770 S.E.2d 501
W. Va.2015Background
- On Oct. 24, 2010 Deputy Delgado stopped Jeffrey Hill after Hill nearly caused a head-on collision; Hill conceded the stop was justified.
- At the scene officer detected alcohol odor, bloodshot/glassy eyes, slight slurred speech, unsteadiness, and Hill admitted drinking beer; officer administered HGN, walk-and-turn, one-leg-stand, and a Preliminary Breath Test (PBT).
- Hill passed the walk-and-turn and one-leg-stand; the DUI form recorded four HGN clues (a failing score), but the officer later gave contradictory testimony about the HGN.
- The PBT registered .114 but was given less than 15 minutes after contact; Hill was arrested and later registered .108 on a secondary (chemical) breath test at the station.
- OAH reversed the administrative revocation, finding HGN and PBT unreliable and concluding the arrest lacked lawful probable cause; the circuit court affirmed but also excluded the secondary test on its interpretation of the 20‑minute observation rule.
- The West Virginia Supreme Court reversed, holding there was probable cause to arrest and that the secondary .108 result was admissible because the officer satisfied the 20‑minute observation requirement (as interpreted by the Court).
Issues
| Issue | Commissioner (petitioner) argument | Hill (respondent) argument | Held |
|---|---|---|---|
| Lawfulness of arrest / probable cause | Officer had probable cause based on dangerous driving, odor, bloodshot eyes, slurred speech, admission of drinking; PBT guided arrest | Arrest lacked probable cause because PBT and HGN were unreliable/invalid and Hill passed other field tests | Probable cause existed despite invalid HGN/PBT: totality (driving, odor, admissions, signs) supported arrest |
| Admissibility of HGN and weight | HGN admissible if properly administered; here officer’s form supported failure | HGN unreliable due to officer’s contradictory testimony and failure to perform pre‑checks | HGN properly disregarded as OAH did (contradictions undermined administration) |
| Validity of PBT | PBT valid; supported arrest | PBT invalid because officer did not observe 15‑minute waiting period and certification record issues | PBT excluded: officer failed 15‑minute observation rule (and OAH’s contrary certification finding was clearly wrong) |
| Admissibility of secondary chemical (.108) test / 20‑minute observation rule | Secondary test admissible; officer kept Hill under constant observation for 20 minutes using sight/ hearing/ smell while preparing device | Circuit court/OAH argued observation not "constant" because officer briefly worked on device; thus secondary result should be excluded | Secondary test admissible: “constant observation” need not be uninterrupted visual stare; other senses and proximity suffice; officer’s unrefuted testimony satisfied requirement, so .108 admitted and revocation reinstated |
Key Cases Cited
- Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (W.Va.) (administrative-review standard of review)
- Shepherdstown Volunteer Fire Dept. v. State ex rel. Human Rights Comm’n, 172 W.Va. 627, 309 S.E.2d 342 (W.Va.) (grounds for judicial reversal of administrative orders)
- White v. Miller, 228 W.Va. 797, 724 S.E.2d 768 (W.Va.) (HGN and other evidence used together to support revocation)
- Dale v. Ciccone, 233 W.Va. 652, 760 S.E.2d 466 (W.Va.) (lawful arrest requirement for administrative revocation)
- Michigan v. DeFillippo, 443 U.S. 31 (U.S.) (probable cause definition for arrests)
- Illinois v. Gates, 462 U.S. 213 (U.S.) (probable cause is a practical, totality‑of‑circumstances inquiry)
- Wong Sun v. United States, 371 U.S. 471 (U.S.) (arrest need not be supported by evidence sufficient for conviction)
- Maryland v. Pringle, 540 U.S. 366 (U.S.) (probable cause standard and practical approach)
- State v. Dyer, 160 W.Va. 166, 233 S.E.2d 309 (W.Va.) (secondary chemical test must follow approved methods)
- Albrecht v. State, 173 W.Va. 268, 314 S.E.2d 859 (W.Va.) (symptoms + operation of vehicle + consumption suffices for revocation)