Patricia S. Reed, Comm. DMV v. George Zipf, 239 W. Va. 752

On July 28, 2012, George Zipf was stopped at a Vienna, WV sobriety checkpoint, directed to a testing area, failed field sobriety tests and a preliminary breath test, was arrested for DUI, and later failed a breath test at the station.
The DMV revoked Zipf’s driver’s license; Zipf requested an OAH administrative hearing and indicated on his form he intended to challenge both the secondary chemical test and the sobriety checkpoint operational guidelines.
At the OAH hearing, Sergeant K.L. Parrish (checkpoint supervisor) and Officer J.A. Cole (who administered tests and arrested Zipf) testified; Officer D.W. Lindsey (the stopping officer) did not attend.
Parrish testified in detail that the Vienna Police Department followed its written sobriety checkpoint guidelines; Zipf did not contest that testimony, present contrary evidence, or ask to review the written guidelines at the hearing.
A DUI Information Sheet in the record contained Officer Lindsey’s observations (slurred speech and odor of alcohol); the OAH nevertheless rescinded the revocation, reasoning the guidelines weren’t admitted into evidence and the stopping officer did not testify.
The circuit court affirmed the OAH; the Supreme Court of Appeals reversed, holding there was sufficient evidence the arrest was lawful and remanding to reinstate the DMV’s revocation.

Issue	Zipf's Argument	DMV's Argument	Held
Whether the DMV was required to submit written sobriety checkpoint guidelines into evidence because Zipf gave prehearing notice he would challenge them	Zipf argued the written guidelines (and their admission) were required to prove checkpoint validity	DMV argued prehearing notice requires the DMV to be prepared to prove compliance, but testimony (Parrish) or other evidence suffices; written guidelines need not be admitted absent a contested issue	The court held written guidelines were not required where the driver did not contest the supervisor’s uncontroverted testimony of compliance; Carte does not force documentary proof in every notice case
Whether the stopping officer must personally testify about grounds for detention when his observations appear on the DUI Information Sheet in the record	Zipf argued the stop/detention was improperly supported because Officer Lindsey did not testify	DMV argued the DUI Information Sheet containing the stopping officer’s observations is admissible and suffices to establish the basis for the stop	The court held the DUI Information Sheet was admissible and adequate; the absence of the stopping officer’s live testimony did not invalidate the stop (Dale and Crouch govern admission)

Carte v. Cline, 194 W.Va. 233, 460 S.E.2d 48 (1995) (driver must give written prehearing notice to challenge checkpoint guidelines; state must be prepared to present testimony or other evidence of compliance)
Crouch v. W.Va. Div. of Motor Vehicles, 219 W.Va. 70, 631 S.E.2d 628 (2006) (arresting officer’s written statement/DUI Information Sheet in DMV possession is admissible in administrative revocation hearings)
White v. Miller, 228 W.Va. 797, 724 S.E.2d 768 (2012) (when a driver actively disputes compliance and repeatedly seeks the written guidelines, the guidelines may be necessary and must be admitted to resolve contested issues)
Dale v. Odum, 233 W.Va. 601, 760 S.E.2d 415 (2014) (DUI Information Sheet can establish a valid stop even if the stopping officer does not testify)
Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996) (standard of review for appeals from administrative orders: legal questions reviewed de novo; factual findings afforded deference unless clearly wrong)