Court says man's license should still be revoked

By Kyla Asbury | Mar 9, 2015

CHARLESTON – The state Supreme Court has ruled to reinstate a revocation of a West Virginia man's driver's license.

"After carefully considering the parties' briefs and oral argument, as well as the appendix record on appeal and the applicable law, we reverse the circuit court's order ... and remand this matter for reinstatement of the commissioner’s revocation order," according to an opinion issued by the West Virginia Supreme Court of Appeals on Feb. 27.

Justice Allen Loughry authored the majority opinion.

Justice Robin Jean Davis authored a dissenting opinion.

Deputy Edwin Delgado of the Taylor County Sheriff's Department testified that on the early morning of Oct. 24, 2010, his police cruiser was nearly hit head-on by an oncoming vehicle, requiring him to take quick evasive action to avoid a collision.

Delgado indicated that the driver of the other vehicle, Jeffrey Hill, took no action to avoid a collision and was traveling in excess of the posted speed limit, in the deputy's estimation, and the deputy turned around, caught up to the vehicle and initiated a traffic stop at 2:07 a.m.

Upon having Hill exit the vehicle, Delgado claimed he smelled an odor of an alcoholic beverage emanating from Hill's breath and the vehicle and that Hill had bloodshot and glassy eyes, was a bit unsteady while standing, talked in a continuous and excited manner and had a slight slur in his speech.

Delago arrested Hill for DUI at 2:25 a.m. and transported him to the police station. At 4:11 a.m., Hill registered a BAC of 0.108 on the designated secondary chemical breath test.

Hill admitted to drinking beer, but had chosen to drive his friend's car because he believed he was in a better condition to drive than his friends were and he was administered three field sobriety tests, but Hill failed the horizontal gaze nystagmus and his blood alcohol concentration from the breathalyzer test was 0.114. He passed the one-leg stand and the walk and turn test.

During his testimony at the administrative hearing, Delgado said that Hill had actually passed the HGN.

Delgado wrote on the DUI information sheet that during a post-arrest interview, Hill admitted that he had consumed four 12-ounce bottles of light beer in a period of one hour, however, during his administrative hearing, Hill testified that he had consumed this amount of beer over a longer period of time and that he had stopped drinking one hour before driving in an attempt to "sober up."

On Jan. 28, 2011, Patricia Reed entered an order revoking Hill's driver's license for DUI and Hill timely challenged the revocation at the Office of Administrative Hearings.

After holding an evidentiary hearing, the OAH reversed the commissioner's revocation order and concluded that the deputy had sufficient reasonable suspicion to initiate the traffic stop, but did not have reasonable grounds to believe he was driving under the influence of alcohol to make a lawful arrest. The OAH's order did not mention the secondary breath test.

The OAH found that the HGN test was improperly administered and must be disregarding and that the breathalyzer test must be disregarding because Delgado was not properly certified to administer the PBT and had failed to observe Hill for 15 minutes before administering the test.

Reed appealed to the circuit court, which affirmed the OAH on Dec. 30, 2013. In addition to discounting the evidence of the HGN and PBT tests, the circuit court concluded that the results of the secondary chemical test should be disregarded because, in the circuit court’s opinion, Delgado did not constantly observe Hill for the required 20 minutes prior to the administration of the secondary test.

Reed the appealed the circuit court's order to seek reinstatement of the revocation order.

"In this case, Deputy Delgado testified that Mr. Hill was in his presence and view during the entire twenty-minute observation period, and that he ensured Mr. Hill had nothing in his mouth during that period," the opinion states. "There is no evidence in the record to contradict this testimony or otherwise indicate that the secondary breath test result was compromised."

For example, there was no evidence that the deputy left the immediate area where Hill was being held, no evidence that the deputy was distracted by other people and no evidence of food or drink that Hill could have covertly ingested when the deputy’s eyes were momentarily diverted, according to the opinion.

"There is nothing in the record to indicate that performing tasks at the testing device interrupted Deputy Delgado’s ability to constantly observe Mr. Hill," the opinion states. "Consequently, we find that the circuit court erred when excluding from evidence Mr. Hill’s secondary chemical breath test result. The preponderance of the evidence in this case, including the events leading up to the arrest and the result of the secondary chemical breath test, prove that Mr. Hill was DUI on October 24, 2010. Accordingly, we conclude that the circuit court erred in affirming the OAH’s order that overturned the commissioner’s revocation order."

In her dissent, Davis stated that in this proceeding, the lower tribunals found that Hill was unlawfully arrested and, therefore his driver’s license was improperly revoked.

"The lower tribunals correctly determined that because the PBT was invalid, no legal basis existed for the officer to arrest Mr. Hill," her dissenting opinion states. "The majority opinion disagreed and found that, even though Mr. Hill passed the one leg stand, walk and turn and HGN tests, and that the PBT was invalid, the officer nevertheless had probable cause to arrest Mr. Hill"

The majority's decision had "drastically altered the probable cause standard for a DUI arrest of a motorist during a routine stop of a vehicle based on reasonable suspicion," the dissenting opinion states.

"Let me be clear. Our cases do recognize that there can be circumstances where field sobriety tests cannot be administered; yet, an arrest for DUI may ensue," Davis' opinion states.

However, until the majority opinion in the instant case, the decisions of this court have always required evidence of failed field sobriety tests to support an arrest after a routine stop of a vehicle on mere suspicion, according to her opinion.

"I strongly disagree with the majority’s deviation from our well-settled law," she stated.

Reed was represented by West Virginia Attorney General Patrick Morrisey and Senior Assistant Attorney General Janet E. James.

Hill was represented by Todd F. La Neve.

West Virginia Supreme Court of Appeals case number: 14-0103

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