Dept. of Motor Vehicles v. Cline
Annotate this CaseSeptember 1992 Term
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No. 20629
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WEST VIRGINIA DIVISION OF MOTOR VEHICLES,
Appellee Below, Appellant
v.
MITCHELL CLINE,
Appellant Below, Appellee
___________________________________________________________
Appeal from the Circuit Court of Kanawha County
Honorable John Hey, Judge
Civil Action No. 90-AA-189
REVERSED
___________________________________________________________
Submitted: September 22, 1992
Filed: November 12, 1992
Mario J. Palumbo, Esq.
Attorney General
Paul E. Jordan, Esq.
Assistant Attorney General
Charleston, West Virginia
Attorneys for the Appellant
Andrew Chattin, Esq.
Calwell & McCormick
Charleston, West Virginia
Attorney for the Appellee
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. "There are no provisions in either W.Va. Code, 17C-5-1 (1981), et seq., or W.Va. Code, 17C-5A-1 (1981), et seq., that
require the administration of a chemical sobriety test in order to
prove that a motorist was driving under the influence of alcohol or
drugs for purposes of making an administrative revocation of his
driver's license." Syllabus Point 1, Albrecht v. State, 173 W. Va.
268, 314 S.E.2d 859 (1984).
2. "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."
Syllabus Point 2, Albrecht v. State, 173 W. Va. 268, 314 S.E.2d 859
(1984).
Per Curiam:
The West Virginia Division of Motor Vehicles appeals an
order of the Circuit Court of Kanawha County, which reversed the
Division's order revoking the driver's license of Mitchell Cline
for driving under the influence and remanded the case to the
Division for an administrative hearing within thirty days. The
Division contends that circuit court erred in requiring the
Division to hold a hearing on the issue of implied consent when the
issue of implied consent was not the basis for the Division's
revocation of Mr. Cline's license. Because the record demonstrates
an adequate basis for the revocation of Mr. Cline's license, we
reverse.
At approximately 1:00 a.m. on November 12, 1988, Trooper
C. E. Akers of the West Virginia State Police saw Mr. Cline leave
a bar in the Blackbottom area of Logan, West Virginia. Shortly
thereafter Trooper Akers saw that a pick-up truck driven by Mr.
Cline was approximately two feet from the rear bumper of another
vehicle. Trooper Akers followed Mr. Cline and saw Mr. Cline's truck
move left of the center twice and continue to tailgate. When
Trooper Akers stopped Mr. Cline, he noticed the smell of alcohol
and Mr. Cline admitted to drinking a few beers. Trooper Akers
administered two field sobriety tests, namely, walk-and-turn and
one-leg-stand. After Mr. Cline failed both tests, Trooper Akers
arrested Mr. Cline for driving under the influence.
Mr. Cline protested his arrest saying that he had been
arrested for driving under the influence before and he did not
think he should be arrested this time. After Mr. Cline was taken
to jail, he refused to take the intoxilyzer test.
Later on November 12, 1988 Trooper Akers mailed a
Statement of the Arresting Officer to the Division of Motor
Vehicles. The form mailed by Trooper Akers is required by W. Va.
Code, 17C-5A-1 [1986] for routine driving under the influence
arrests. Trooper Akers did not send the form required by W. Va.
Code, 17C-5-7 [1986] for cases involving a refusal to take a
designated secondary chemical test.
On November 22, 1988, the Commissioner of the Division of
Motor Vehicles issued an order revoking Mr. Cline's license for ten
years for a second offense driving under the influence. At Mr.
Cline's request, an administrative hearing was held. Mr. Cline's
hearing notice said that the hearing would concern whether Mr.
Cline drove a motor vehicle under the influence of alcohol. Even
though Mr. Cline's refusal to take the intoxilyzer test was not at
issue, Trooper Akers testified and was cross-examined on Mr.
Cline's alleged refusal to take the test. The hearing examiner
intervened and informed the parties that the hearing concerned Mr.
Cline's arrest for driving under the influence and not on the
implied consent provisions.
On October 18, 1989, the Commissioner affirmed the
revocation of Mr. Cline's license for ten years based on the
evidence that Mr. Cline drove a motor vehicle under the influence
of alcohol. The order said that because Mr. Cline was not notified
of the implied consent rule, "[i]t would be unfair and improper to
invoke this issue without the Defendant being allowed to prepare a
proper defense on the matter." Mr. Cline appealed to the circuit
court who found error in the Division's proceedings and ordered the
Commissioner to hold another administrative hearing on the limited
issue of implied consent. Alleging that the circuit court erred,
the Division appealed to this Court.
I
The Division maintains that the circuit court erred in
remanding this case for a hearing on the issue of implied consent.
We note that the Division's order was based solely on Trooper
Akers' testimony of his observations. Although Mr. Cline refused
to take an intoxilyzer test, the Division's decision did not rely
upon the implied consent rule. Mr. Cline's notice said that the
administrative hearing would concern whether Mr. Cline was driving
under the influence. Even though the Division could have raised
the issue of implied consent, the hearing was limited to the
driving under the influence issue. The Division's final order
noted the procedural question on the implied consent issue and
based the revocation on Trooper Akers' testimony that Mr. Cline was
driving under the influence.
In Syllabus Point 1, Albrecht v. State, 173 W. Va. 268,
314 S.E.2d 859 (1984), we said:
There are no provisions in either W.Va.
Code, 17C-5-1 (1981), et seq., or W.Va. Code,
17C-5A-1 (1981), et seq., that require the
administration of a chemical sobriety test in
order to prove that a motorist was driving
under the influence of alcohol or drugs for
purposes of making an administrative
revocation of his driver's license.
See Syllabus, Hinkle v. Bechtold, 177 W. Va. 627, 355 S.E.2d 416
(1987)(holding that although chemical tests were administered, the
Commissioner could rely solely upon the arresting officer's
testimony to prove that the motorist was driving under the
influence). We find that the Division's action of relying solely
upon the arresting officer's testimony to prove that Mr. Cline was
driving under the influence of alcohol was proper.
II
Mr. Cline maintains that there was insufficient evidence
to revoke his license and requests that the Division's order be
reversed and the case not be remanded. The record indicates that
the arresting officer testified that he stopped Mr. Cline after the
truck Mr. Cline was driving crossed the center of the road twice
with a half mile and continued to tailgate. After detecting the
smell of alcohol, the State Trooper administered two field sobriety
tests, both of which Mr. Cline failed.
In Syllabus Point 2, Albrecht v. State, supra, we said:
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.
In the present case, there is evidence to show that Mr. Cline
operated a motor vehicle upon a public street or highway, exhibited
symptoms of intoxication, and had consumed alcoholic beverages. We
find this evidence is sufficient proof under a preponderance of the
evidence standard to warrant the administrative revocation of Mr.
Cline's driver's license for driving under the influence of
alcohol.
For the above stated reasons, we reverse the order of the
Circuit Court of Kanawha County and affirm the administrative
revocation of Mr. Cline's license.
Reversed.
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