Everett Frazier, Commissioner, West Virginia DIvision of Motor Vehicles v. Michael G. Moore ( 2023 )

FILED
June 13, 2023
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
STATE OF WEST VIRGINIA OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Everett Frazier, Commissioner,
West Virginia Division of Motor Vehicles,
Petitioner Below, Petitioner
vs.) No. 22-0284 (Kanawha County 21-AA-27)
Michael G. Moore,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Everett Frazier, Commissioner of the West Virginia Division of Motor Vehicles,
appeals the March 15, 2022, order of the Circuit Court of Kanawha County affirming the April 19,
2021, decision of the Office of Administrative Hearings (“OAH”), which rescinded the revocation
of Respondent Michael G. Moore’s driving privileges by the Division of Motor Vehicles.1 Upon
our review, finding no substantial question of law and no prejudicial error, we determine that oral
argument is unnecessary and that a memorandum decision affirming the circuit court’s order is
appropriate. See W. Va. R. App. P. 21(c).
In September of 2019, respondent was arrested in Logan County, West Virginia, and
charged with driving under the influence (“DUI”) in violation of West Virginia Code § 17C-5-
2(e). Thereafter, the Division of Motor Vehicles entered an Order of Revocation, revoking
respondent’s driving privileges. Respondent sought an administrative hearing to contest the
revocation of his driver’s license, and a hearing was held before the OAH in August of 2020. At
the hearing, the parties introduced the DUI Information Sheet and the testimony of the
investigating officer and respondent.
The evidence established that the investigating officer witnessed respondent driving a
Harley Davidson motorcycle. The investigating officer radioed the Logan County 911 for
respondent’s registration information. The Logan County 911 informed the investigating officer
that respondent’s motorcycle was registered as a Honda, prompting the investigating officer to
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Petitioner appears by counsel Attorney General Patrick Morrisey and Assistant Attorney
General Elaine L. Skorich. Respondent appears by counsel Matthew M. Hatfield.
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stop respondent at approximately 6:45 p.m.2 Prior to the stop, the investigating officer observed
respondent driving normally and did not see respondent commit any traffic infractions. The
investigating officer noted on the DUI Information Sheet that respondent exhibited an odor of
alcoholic beverage; drowsiness; bloodshot, watery eyes; and body tremors; however, he also noted
that respondent was normal when exiting his vehicle, walking to the roadside, and standing.
Respondent disputed that he exhibited any indicia of intoxication.
Respondent told the investigating officer that he had had one beer with lunch and that he
had taken Suboxone without a valid prescription.3 At the time of the stop, respondent had a
Suboxone film in his wallet. The investigating officer testified:
I don’t recall if he told me he had just taken a Suboxone or actually when
he took Suboxone. He just told me that he’d taken Suboxone but he does not have
a prescription for them. So I can’t tell you if [respondent] had taken a Suboxone
five minutes before or if he had taken one five days before.
Respondent also told the investigating officer that he had been prescribed mirtazapine and
trazodone by the Hershel “Woody” Williams VA Medical Center.4 His prescribing information
indicated that he should take his mediations at bedtime “for mood or sleep,” and respondent
testified that he took his medications as directed the evening before the traffic stop and that he did
not feel the effects of his medications upon waking in the morning.
The investigating officer administered three field sobriety tests: the horizontal gaze
nystagmus (“HGN”) test, the walk-and-turn (“WAT”) test, and the one-leg stand (“OLS”) test.
The officer observed impairment detection clues on each of the tests. The officer noted that during
the HGN test, respondent’s eyes “lacked smooth pursuit, distinct and sustained nystagmus at
maximum deviation and onset of nystagmus prior to forty-five (45) degrees in both eyes”;
however, the officer admitted that he did not know how far he held the tracking device from
respondent’s nose, guessing the distance to have been “anywhere from eight to twelve inches, ten
inches, something like that.” The officer noted that during the WAT test, respondent “took an
incorrect number of steps, made an improper turn, stopped while walking, and raised his arms for
balance.” Finally, regarding respondent’s performance of the OLS test, the officer stated that
respondent “swayed while balancing, used his arms for balance and counted incorrectly.” He also
claimed respondent had body tremors during the OLS test.
Respondent attributed his poor performance on the field sobriety tests to injuries sustained
while he served in the United States Marine Corps, which caused him to suffer right achilles
tendonitis, right knee patellar subluxation with chronic patellar tendonitis, and right knee
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The 911 dispatcher was mistaken; respondent’s motorcycle was properly registered as a
Harley Davidson.
3
Suboxone is a Schedule III controlled substance. See W. Va. Code § 60A-2-208(e)(2).
4
Neither mirtazapine nor trazodone is named as a controlled substance in the West Virginia
Code.
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instability. For his injuries, he received a 40% service disability rating. Regarding the WAT test,
respondent indicated that his right leg bothered him during the test. As for the OLS test, respondent
testified, “I had indicated that I had a right knee injury and I couldn’t stand for a period of time on
my right knee, so I asked to switch legs, which I did, and I was allowed to, and I stood on my left
leg.” Respondent also has a basal cell carcinoma below his left eye that he claimed can blur his
vision at times. Respondent denied being under the influence of alcohol, controlled substances, or
drugs at the time of the stop.
The investigating officer did not administer a preliminary breath test. The officer obtained
a warrant to draw a blood sample from respondent, and the blood draw occurred at approximately
8:40 p.m. No ethanol (alcohol) was detected in respondent’s blood. Neither buprenorphine
(Suboxone) nor its metabolite norbuprenorphine were detected in respondent’s blood; however,
the respondent’s blood was positive for mirtazapine, desmethylmirtazapine (a metabolite of
mirtazapine), and trazodone.
The OAH entered a final order on April 19, 2021, rescinding the revocation of respondent’s
driving privileges. The OAH concluded, “[A]lthough the [respondent] did exhibit some indicia of
being impaired, the [] evidence considered in its entirety does not prove that this actually
happened.” Regarding the investigating officer’s observation that respondent was drowsy, the
OAH said, “[N]othing suggests that he actually fell asleep or nodded off while in [the investigating
officer’s] company.” Regarding respondent’s performance on the field sobriety tests, the OAH
found that respondent had presented medical documentation detailing his service-related injuries.
As for respondent’s blood sample, the OAH observed, “While the concentrations of the
compounds present in the blood specimen appear to be rather high, nothing was presented to show
that the concentrations are above and beyond what would be considered to be a therapeutic range.”
The OAH noted, “It does not appear that any attempt was made to secure an expert who could
appear for the hearing and explain the therapeutic ranges for the various medications.”
Respondent appealed the OAH’s decision to the Circuit Court of Kanawha County. By
order entered on March 15, 2022, the court affirmed the OAH’s order. The court determined that,
based on the blood evidence and the investigating officer’s testimony, the OAH was not clearly
wrong and did not abuse its discretion in concluding that respondent was not under the influence
of alcohol or Suboxone when he was stopped by the investigating officer. Regarding the HGN test,
the court found that petitioner “did not adduce any evidence before the OAH to prove the HGN
was properly administered or that [the investigating officer] was knowledgeable of the intoxication
cues to be aware.” The court concluded that the OAH was not clearly wrong and did not abuse its
discretion in determining that “the results of the HGN test did not prove the [r]espondent was”
under the influence “of alcohol, controlled substances[,] or drugs.” Finally, the circuit court
discussed the OAH’s determination concerning “therapeutic range”:
The [p]etitioner attempts to shift the burden upon the [r]espondent to show he was
not driving while under the influence of drugs by contending that the OAH
erroneously relied on the fact no expert witnesses were called to explain therapeutic
ranges for the identified substances. . . . The [c]ourt notes that [p]etitioner had the
burden of proof before the OAH, not the [r]espondent. Thus, if the [p]etitioner
wanted to demonstrate the concentrations of [t]razadone and [m]irtazapine in the
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[r]espondent’s system were not within the “therapeutic range”, it could have easily
retained an expert to proffer such opinions. It, however, did not do so.
The circuit court concluded that “the OAH did not commit reversible error based upon a
‘therapeutic range’ theory.”
Petitioner now appeals the circuit court’s order, arguing that the circuit court erroneously
discounted relevant evidence, including the HGN evidence, and that “the circuit court erred in
finding that the petitioner shifted the burden to the respondent by contending that the OAH
erroneously relied on the fact that no expert witnesses were called to explain therapeutic ranges
for the drugs found in the respondent’s system.” In reviewing the circuit court’s order, we apply
“the same standard of review that the circuit court applied to the Commissioner’s administrative
decision, meaning that we give deference to the Commissioner’s purely factual determinations,
but we give a de novo review to legal determinations.” Ullom v. Miller, 227 W. Va. 1, 7, 705
S.E.2d 111, 117 (2010). Our review of the circuit court’s findings of fact is for clear error. See Syl.
Pt. 1, in part, Muscatell v. Cline, 196 W. Va. 588, 474 S.E.2d 518 (1996) (“On appeal of an
administrative order from a circuit court, . . . findings of fact by the administrative officer are
accorded deference unless the reviewing court believes the findings to be clearly wrong.”).
West Virginia Code § 17C-5-2(e) (2019), provides, in relevant part, 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[.]” A person is considered to be in an impaired
state when that person is under the influence of alcohol, a controlled substance, any drug or
inhalant substance, any combination of these, or the person has a blood alcohol concentration of
eight hundredths of one percent or more, by weight. Id. § 17C-5-2(a)(1). The issue before the Court
is whether sufficient evidence existed to establish that, under the totality of the circumstances,
respondent was driving while impaired by alcohol, a controlled substance, a drug or inhalant
substance, or any combination of these. We have recognized that in license revocation
proceedings, petitioner bears the burden of proving, by a preponderance of the evidence, that a
driver, such as respondent, was driving while in an impaired state. Cain v. W. Va. Div. of Motor
Vehicles, 225 W. Va. 467, 472-73, 694 S.E.2d 309, 314-15 (2010). Having reviewed the record in
this matter, we find no clear error in the OAH and circuit court’s determination that the evidence
was insufficient to establish that respondent was driving in an impaired state.
First, the evidence supported the conclusion that respondent was not impaired by alcohol
when he was stopped by the investigating officer. Although the officer smelled the odor of an
alcoholic beverage on respondent and respondent admitted to having a beer with lunch, the blood
test results showed that respondent had no alcohol in his blood. Under these facts, we find no clear
error in the OAH and circuit court’s determination that respondent was not impaired by alcohol.
Second, the evidence supported the conclusion that respondent was not impaired by
Suboxone or any other controlled substance when he was stopped by the investigating officer.
While respondent admitted to having taken Suboxone, neither the drug nor a metabolite of the drug
was detected in respondent’s blood. No other controlled substance was found in respondent’s
blood, and no evidence was presented showing that respondent had consumed a controlled
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substance other than Suboxone. Consequently, we find no clear error in the OAH and circuit
court’s determination that respondent was not impaired by Suboxone when he was stopped by the
investigating officer.
Third, the evidence supported the conclusion that respondent was not impaired by any drug,
particularly his prescription medications, when he was stopped by the investigating officer. No
evidence was presented showing that petitioner took any drugs other than his prescription
medications (except Suboxone, as discussed above) or inhalants. While the investigating officer
noted that respondent had bloodshot and watery eyes, body tremors, and appeared to be drowsy,
the officer’s other observations—that respondent drove normally, that he did not commit any
traffic infractions, and that he dismounted his motorcycle, walked, and stood without difficulty—
coupled with respondent’s own testimony that he did not exhibit any indicia of intoxication,
indicated that respondent’s physical appearance, if accurately described by the investigating
officer, was not attributable to impairment by his prescription medications. Furthermore, although
respondent performed poorly on the WAT and OLS tests, performance on the tests was reasonably
attributable to his service-related injuries, for which he was declared partially disabled, rather than
impairment by his prescription medications. Moreover, petitioner presented no evidence below
demonstrating that respondent did not take his medications as prescribed or that the medications,
taken as prescribed, with or without alcohol, could have placed him in an impaired state at the time
he was stopped by the investigating officer. Consequently, the OAH’s observation that petitioner
failed to secure an expert to explain the therapeutic ranges for respondent’s medications was
relevant and probative of the issue before it. Finally, while respondent performed poorly on the
HGN test, even assuming the test was properly administered and that respondent failed to rebut
the evidence, evidence of respondent’s poor performance on the HGN test, without more, would
be insufficient to justify revocation of respondent’s driver’s license. See Syl. Pt. 3, in part, White
v. Miller, 228 W. Va. 797, 724 S.E.2d 768 (2012) (“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
[HGN] test.”). Accordingly, we discern no clear error in the OAH and circuit court’s determination
that respondent was not impaired by his prescription medications. In conclusion, upon providing
the proper deference to the OAH and circuit court’s findings, we find no clear error in their
conclusion that petitioner was not DUI.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: June 13, 2023
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
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