DUI Information Sheet
    to be more credible than Ms. Yoder’s testimony, the OAH determined that there was sufficient
    evidence to prove by a preponderance of the evidence that Ms. Yoder “drove a motor vehicle in
    this State while under the influence of alcohol, drugs, a controlled substance, or any combination
    of the aforementioned on July 3, 2018.” The OAH affirmed the DMV’s order revoking Ms.
    Yoder’s personal driving license and the companion order disqualifying her from holding a valid
    commercial license. Ms. Yoder appealed to the circuit court. 10
    Upon appeal, the circuit court reversed the OAH’s final order, in part, based upon the
    OAH’s reliance on the DMV’s file when the investigating and processing officers did not testify
    at the hearing. See Frazier v. Yoder, No. 20-0336, 
    2021 WL 653244
    , at *1 (W. Va. Feb. 19, 2021)
    (memorandum decision). The DMV then appealed to this Court challenging the circuit court’s
    order as to several issues. See generally 
    id.
     We reversed and remanded the matter to the circuit
    court, finding that the ruling regarding the OAH’s reliance on the DMV’s file ran afoul of our
    conclusion in Frazier v. Fouch, 
    244 W. Va. 347
    , 
    853 S.E.2d 587
     (2020), and that the circuit court
    9
    The order indicates that Ms. Yoder received a blood test rather than a urine test. However,
    there is no evidence in the record indicating that she received a blood test. There appears to be no
    dispute that Ms. Yoder did not receive a blood test, and the OAH’s reference to a blood test, rather
    than a urine test, was an error.
    10
    The record on appeal reflects, and the DMV does not dispute, that the city attorney
    dismissed all criminal charges against Ms. Yoder with the consent of Officer Williamson prior to
    the OAH’s revocation and disqualification of Ms. Yoder’s licenses.
    4
    erred by ruling that the DMV was required to secure an officer’s attendance at the OAH hearing.11
    Yoder, No. 20-0336, 
    2021 WL 6532449
    , at *3.
    On remand, the circuit court entered a new order on June 20, 2021. The circuit court noted
    that upon review of an agency’s administrative order pursuant to West Virginia Code § 29A-5-4,
    it had the authority to affirm, reverse, vacate, or modify the OAH order. It also concluded that it
    could remand the case for further proceedings. The June 20, 2021 order included the following
    relevant findings and conclusions:
    36. The [c]ourt finds that [Officer] Williams did have reasonable articulable
    suspicion or probable cause to effect a traffic stop of [Ms. Yoder] from his
    descriptions of her driving and her own admissions regarding the same.
    ....
    39. . . . Because the [c]ourt reaches the conclusion that this matter must be
    remanded for a new evidentiary hearing on another basis, to properly consider the
    significance of the July 3, 2017 negative [eleven-]panel urine drug screen, the
    [c]ourt makes no ruling on the issue of whether the determination of the Hearing
    Examiner that [Ms. Yoder] failed to prove that she requested a blood draw of the
    arresting officer should be revisited.
    40. The [c]ourt finds that the [h]earing [e]xaminer’s decision to afford the admitted
    drug screen evidence . . . no or only minimal weight to be clearly wrong in view of
    the reliable, probative and substantial evidence on the whole record. The [c]ourt
    finds said decision to also be arbitrary and capricious and an unwarranted exercise
    of discretion.
    ....
    50. In light, however of our Supreme Court of Appeal[s’] admonitions that the
    reviewing [c]ourt in an A[dministrative] P[rocedures] A[ct] case[] appealing
    driver’s license revocations should not reweigh the evidence, reassess the
    credibility of witnesses, substitute its judgment for that of the [h]earing
    [e]xaminer . . . or indicate a preference for live testimony over documentary
    evidence, . . . the [c]ourt believes that this matter should be remanded to the OAH
    for a new evidentiary hearing to permit the record to be developed as to what
    substances the Valley Health Urgent Care [Eleven-]Panel Non-[DOT] Drug Screen
    tested for, what a negative screen would thus mean in the context of this case and
    in light of all the other evidence, and to provide the [DMV] the opportunity to meet
    that evidence.
    11
    Because this Court determined that the circuit court’s ruling ran afoul of Fouch and
    required remand, we declined to address any other issue raised, including the sufficiency of the
    evidence. See Frazier v. Yoder, No. 20-0336, 
    2021 WL 653244
    , at *3 (W. Va. Feb. 19, 2021)
    (memorandum decision).
    5
    The court further ordered in its June 20, 2021 order “that the [DMV] shall be taxed with the costs
    of these proceedings.” The DMV appealed.
    Meanwhile, the OAH immediately conducted a second evidentiary hearing on June 28,
    2021, on the limited issue of the eleven-panel drug screen. At the second hearing, Ms. Yoder
    presented two witnesses. First, Kristina Malloy who was employed by Valley Health Urgent Care
    in July 2017, testified that she had administered the eleven-panel non-DOT rapid drug screen to
    Ms. Yoder and described the normal procedure of administering that test. Next, Kelly Peters, a
    registered nurse, nurse practitioner, and a certified forensic nurse examiner, testified an
    eleven-panel drug screen typically tests for: marijuana, cocaine, basic opioids, amphetamine, PCP,
    benzodiazepines, barbiturates, methadone, propoxyphene, methaqualone, and oxycontin. Ms.
    Peters stated that, in her opinion, if any of those drugs had been consumed within seventy-two to
    forty-eight hours prior to the test, the results could have been positive. Per her testimony, there are
    other drugs that could cause impairment that would not show up in an eleven-panel drug screen,
    but these eleven are the most common drugs abused.
    Upon conclusion of this hearing, the OAH issued an order 12 affirming the original July 28,
    2017 orders of revocation and disqualification, finding as follows:
    [c]onsidering that the evidence presented in the second hearing indicated that the
    [eleven-]panel drug screen test does not test for all drugs, and considering the
    evidence presented at the first hearing that indicated that [Ms. Yoder] displayed so
    many clues indicating impairment, the evidence indicates that, more likely than not,
    [Ms. Yoder] was driving while under the influence of a controlled substances [sic]
    or drugs that the [eleven-]panel drug screen test does not test for.
    Ms. Yoder then filed her second petition for judicial review with the circuit court on July 20, 2021.
    On January 26, 2022, the circuit court again found for Ms. Yoder, reversing the June 29,
    2021 OAH order. 13 Specifically, the circuit court found that “there is persuasive evidence that [Ms.
    Yoder] did in fact request the arresting officer to take her for a blood draw either during or at the
    conclusion of the traffic stop[,]” and that this testimony “was not rebutted by the documentary
    evidence of the record.” The circuit court found this error alone to be reversible error. The DMV
    appealed and this Court consolidated with its appeal of the June 20, 2021 order referenced above.
    II.     Standard of Review
    We have held that
    12
    The OAH entered this order on June 29, 2021, prior to its dissolution on July 1, 2021.
    13
    The circuit court also took issue with the OAH’s decision to render a final decision on
    the merits as opposed to simply supplying it with the requested testimony and evidence regarding
    the eleven-panel drug screen.
    6
    [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[(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.
    Syl. pt. 1, Muscatell v. Cline, 
    196 W. Va. 588
    , 
    474 S.E.2d 518
     (1996). We have further held that
    “[i]n cases [such as this one,] where the circuit court has [reversed] the result before the
    administrative agency, this Court reviews the final order of the circuit court and the ultimate
    disposition by it of an administrative law case under an abuse of discretion standard and reviews
    questions of law de novo.” Syl. pt. 2, Muscatell, 
    196 W. Va. 588
    , 
    474 S.E.2d 518
    .
    III.   Discussion
    In Appeal No. 21-0568, the DMV asserts that the circuit court erred in (1) assessing the
    DMV with costs and (2) finding that the evidence in this matter was insufficient to uphold the
    revocation of Ms. Yoder’s license, having successfully rebutted the DMV’s evidence. In Appeal
    No. 22-0112, the DMV argues that the circuit court erred in finding that Ms. Yoder requested a
    blood test and in reversing the OAH’s final order on this basis. We address these assignments of
    error in turn.
    A.      Appeal No. 21-0568
    In its first assignment of error, the DMV contends that the circuit court erred in assessing
    general costs “of these proceedings” to the DMV. Ms. Yoder concedes that the circuit court erred
    in assessing costs against the DMV. Generally, “[t]his Court is not obligated to accept the
    [respondent’s] confession of error . . . . We will do so when, after a proper analysis, we believe
    error occurred.” Syl. pt. 8, State v. Julius, in part, 
    185 W. Va. 422
    , 
    408 S.E.2d 1
     (1991). See also
    In re M.L., No. 14-0501, 
    2015 WL 249192
    , at *1 n.1 (W. Va. Jan. 12, 2015) (memorandum
    decision) (same); Syl. pt. 4, Petition of Hull, 
    159 W. Va. 363
    , 
    222 S.E.2d 813
     (1976) (“In a case
    where the appellee confesses error and indicates that the judgment should be reversed, this Court,
    upon ascertaining that the errors confessed are supported by law and constitute cause for the
    reversal of the judgment and the entry of judgment, will reverse the judgment and enter judgment
    in this Court.”). In other words, “confessions of error do not automatically entitle a party to a
    reversal[;] reversal is required when it can be ascertained that the errors confessed are supported
    by law.” State v. Berrill, 
    196 W. Va. 578
    , 587, 
    474 S.E.2d 508
    , 517 (1996) (internal quotations
    and citations omitted).
    We have held that “[u]nless expressly provided by statute, costs will not be assessed against
    the State in a suit to which the State is a party[.]” Syl. pt. 12, in part, State v. Blevins, 
    131 W. Va. 350
    , 
    48 S.E.2d 174
     (1948). See also Syl. pt. 2, Sally-Mike Properties v. Yokum, 
    179 W. Va. 48
    ,
    
    365 S.E.2d 246
     (1986) (“As a general rule each litigant bears his or her own attorney’s fees absent
    a contrary rule of court or express statutory or contractual authority for reimbursement.”); Nelson
    v. W. Va. Pub. Empl. Ins. Bd., 
    171 W. Va. 445
    , 450, 
    300 S.E.2d 86
    , 91 (1982) (“As a general rule
    awards of costs and attorney fees are not recoverable in the absence of a provision for their
    allowance in a statute or court rule.” (citations omitted)); Syl. pt. 2, Gardner v. Bailey, 
    128 W. Va.
                    7
    331, 
    36 S.E.2d 215
     (1945) (“An award of costs against the State will only be made where there is
    express statutory authority therefor.”). Here, the DMV appealed the OAH’s final order to the
    circuit court pursuant to the West Virginia State Administrative Procedures Act (“APA”), West
    Virginia Code §§ 29A-1-1, et seq. The APA does not contain any provision for assessing costs
    against the DMV under these circumstances in this type of proceeding. Furthermore, the circuit
    court acted sua sponte in assessing these unexplained and vague costs. Nothing in the circuit
    court’s order or in the record on appeal demonstrates what costs were assessed to the DMV or the
    basis for such assessment. The circuit court’s order is devoid of any discussion of or citation to
    any statute or court rule it relied upon, nor is there any apparent conduct that could arguably
    warrant assessing costs. Consequently, the circuit court erred in assessing costs against the DMV,
    and we vacate the portion of the circuit court’s June 20, 2021 order that required the DMV to pay
    such costs.
    Next, the DMV asserts that the circuit court erred in finding that the evidence in this matter
    was insufficient to uphold Ms. Yoder’s license revocation and disqualification and that Ms. Yoder
    rebutted the DMV’s evidence. Essentially, the DMV argues that in the June 20, 2021 order, the
    circuit court erred because it made several improper credibility determinations. While the circuit
    court made several findings that the OAH clearly erred, it ultimately concluded it could not make
    credibility determinations and instead remanded the matter back to the OAH for further
    consideration of the eleven-panel drug screen testimony. Additionally, and more importantly, as
    discussed below, the OAH clearly erred as to its finding that Ms. Yoder did not request a blood
    test. 14 Therefore, we affirm the remainder of the circuit court’s June 20, 2021 order remanding the
    case to the OAH for further evidentiary proceedings.
    B.        Appeal No. 22-0112
    The sole assignment of error in the DMV’s appeal of the circuit court’s second order is that
    the circuit court erred in finding that Ms. Yoder requested a blood test and in reversing the OAH’s
    final order finding to the contrary. The DMV argues that the circuit court erroneously substituted
    its own judgment and credibility determinations over that of the OAH in finding that Ms. Yoder
    requested a blood test. Ms. Yoder contends that the circuit court did not err because she testified
    on at least two occasions during the hearing before the OAH that she requested a blood test and
    that the DMV did not present any evidence to rebut that position. We agree with Ms. Yoder.
    We have consistently held that “findings of fact by the administrative officer are accorded
    deference unless the reviewing court believes the findings to be clearly wrong.” Syl. pt. 1, in part,
    Muscatell, 
    196 W. Va. 588
    , 
    474 S.E.2d 518
    . “We must uphold any of the [Administrative Law
    Judge’s] factual findings that are supported by substantial evidence, and we owe substantial
    deference to inferences drawn from these facts. Further, the [Administrative Law Judge’s]
    credibility determinations are binding unless patently without basis in the record.” Martin v.
    Randolph Cnty. Bd. of Educ., 
    195 W. Va. 297
    , 304, 
    465 S.E.2d 399
    , 406 (1995) (emphasis added).
    This Court must determine whether the OAH clearly erred in finding that Ms. Yoder did not
    request a blood test.
    14
    As discussed below, the OAH’s erroneous determination that Ms. Yoder did not request
    a blood test is dispositive under the limited facts of this matter.
    8
    Applying these standards to the present case, we agree that the OAH clearly erred. In the
    proceedings before the OAH, Ms. Yoder testified that she requested a blood test during the arrest
    and that Officer Williamson did not take Ms. Yoder to obtain one. She also stated that because no
    blood test was given, as soon as she was released from jail, she obtained an eleven-panel urinalysis
    drug test from a local urgent care center. Officer Williamson did not testify during the proceeding
    below; however, the DMV submitted into evidence the DUI Information Sheet, which provides
    the investigating officer the opportunity to properly document whether a blood test was completed,
    whether it was requested, the time it was requested, who requested it, and whether one was refused
    by the driver. The DUI Information Sheet explicitly indicated that no blood test was given. In
    addition, there were two boxes, a yes and a no, to indicate whether Ms. Yoder requested the test.
    Neither of these boxes was checked. Thus, under the facts and evidence presented, there was no
    basis in the record for the OAH to conclude that Ms. Yoder did not request a blood test. The OAH’s
    finding that Ms. Yoder did not request a blood test is clearly wrong in view of the reliable,
    probative, and substantial evidence on the whole record.
    Even though we find that the OAH clearly erred, our analysis does not end here. Under
    West Virginia Code § 17C-5-9
    [a]ny person lawfully arrested for driving a motor vehicle in this state while
    under the influence of alcohol, controlled substances or drugs shall have the right
    to demand that a sample or specimen of his or her blood or breath to determine the
    alcohol concentration of his or her blood be taken within two hours from and after
    the time of arrest and a sample or specimen of his or her blood or breath to
    determine the controlled substance or drug content of his or her blood, be taken
    within four hours from and after the time of arrest, and that a chemical test thereof
    be made. The analysis disclosed by such chemical test shall be made available to
    such arrested person forthwith upon demand.
    Recently, in Frazier v. Talbert, this Court set forth three factors the fact-finder must consider when
    determining the consequences of when a driver requests a blood test, but it is not given. 
    245 W. Va. 293
    , 
    858 S.E.2d 918
     (2021). Specifically, we held that
    [i]n a proceeding involving the revocation of a driver’s license for driving
    under the influence of alcohol, controlled substances, or drugs where a driver
    demands a blood test pursuant to West Virginia Code § 17C-5-9 [2013], but the
    test is never given, a chemical analysis of the blood that is withdrawn is never
    completed, or the blood test results are lost, the trier of fact must consider (1) the
    degree of negligence or bad faith involved in the violation of the statute; (2) the
    importance of the blood test evidence considering the probative value and reliability
    of secondary or substitute evidence that remains available; and (3) the sufficiency
    of the other evidence produced at the proceeding to sustain the revocation. The trier
    of fact must consider these factors in determining what consequences should flow
    from the absence of the blood test evidence under the particular facts of the case.
    Syl. pt. 6, id. (emphasis added).
    9
    Here, while we agree with the circuit court that the OAH’s finding that Ms. Yoder did
    not request a blood test is clearly wrong in view of the reliable, probative, and substantial evidence
    on the whole record, the OAH is now dissolved and cannot undertake the required Talbert analysis
    to determine what the consequence is from the lack of the blood test results. 15 See Frazier v. Null,
    
    246 W. Va. 450
    , 452 n.1, 
    874 S.E.2d 252
    , 254 n.1 (2022) (noting that as of July 1, 2021, the OAH
    no longer exists). The Legislature has previously approved the dismissal of unresolved
    administrative DUI revocations that were pending at the time of the OAH’s dissolution. See W. Va.
    Code § 17C-5C-1a(c)(1) (“If any appeal of a revocation or suspension order, described in
    § 17C-5C-3(3) of this code, is pending before the office on or after July 1, 2021, the underlying
    revocation or suspension order shall be dismissed.”). 16 There is no fact-finder to whom this matter
    can be remanded to determine the consequences of the failure to obtain a blood test. Consequently,
    the circuit court’s reinstatement of Ms. Yoder’s driving licenses is final.
    15
    Recently, this Court has conducted the Talbert analysis. See, e.g., Frazier v. Howie, No.
    20-0364, 
    2022 WL 4355565
    , at *2 (W. Va. Sept. 20, 2022) (memorandum decision) (“[I]n this
    case, where Mr. Howie admitted to having ingested controlled substances, where the officer
    observed Mr. Howie driving in the wrong direction, and where the officer further noted other
    physical indicators of intoxication, we find that the Talbert considerations weigh in favor of the
    commissioner’s revocation order); Frazier v. Raschella, No. 20-0103, 
    2022 WL 4355558
    , at *2
    (W. Va. Sept. 20, 2022) (memorandum decision) (“The evidence presented to the OAH
    overwhelmingly established Mr. Raschella’s intoxication.”). However, in those instances the
    evidence of DUI was otherwise overwhelming. But see Frazier v. Simpkins, No. 20-0313, 
    2022 WL 4355562
    , at *2 (W. Va. Sept. 20, 2022) (memorandum decision) (“Under the unique
    circumstances before us, where the OAH findings indicate a teetering balance of evidence, the
    Talbert concerns suggest that Mr. Simpkins required the results of the blood test that he requested
    and was prejudiced by its absence.”). Overwhelming evidence is simply not present in this case.
    Other than the observations of Officer Williamson noted in the DUI Information Sheet and his
    written statement, there is no other evidence to find that Ms. Yoder was impaired from the use of
    alcohol, drugs, and/or controlled substances. Specifically, her urinalysis drug testing results
    demonstrated that she was not positive for eleven of the most commonly abused substances, she
    had a 0% alcohol breath test, she did not admit to taking any substances or drinking any alcohol,
    no drug paraphernalia was found in her vehicle, and there were no alcohol or substance odors in
    the vehicle. During oral argument, counsel for the DMV even conceded that evaluating the weight
    of the evidence presented during the OAH hearing amounted to a “coin toss.” See Albrecht v. State,
    
    173 W. Va. 268
    , 273, 
    314 S.E.2d 859
    , 864 (1984) (“A preponderance of the evidence is all that is
    required to justify administrative revocation.”). “[A] fact that can only be decided by a coin toss
    has not been proven by a preponderance of the evidence, and cannot be submitted to the jury.”
    Pineda v. Hamilton Cnty., Ohio, 
    977 F.3d 483
    , 491 (6th Cir. 2020) (quotations and citation
    omitted).
    16
    Two years following the dissolution of the OAH, the Legislature has recently repealed
    the statutory provisions establishing the OAH within the Department of Transportation and its
    hearing procedures. See 2023 W. Va. Acts, ___, eff. May 4, 2023. This repeal of the entirety of
    the OAH supports this Court’s conclusion that there is no fact-finder to which this matter may be
    remanded.
    10
    No. 21-0568, Affirmed, in part,
    Vacated, in part.
    No. 22-0112, Affirmed.
    ISSUED: June 1, 2023
    CONCURRED IN BY:
    Chief Justice Elizabeth D. Walker
    Justice John A. Hutchison
    Justice C. Haley Bunn
    CONCURRING AND WRITING SEPARATELY:
    Justice William R. Wooton
    CONCURRING, IN PART, DISSENTING, IN PART, AND WRITING SEPARATELY:
    Justice Tim Armstead
    WOOTON, J., concurring:
    I concur in the majority’s conclusion that because the Office of Administrative
    Hearings (“OAH”) no longer exists, the residual factual issues raised by the conclusion that Ms.
    Yoder requested a blood test require affirmance of the circuit court’s reinstatement of her license.
    The majority has finally acknowledged that because “the OAH is now dissolved . . . [t]here is no
    fact-finder to whom this matter can be remanded to determine the consequences of the failure to
    obtain a blood test.” I write separately, however, to express my disagreement with the majority’s
    suggestion that its failure to resolve other identical cases in this fashion was proper because in
    those cases “evidence of DUI was otherwise overwhelming.”
    I reiterate my position that the “denial of a driver's statutory right to a blood test is
    simply irremediable . . . and commands dismissal of the action against the driver.” Frazier v.
    Talbert, 
    245 W. Va. 293
    , 310, 
    858 S.E.2d 918
    , 935 (2021) (Wooton, J., dissenting). Nevertheless,
    the test adopted by the majority in Talbert is now the law of the State and requires that where a
    driver requests a blood test that is not provided, the “trier of fact” must consider factors to
    “determine[e] what consequences should flow from the absence of the blood test evidence under
    the particular facts of the case.” 
    Id.,
     syl. pt. 6, in part. This misguided point of law has largely
    been rendered meaningless, however, because it was adopted within days of the trier of fact—the
    11
    OAH—being disbanded. In lieu of grappling with the impracticality of effectuating this point of
    law, the majority has simply undertaken the analysis itself in order to sustain DUI revocations—
    in absence of any legal authority to do so. 1
    In a complete about-face, however, the majority now suddenly declares that the
    lack of a fact-finder to whom to remand this matter requires the revocation’s dismissal. Citing the
    Legislature’s “approv[al] [of] the dismissal of unresolved administrative DUI revocations that
    were pending at the time of the OAH’s dissolution[,]” the majority now apparently has little
    difficulty affirming this particular reinstatement. This of course is precisely the required outcome
    and justification I articulated—and the majority rejected—in the other license revocations which
    required remand following the OAH’s dissolution. See Null, 246 W. Va. at 462, 874 S.E.2d at 264
    (Wooton, J., dissenting) (“[T]he Legislature understood the potential for certain ‘unfinished
    business’ to simply be dismissed, including revocations which may well have been meritorious,
    but which simply outlived the administrative process in place to handle them. A case on remand
    following appeal is no more or less ‘unfinished’ than the cases the Legislature expressly authorized
    to be dismissed if pending before the OAH at the time of its dissolution.”).
    The instant case is procedurally identical to these other cases that the majority
    resolved entirely differently—each involved the refusal of a driver-requested blood test and
    therefore required the “trier of fact” to first determine the consequences of that refusal in evaluating
    evidence of DUI. While I applaud its late-arriving realization that the license revocations in these
    cases must be dismissed, the majority’s half-hearted attempt to justify its prior mishandling of
    these other cases must be disabused. This Court is simply not permitted to abdicate its proper role
    and undertake fact-finding where it believes a revocation is ultimately the correct result due to
    what it perceives as “overwhelming” evidence of DUI. Its casual suggestion to the contrary is not
    1
    See Frazier v. Null, 
    246 W. Va. 450
    , 458, 
    874 S.E.2d 252
    , 260 (2022) (Wooton, J.,
    dissenting) (“[B]ecause the OAH has been disbanded, the majority culls the record for evidence
    of DUI and adjudicates this matter itself—without statutory or other authority to do so.”); Frazier
    v. Raschella, No. 20-0103, 
    2022 WL 4355558
    , at *3 (W. Va. Sept. 20, 2022) (memorandum
    decision) (Wooton, J., dissenting) (“Because the OAH has been dissolved, a majority of this Court
    has reconstituted itself as a fact-finding body to ensure that these license revocations stand.”);
    Frazier v. Simpkins, No. 20-0313, 
    2022 WL 4355562
    , at *3 (W. Va. Sept. 20, 2022) (memorandum
    decision) (Wooton, J., concurring) (“The memorandum decision affirms petitioner's license
    reinstatement by incorrectly concluding that the OAH determined that petitioner requested the
    blood testing and performing the fact-intensive Talbert analysis itself, finding prejudice to
    petitioner from the absence of the results.”); Frazier v. Howie, No. 20-0364, 
    2022 WL 4355565
    ,
    at *3 (W. Va. Sept. 20, 2022) (memorandum decision) (Wooton, J., dissenting) (“The majority
    then itself evaluates and weighs the evidence of intoxication—which was never evaluated below
    by the finder of fact—to conclude that petitioner was DUI.”). See also Warner v. Frazier, No. 20-
    0199, 
    2022 WL 4355560
    , at *3 (W. Va. Sept. 20, 2022) (memorandum decision) (Wooton, J.,
    dissenting) (citing cases where majority “invoked the Talbert analysis under identical
    circumstances, and—albeit improperly—found the missing blood test results insignificant and
    adjudicated the issue of DUI itself. Here, it fails to dignify the missing results at all and rubber-
    stamps the circuit court's fact-finding and adjudication of the DUI revocation itself.”).
    12
    only legally unsupportable, but cold comfort to those drivers’ who were deprived similar treatment
    under those erroneous decisions.
    With that clarification, I respectfully concur.
    Armstead, Justice, concurring, in part, and dissenting, in part:
    The majority in this case has correctly determined, in Appeal No. 21-0568, that the circuit
    court erred by assessing costs against the Division of Motor Vehicles (“DMV”). The majority has
    also correctly determined, in Appeal No. 22-0112, that the Office of Administrative Hearings
    (“OAH”) erred when it found that Ms. Yoder did not request a blood test. Accordingly, I concur
    in the majority’s decision vacating the circuit court’s award of costs and affirming the circuit
    court’s finding that Ms. Yoder requested a blood test. However, the majority proceeds to find that
    the circuit court’s reinstatement of Ms. Yoder’s driver’s licenses is final because OAH is no longer
    available to serve as a factfinder to whom this matter may be remanded for purposes of our holding
    in Syllabus Point 6 of Frazier v. Talbert, 
    245 W. Va. 293
    , 
    858 S.E.2d 918
     (2021). Because I
    believe that we have authority to conduct a Talbert analysis in this case and that a properly
    conducted Talbert analysis would lead us to conclude that OAH properly affirmed the revocation
    of Ms. Yoder’s licenses, I respectfully dissent as to that portion of the majority decision that affirms
    the circuit court’s reinstatement of Ms. Yoder’s licenses.
    As the majority decision notes, West Virginia Code § 17C-5-9 (eff. 2013) provides, in
    relevant part, that a “person lawfully arrested for driving a motor vehicle in this state while under
    the influence of . . . controlled substances or drugs” has a “right to demand that . . . a sample or
    specimen of . . . her blood” be taken “to determine the controlled substance or drug content of . . .
    her blood . . . and that a chemical test thereof be made.” Though Ms. Yoder demanded a blood
    test in this case, no sample was taken and no chemical test of her blood was performed.
    It is true that, prior to our decision in Talbert, this court had held that denial of a defendant’s
    right to receive a requested blood test was a denial of statutory and due process rights that
    warranted reversing an order of revocation. See Talbert, 245 W. Va. at 300-03, 858 S.E.2d at 925–
    28 (discussing our decisions in Reed v. Hall, 
    235 W. Va. 322
    , 
    773 S.E.2d 666
     (2015) and Reed v.
    Divita, No. 14-11018, 
    2015 WL 5514209
     (W. Va. Sept. 18, 2015) (memorandum decision)).
    However, we repudiated this conclusion in Talbert, finding that it was error to reverse a revocation
    order “without considering the other evidence that respondent was driving while under the
    influence of alcohol[.]” Talbert, 245 W. Va. at 302, 858 S.E.2d at 927. Instead, we held that,
    where a driver demands a blood test pursuant to West Virginia Code § 17C-5-9
    [2013], but the test is never given . . . , the trier of fact must consider (1) the degree
    of negligence or bad faith involved in the violation of the statute; (2) the importance
    of the blood test evidence considering the probative value and reliability of
    secondary or substitute evidence that remains available; and (3) the sufficiency of
    the other evidence produced at the proceeding to sustain the revocation.
    13
    Id. at 295, 858 S.E.2d at 920, syl. pt. 6, in part. The “trier of fact” was to “consider these factors”
    to determine “what consequences should flow from the absence of the blood test evidence under
    the particular facts of the case.” Id.
    However, as Talbert anticipated, OAH has since ceased to exist. Id. at 305 n.23, 858 S.E.2d
    at 930 n.23 (noting “that the OAH ‘shall be terminated’ on July 1, 2021, W. Va. Code § 17C-5C-
    1a(d) [2020]”). Nevertheless, we adopted a new syllabus point that purports to refer consideration
    of certain “factors” to the “trier of fact.” Talbert, 245 W. Va. at 295, 858 S.E.2d at 920, syl. pt. 6,
    in part.
    As our subsequent decisions plainly recognize, and as the majority concedes, “this Court
    has conducted the Talbert analysis” in three decisions issued last term: Frazier v. Howie, No. 20-
    0364, 
    2022 WL 4355565
    , *2 (W. Va. Sept. 20, 2022) (memorandum decision) (finding that “the
    Talbert considerations weigh in favor of the [DMV] commissioner’s revocation order” and
    remanding the case for reinstatement of the revocation); Frazier v. Raschella, No. 20-0103, 
    2022 WL 4355558
    , at *2 (W. Va. Sept. 20, 2022) (memorandum decision) (explaining “our analysis
    under Talbert” and finding a “critical” absence of evidence showing “fault” or “bad faith”
    regarding the blood sample’s absence); and Frazier v. Simpkins, No. 20-0313, 
    2022 WL 4355562
    ,
    at *2 (W. Va. Sept. 20, 2022) (memorandum decision) (affirming the circuit court after
    “application of the three considerations described in Talbert”). Although I agree with the majority
    that there was strong evidence of intoxication in both Howie and Rachella, our ability to conduct
    a Talbert analysis does not hinge on the strength of such evidence. In Simpkins, we applied “the
    three considerations described in Talbert” despite “a teetering balance of evidence[.]” No. 20-
    0313, 
    2022 WL 4355562
    , at *2. Indeed, it was this “teetering balance” and our application of
    “Talbert concerns” that led us to infer that “Mr. Simpkins required the results of the blood test that
    he requested and was prejudiced by its absence.” 
    Id.
    Indeed, we should remember that we drew Syllabus Point 6 of Talbert from Syllabus Point
    2 of State v. Osakalumi, 
    194 W. Va. 758
    , 
    461 S.E.2d 504
     (1995), which purports to place the
    burden of conducting a due process analysis on the “trial court.” 1 Nevertheless, in Osakalumi we
    analyzed the Osakalumi/Talbert factors ourselves and awarded the defendant a new trial based on
    our analysis. 
    Id. at 767-68
    , 
    461 S.E.2d at 513-14
    . Although I agree that, where circumstances
    permit, the trier of fact is best suited to analyze and apply the Osakalumi/Talbert factors, the
    absence of an available finder of fact should not bar us from applying due process principles to the
    facts in the record or from “considering the other evidence that respondent was driving while under
    the influence of” controlled substances or drugs. Talbert, 245 W. Va. at 302, 858 S.E.2d at 927.
    In my view, a proper Talbert analysis shows that OAH properly affirmed the revocation of Ms.
    Yoder’s licenses.
    1
    See Osakalumi, 
    194 W. Va. at 759
    , 
    461 S.E.2d at 505
    , syl. pt. 2, in part (providing
    that “[i]n determining what consequences should flow from the State’s breach of its duty to
    preserve evidence, a trial court should consider (1) the degree of negligence or bad faith involved;
    (2) the importance of the missing evidence considering the probative value and reliability of
    secondary or substitute evidence that remains available; and (3) the sufficiency of the other
    evidence produced at the trial to sustain the conviction”).
    14
    Talbert’s first factor considers “the degree of negligence or bad faith involved in the
    violation of the statute [i.e., West Virginia Code § 17C-5-9.]” 245 W. Va. at 295, 858 S.E.2d at
    920, syl. pt. 6, in part. As the majority decision points out, Officer Williamson did not appear for
    the hearing before OAH, and the DUI Information Sheet only indicates that a blood test did not
    occur. Similarly, Ms. Yoder’s testimony before OAH merely establishes that she requested a blood
    test and that no blood test occurred. 2 Based on the record in this case, I find no “negligence or bad
    faith” to explain why Ms. Yoder did not receive a blood test. The record is simply blank on this
    issue, and I see no reason to think that remand to a trier of fact (if one were available) would yield
    further insight.
    Talbert’s second factor examines “the importance of the blood test evidence considering
    the probative value and reliability of secondary or substitute evidence that remains available[.]”
    Id. at 295, 858 S.E.2d at 920, syl. pt. 6, in part. In this case, Ms. Yoder arranged an eleven-panel
    urine screen on the day of her arrest, and the results of this screen were received into evidence
    before OAH. On remand from the circuit court, Ms. Yoder received further opportunity to offer
    expert testimony regarding the circumstances of the screen and its significance. According to her
    expert, the screen in question would yield a positive test for seven days after a person ingested any
    of the eleven substances. Though OAH ultimately concluded that Ms. Yoder was operating a
    motor vehicle under the influence of controlled substances or drugs, that was not because OAH
    found her evidence nonprobative or unreliable. Indeed, OAH found both of her experts “credible.”
    What troubled OAH was the fact that an eleven-panel urine screen would not exclude other “drugs
    or substances that are often abused such as Gabapentin, [i]nhalants, or synthetic marijuana.”
    Talbert’s third factor looks to “the sufficiency of the other evidence produced at the
    proceeding to sustain the revocation.” Id. at 295, 858 S.E.2d at 920, syl. pt. 6, in part. I believe
    that the evidence produced before OAH was sufficient to sustain the revocation of Ms. Yoder’s
    driver’s licenses. OAH found that Officer Williamson lawfully stopped Ms. Yoder “due to her
    2
    Here are the relevant excerpts:
    Q.     Okay. Now, in this case, did Officer Williamson
    ever take you to the hospital for a blood draw or anything like that?
    A.     No, sir. And I asked him to.
    ....
    Q.    Okay. Now, [does] that [i.e., having her “lungs
    broken”] account for failing the horizontal—or the eye test? Is that
    your testimony?
    A.      Actually, he had me there for about six or seven,
    eight, ten minutes. And he kept doing this, and I started laughing
    because it’s like if you follow somebody’s finger, I mean what are
    you supposed—? You know, I kept telling him I’m not drinking,
    go—please take me to get a drug test.
    15
    driving pattern” and that, during the stop, Officer Williamson observed “several signs” of
    impairment. OAH noted Officer Williamson’s observations that Ms. Yoder “stumbled out of her
    vehicle” and approached his vehicle; that her speech was “slightly slurred”; that “her eyes were
    red”; that she was “disoriented” and “confused”; that she had “dry mouth[] and a raspy voice”;
    and that she “made strange statements.” Additionally, according to OAH, “[s]everal impairment
    clues were detected on the field sobriety tests.” Specifically, OAH found that
    [d]uring the horizontal gaze nystagmus test, . . . [Ms. Yoder]’s eyes showed
    a lack of smooth pursuit, distinct and sustained nystagmus at maximum deviation,
    and the onset of nystagmus prior to forty-five (45) degrees. During the walk-and-
    turn test, . . . [she] could not keep her balance and started too soon during the
    instruction phase. During the walking stage, . . . [she] stopped while walking,
    stepped off the line, made an improper turn, missed heel-to-toe, raised his [sic] arms
    to balance and took the incorrect number of steps. During the one-leg[-]stand test,
    . . . [she] used her arms for balance and put her foot down. . . . [Officer Williamson]
    stopped the one-leg[-]stand test for . . . [her] safety.
    Despite hearing Ms. Yoder’s live testimony, OAH found that Officer Williamson’s account
    was “more credible and in line with common sense” and that Ms. Yoder’s testimony “as to her
    driving pattern and the reasons she drove this way[] d[id] not make sense[.]” OAH noted, in
    particular, Officer Williamson’s report that she “almost hit his patrol car” and “end[ed] up
    crossways in the middle of the road.” OAH was also critical of Ms. Yoder’s “decision to get out
    of her car and walk back to [the] patrol car”; OAH found that this indicated “impaired judgment.”
    In the end, OAH found that there was “a lot” of evidence that Ms. Yoder was driving while
    impaired and that “more likely than not” she was “under the influence of a controlled substance[]
    or drug[] that the [eleven-]panel drug screen test does not test for.” These findings are to be
    “accorded deference unless the reviewing court believes the findings to be clearly wrong.” Syl.
    Pt. 1, in part, Muscatell v. Cline, 
    196 W. Va. 588
    , 
    474 S.E.2d 518
     (1996). I do not believe that
    they are clearly wrong.
    Accordingly, because I believe that our consideration of the Talbert factors in this matter
    is proper and that such consideration supports the revocation of Ms. Yoder’s licenses, I respectfully
    dissent from that portion of the majority decision that affirms the circuit court’s reinstatement of
    Ms. Yoder’s licenses. 3
    3
    I would also note that West Virginia Code § 17C-5C-1a does not support the
    majority’s decision in this matter. While subsection (c)(1) of this section required that in appeals
    “pending before the office on or after July 1, 2021, the underlying revocation or suspension order
    shall be dismissed[,]” OAH entered its final order on June 29, 2021. Therefore, Ms. Yoder’s appeal
    was not “pending before the office on or after July 1, 2021,” and such section did not require
    dismissal of the revocation order. W. Va. Code § 17C-5C-1a(c)(1).
    16