STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Steven O. Dale, Acting Commissioner of FILED 

the West Virginia Division of Motor Vehicles, March 28, 2014 

RORY L. PERRY II, CLERK Petitioner Below, Petitioner SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

vs) No. 13-0374 (Kanawha County 12-AA-123) 

Ryne E. Arthur,
 

Respondent Below, Respondent
 

MEMORANDUM DECISION 

Petitioner Steven O. Dale, Acting Commissioner of the West Virginia Division of Motor 

Vehicles (“DMV”), by counsel Elaine L. Skorich, appeals the order of the circuit court entered 

March 5, 2013. The circuit court affirmed the decision of the Office of Administrative Hearings 

(“OAH”) that reversed Respondent Ryne E. Arthur’s driver’s license revocation. Respondent, by 

counsel Carter Zerbe and David Pence, filed a response. Petitioner filed a reply. 

This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 

of the Rules of Appellate Procedure. 

On November 6, 2010, Trooper C.M. Thorton of the West Virginia State Police, the 

investigating officer in this matter, was assisting with a sobriety checkpoint on U.S. Route 60 in 

Jefferson, Kanawha County, West Virginia. At approximately 11:20 pm, respondent was stopped 

at the sobriety checkpoint. Trooper Thorton observed that respondent had the odor of alcohol on 

his breath, was unsteady exiting his vehicle and walking to the roadside, and had slow speech 

and bloodshot eyes. Respondent admitted that he “drank a couple beers and some Southern 

Comfort.” Trooper Thorton also found a partially empty bottle of Southern Comfort in 

respondent’s vehicle. Trooper Thorton then administered a series of field sobriety tests to 

respondent that he failed. Respondent was then arrested for suspicion of driving under the 

influence (“DUI”). A secondary chemical test showed respondent had a blood alcohol 

concentration of 0.143 percent. 

On December 8, 2010, the DMV sent respondent an order of driver’s license revocation 

for DUI which was to become effective on January 12, 2011. Respondent appealed his license 

revocation to the OAH. Respondent gave notice that the sobriety checkpoint would be 

challenged at the hearing. 

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On April 4, 2012, a hearing examiner conducted a final administrative hearing on 

respondent’s challenge of the driver’s license revocation. The hearing examiner stated that in 

accordance with West Virginia Code 29A-5-2(b), “all documents contained in the file are 

accepted and admitted into evidence in this case and are marked as Exhibits 1 through 13.” 

Respondent’s counsel objected to the admission of the DMV’s file on the basis that the 

“evidence that should be addressed and entertained should be that as presented here in this 

proceeding.” The hearing examiner noted but did not rule on this objection. At the administrative 

hearing, the DMV did not submit evidence regarding established guidelines for the operation of 

the sobriety checkpoint. Respondent did not testify at the hearing. 

On September 10, 2012, the OAH entered its order reversing respondent’s driver’s 

license revocation. Thereafter, the DMV filed a motion to reconsider that decision. The OAH’s 

denied the DMV’s motion to reconsider and found: 

As previously stated in the findings of facts contained in the [OAH’s] Order of 

September 10, 2012, the [DMV] did not introduce any evidence at the hearing to 

establish that the essential sobriety checkpoint procedures were followed 

specifically as to whether the supervisor in charge contacted the local prosecuting 

attorney for inclusion in checkpoint planning; the location selection of the 

checkpoint based upon various statistics; the safety and visibility for officers and 

the public – including adequate lighting, sufficient space, and an alternate route 

for any driver that wishes to avoid the checkpoint; and advance notice to the 

public (typically by media publication of the location, date and time of the 

checkpoint). According to W.Va. Code § 17C-5A-2(f)(2) [2010] and § 17C-5A2(s) [2010], the December 8, 2010 Order of Revocation must be rescinded if 

[respondent] was not lawfully placed under arrest or lawfully taken into custody. 

The lawfulness of [respondent’s] arrest and custody hinges on the compliance 

with and adherence to sobriety checkpoint operational guidelines, a subject on 

which the [DMV] did not offer evidence during the hearing on the merits of the 

case. 

The DMV appealed to the Circuit Court of Kanawha County. By order entered on March 

5, 2013, the circuit court affirmed the decision of the OAH. The circuit court found that the “crux 

of this matter concerns the legality of a sobriety checkpoint,” and “no evidence regarding 

established guidelines for the operation of the checkpoint was presented.” 

The DMV appeals to this Court and requests reinstatement of the order revoking 

respondent’s driver’s license. Our standard of review in this matter is found in Muscatell v. 

Cline, Commissioner, 196 W.Va. 588, 474 S.E.2d 518 (1996), an administrative driver’s license 

revocation case, Syllabus Point 1 of which holds: 

On appeal of an administrative order from a circuit court, this Court is 

bound by the statutory standards contained in W.Va. Code § 29A-5-4(a) 

[concerning contested cases under the West Virginia Administrative Procedures 

Act] and reviews questions of law presented de novo; findings of fact by the 

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administrative officer are accorded deference unless the reviewing court believes 

the findings to be clearly wrong. 

In accord, Syl. Pt. 1, Ullom v. Miller, Comm’r, 227 W.Va. 1, 705 S.E.2d 111 (2010). Moreover, 

West Virginia Code 29A-5-4(g)(6) of the Administrative Procedures Act provides that a reversal 

is warranted when the administrative decision is arbitrary and capricious. 

On appeal, the DMV contends that the circuit court should have remanded the matter for 

further hearing solely on the issue of the lawfulness of the sobriety checkpoint, citing White v. 

Miller, 228 W.Va. 797, 724 S.E.2d 768 (2012). In response, respondent states that this case is 

distinguishable from White because there was no evidence whatsoever to suggest that the 

predetermined guidelines regarding the sobriety checkpoint existed or that the officers complied 

with those guidelines.1 

The DMV does not dispute the fact that respondent timely and appropriately provided 

advance notice of his intent to challenge the sobriety checkpoint which resulted in the stop of his 

vehicle. The DMV was represented by counsel and was afforded the opportunity to secure and 

present evidence at the administrative hearing regarding the legality of the sobriety checkpoint 

yet failed to do so. We therefore decline to remand this matter for further hearing. 

The DMV also argues that the OAH and circuit court should have considered the 

evidence admitted at the hearing that showed respondent was DUI instead of excluding the same. 

Conversely, respondent maintains that since the DMV failed to carry its burden of proof to show 

that respondent was “lawfully placed under arrest” as required by West Virginia Code § 17C-5A2(f) (2010), the analysis ends. Respondent relies on this Court’s decision in Clower v. West 

Virginia Department of Motor Vehicles, 223 W.Va. 535, 678 S.E.2d 41 (2009), superseded by 

statute as stated in Miller v. Chenoweth, 229 W.Va. 114, 727 S.E.2d 658 (2012).2 

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In White v. Miller, 228 W.Va. 797, 724 S.E.2d 768 (2012), both the arresting officer and 

the supervising officer in charge of establishing the sobriety checkpoint appeared and testified at 

the administrative hearing. Detailed testimony was presented outlining the manner in which the 

sobriety checkpoint was conducted and how it complied with the predetermined operational 

guidelines. Absent from the record was an actual copy of the standardized, predetermined 

guidelines for the checkpoint that the officers brought to the hearing but refused to produce to 

opposing counsel. In White, White’s counsel requested the production of the predetermined 

operational guidelines for the sobriety checkpoint in order to cross-examine the officers. The 

hearing examiner refused to compel the officers to produce the operational guidelines. This 

Court ruled that the hearing examiner erred in denying White’s request. We remanded the matter 

in White to allow the driver an opportunity to cross-examine the officers to determine if their 

testimony corresponded to the requirements of the predetermined guidelines. 

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Our decision in Clower v. West Virginia Department of Motor Vehicles, 223 W.Va. 535, 

544, 678 S.E.2d 41, 50 (2009), applied the 2004 version of West Virginia Code § 17C-5A-2(e) 

which required a specific finding of “whether the person was lawfully placed under arrest for an 

offense involving driving under the influence of alcohol . . . or was lawfully taken into custody 

for the purpose of administering a secondary test.” The 2008 version of the statute did not 

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In its reply, the DMV urges the Court to take this opportunity to overrule Clower. The 

DMV argues that the determination of the validity of the criminal arrest should not be brought 

into the administrative process. We disagree. Clower is still persuasive authority for purposes of 

our analysis because the 2004 version of the statute applicable in Clower is the same as the 2010 

version applicable herein. In Clower this Court found that Mr. Clower was not lawfully arrested 

as required by West Virginia Code § 17C-5A-2(e) (2004). We therefore did not address the 

evidence showing Mr. Clower had slurred speech, smelled of alcohol, failed the field sobriety 

tests, and had a blood alcohol content of 0.182 percent. 

Our decision in this matter is controlled by the statute that requires a specific finding by 

the hearing examiner of “whether the person was lawfully placed under arrest for an offense 

involving driving under the influence of alcohol . . . or was lawfully taken into custody for the 

purpose of administering a secondary test.” W.Va. Code § 17C-5A-2(f) (2010). We acknowledge 

that the administrative law governing driver’s license revocation proceedings is a creature of 

statute, created by the Legislature. Therefore, the decision to include this requirement is within 

the prerogative of the Legislature, and it is not to be invaded by this Court. See generally State ex 

rel. Beirne v. Smith, 214 W.Va. 771, 775-76, 591 S.E.2d 329, 333-34 (2003). 

We now proceed to address the legality of the sobriety checkpoint. “If the stop at the 

sobriety checkpoint was unlawful, the evidence gathered at the checkpoint may have been 

unlawfully obtained and, therefore, would need to be excluded from the evidence [considered].” 

White v. Miller, 228 W.Va. 797, 807, 724 S.E.2d 768, 778 (2012).3 It is undisputed that 

respondent provided timely, prehearing notice that the legality of the checkpoint would be 

challenged at the administrative revocation hearing. DMV was, therefore, on notice to be 

prepared at the hearing to provide evidence concerning the manner in which the sobriety 

checkpoint was established and conducted. 

The principal authority in this State concerning sobriety checkpoints is Carte v. Cline, 

194 W.Va. 233, 460 S.E.2d 48 (1995). Carte involved a driver who was stopped at a sobriety 

checkpoint and arrested for operating a motor vehicle while under the influence of alcohol. 

Challenging the administrative revocation of his license, the driver asserted that the State Police 

failed to comply with standard operating procedures when conducting the checkpoint. In Carte, 

this Court upheld the constitutionality of sobriety checkpoints insofar as the checkpoints are 

conducted within non-intrusive, predetermined operational guidelines. In Syllabus Points 1 and 2 

of Carte we held: 

contain this language. Miller v. Chenoweth, 229 W.Va. 114, 117 n.5, 727 S.E.2d 658, 661 n.5 

(2012). However, the Legislature amended the statute in 2010, and restored the language 

requiring a finding that the person was either lawfully arrested or lawfully taken into custody. Id. 

3

We note that in White v. Miller, 228 W.Va. 797, 807, 724 S.E.2d 768, 778 (2012), Mr. 

White’s DUI arrest occurred on July 7, 2007. We therefore applied the version of the statute that 

required a specific finding of whether the driver was either lawfully arrested or lawfully taken 

into custody. 

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Sobriety checkpoint roadblocks are constitutional when conducted within 

predetermined operational guidelines which minimize the intrusion on the 

individual and mitigate the discretion vested in police officers at the scene. 

A person who wishes to challenge official compliance with and adherence 

to sobriety checkpoint operational guidelines shall give written notice of that 

intent to the commissioner of motor vehicles prior to the administrative 

revocation hearing which is conducted pursuant to W.Va. Code § 17C-5A-2. 

As noted above, respondent provided the required advance notice that the sobriety 

checkpoint would be challenged. However, the DMV failed to offer any evidence whatsoever to 

show that the checkpoint was established and conducted pursuant to standardized, predetermined 

guidelines. Instead, the record indicates that during the administrative hearing, the only witness 

offered by the DMV was the investigating officer, Trooper Thorton. He could not present any 

testimony as to what operational guidelines were followed. Therefore, we find that the OAH and 

the circuit court properly rescinded the order that revoked respondent’s driving privileges. 

Moreover, we decide this case in the full light of our recent decision in Dale v. Odum, __ 

W.Va. __, __ S.E.2d __, 2014 WL ------, slip op. (Nos. 12-1403 and 12-1509, Feb. 11, 2014). In 

Odum, we reinstated two license revocations on the basis that the OAH and the circuit court, in 

affirming the OAH, erroneously disregarded evidence that justified the investigatory stops of Mr. 

Odum’s and Mr. Doyle’s respective vehicles. In so holding, we ruled that the evidence in those 

cases established that the investigatory stops were valid, and thus, Mr. Odum and Mr. Doyle 

were “lawfully arrested” in accord with West Virginia Code § 17C-5A-2(f) (2010). However, in 

the present case, the sole basis for the stop of respondent’s vehicle was the sobriety checkpoint, 

and the DMV introduced no evidence whatsoever to establish that the checkpoint was 

“conducted within predetermined operational guidelines which minimize the intrusion on the 

individual and mitigate the discretion vested in police officers at the scene.” Syl. Pt. 1, Carte. 

Therefore, the evidence failed to establish that respondent was lawfully arrested. 

For the foregoing reasons, we conclude that the circuit court did not abuse its discretion 

in affirming the OAH’s decision. We therefore affirm the order of the Circuit Court of Kanawha 

County entered March 5, 2013. 

Affirmed. 

ISSUED: March 28, 2014 

CONCURRED IN BY: 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

DISSENTING: 

Chief Justice Robin Jean Davis 

Justice Allen H. Loughry II 

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