749 S.E.2d 227
W. Va.2013Background
- Early morning stop of Donna McCormick after trooper observed swerving, U-turn, and car partially left in roadway; officer detected alcohol odor, glassy eyes, slurred speech, unsteady gait.
- McCormick admitted drinking two mixed drinks and drinking while driving; trooper observed her discard something from car.
- Trooper Miller administered three field sobriety tests (horizontal gaze nystagmus, walk-and-turn, one-leg stand); McCormick failed all three.
- At the station an Intoximeter breath test registered a BAC of .105; DMV revoked McCormick’s license for six months.
- McCormick challenged revocation; DMV issued amended final order; circuit court reversed DMV, finding field tests and intoximeter evidence improperly administered and alleging bias; DMV appealed to West Virginia Supreme Court.
- Supreme Court reversed the circuit court, holding the administrative findings (field tests and intoximeter) were supported by evidence and that any alleged procedural defects went to weight, not admissibility; remanded to reinstate DMV revocation.
Issues
| Issue | McCormick's Argument | DMV's Argument | Held |
|---|---|---|---|
| Admissibility and proper administration of field sobriety tests | Trooper failed to follow NHTSA/State Police Academy protocols (foundation, required inquiries, proper procedures) | Trooper testified he demonstrated and administered tests per training; hearing examiner credited him | Field test results admissible; circuit court erred in rejecting them absent specific findings of noncompliance |
| Admissibility of horizontal gaze nystagmus (HGN) evidence | HGN is a scientific test requiring "general acceptance" proof per Barker/Clawson | HGN is a field sobriety test; officer need only show training and compliance per White | HGN admissible as field sobriety evidence; Barker’s general-acceptance rule is obsolete; White controls |
| Intoximeter 20-minute observation requirement | Trooper may have left room, violating constant observation rule and contaminating result | Even if Miller left, another trooper (Perdue) remained and regulation requires constant observation, not observation necessarily by the test operator | Observation requirement satisfied; hearing examiner’s credibility finding that observation occurred must be respected |
| Sufficiency of evidence to revoke license absent intoximeter or if intoximeter excluded | Without chemical test, field tests and observations insufficient or improperly admitted | Independent observations, admissions, and failed field tests suffice to meet preponderance standard for administrative revocation | Even without Intoximeter result, evidence (erratic driving, odor, admission, slurred speech, failed field tests) supports revocation under Albrecht |
Key Cases Cited
- Francis O. Day Co., Inc. v. Director, Division of Environmental Protection, 191 W. Va. 134 (administrative evidentiary findings not reversed unless clearly wrong)
- White v. Miller, 228 W. Va. 797 (HGN is a field sobriety test; officer must testify to NHTSA training and compliance)
- Albrecht v. State, 173 W. Va. 268 (observations of driving, intoxication symptoms, and drinking suffice for administrative revocation)
- Muscatell v. Cline, 196 W. Va. 588 (standards of review for appeals from administrative orders)
- Wilt v. Buracker, 191 W. Va. 39 (rejected prior general-acceptance standard for scientific evidence)