_______________ 

 

 

 

 

____________________________________________________________ 

 

 

 

 

____________________________________________________________ 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

January 2014 Term FILED _______________ June 6, 2014 

released at 3:00 p.m.
 

RORY L. PERRY II, CLERK
 

No. 13-0761 SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA 

STEVEN O. DALE, ACTING COMMISSIONER OF
 

WEST VIRGINIA DIVISION OF MOTOR VEHICLES,
 

Respondent Below, Petitioner
 

v. 

DONALD OAKLAND,
 

Petitioner Below, Respondent
 

Appeal from the Circuit Court of Marshall County
 

The Honorable David W. Hummel, Jr., Judge
 

Civil Action No. 13-CAP-3
 

REVERSED AND REMANDED
 

Submitted: March 26, 2014
 

Filed: June 5, 2014
 

Patrick Morrisey, Esq.	 J. Thomas Madden III, Esq. 

Attorney General	 Madden Law Offices 

Elaine L. Skorich, Esq.	 Glen Dale, West Virginia 

Assistant Attorney General	 Counsel for the Respondent 

DMV – Attorney General’s Office 

Charleston, West Virginia	 Robert G. McCoid, Esq. 

Counsel for the Petitioner	 McCamic, Sacco & McCoid, PLLC 

Wheeling, West Virginia 

Counsel for the Respondent 

The Opinion of the Court was delivered PER CURIAM. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT
 

1. “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) and 

reviews questions of law presented de novo; findings of fact by the administrative officer 

are accorded deference unless the reviewing court believes the findings to be clearly 

wrong.” Syllabus Point 1, Muscatell v. Cline, 196 W. Va. 588, 474 S.E.2d 518 (1996). 

2. “In cases where the circuit court has amended the result before the 

administrative agency, this Court reviews the final order of the circuit court and the 

ultimate disposition by it of an administrative law case under an abuse of discretion 

standard and reviews questions of law de novo.” Syllabus Point 2, Muscatell v. Cline, 196 

W. Va. 588, 474 S.E.2d 518 (1996). 

3. “Where objections were not shown to have been made in the trial 

court, and the matters concerned were not jurisdictional in character, such objections will 

not be considered on appeal.” Syllabus Point 1, State Road Comm’n v. Ferguson, 148 W. 

Va. 742, 137 S.E.2d 206 (1964). 

4. “Upon a challenge by the driver of a motor vehicle to the admission in 

evidence of the results of the horizontal gaze nystagmus test, the police officer who 

administered the test, if asked, should be prepared to give testimony concerning whether 

i 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

he or she was properly trained in conducting the test, and assessing the results, in 

accordance with the protocol sanctioned by the National Highway Traffic Safety 

Administration and whether, and in what manner, he or she complied with that training in 

administering the test to the driver.” Syllabus Point 2, White v. Miller, 228 W. Va. 797, 

724 S.E.2d 768 (2012). 

5. “The ‘clearly wrong’ and the ‘arbitrary and capricious’ standards of 

review are deferential ones which presume an agency’s actions are valid as long as the 

decision is supported by substantial evidence or by a rational basis.” Syllabus Point 3, In 

re Queen, 196 W. Va. 442, 473 S.E.2d 483 (1996). 

6. “There are no provisions in either W. Va. Code, 17C-5-1 (1981), et 

seq., or W. Va. Code, 17C-5A-1 (1981), et seq., that require the administration of a 

chemical sobriety test in order to prove that a motorist was driving under the influence of 

alcohol or drugs for purposes of making an administrative revocation of his driver’s 

license.” Syllabus Point 1, Albrecht v. State, 173 W. Va. 268, 314 S.E.2d 859 (1984). 

ii 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Per Curiam: 

The instant case is before the Court upon the appeal of Petitioner Steven O. 

Dale, Acting Commissioner of the Division of Motor Vehicles (“Commissioner”), from a 

June 15, 2013, order of the Circuit Court of Marshall County, reversing a final order of 

the Office of Administrative Hearings (“OAH”) that upheld the Commissioner’s order 

revoking Respondent Donald Oakland’s privilege to drive a motor vehicle. The 

Commissioner alleges that the circuit court erred in ignoring all of the evidence presented 

that Mr. Oakland drove while under the influence of controlled substances and that Mr. 

Oakland neither objected to nor rebutted the evidence presented by the Commissioner 

during the proceedings below. Conversely, Mr. Oakland alleges that the circuit court 

properly concluded that the hearing examiner was clearly wrong in finding that he was 

under the influence of marijuana at the time the police officer stopped his vehicle. Mr. 

Oakland also alleges that the Commissioner was without jurisdiction to enter an order 

suspending his operator’s privileges in the absence of any accompanying arrest, because 

a lawful arrest is a prerequisite to the issuance of any order of suspension. Upon 

examination of the petition, the response, the submitted appendices, and the arguments of 

counsel, we conclude that, for reasons set forth more fully below, the circuit court’s order 

should be reversed and remanded for reinstatement of the Commissioner’s order revoking 

Mr. Oakland’s license to operate a motor vehicle. 

I.
 

FACTUAL AND PROCEDURAL BACKGROUND
 

1 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

On October 12, 2010, Officer Sean Wilhelm of the Moundsville Police 

Department, the investigating officer in this matter, observed a blue 2001 Ford Mustang 

which failed to stop at a stop sign located at Grant Avenue and 3rd Street in Moundsville, 

Marshall County, West Virginia. Officer Wilhelm initiated a traffic stop of the motor 

vehicle and identified the Respondent Donald Oakland as the driver of the motor vehicle. 

Officer Wilhelm detected a strong odor of marijuana emanating from within Mr. 

Oakland’s vehicle as soon as he got behind the vehicle even before he activated the 

emergency lights. 

Officer Wilhelm immediately placed Mr. Oakland in handcuffs, patted him 

down, and put him in the back of the police cruiser. Officer Wilhelm observed that Mr. 

Oakland’s eyes appeared glassy. Subsequently, Officer Steve Oliver of the Moundsville 

Police Department arrived at the scene of the traffic stop to provide assistance. Officer 

Wilhelm noted that Mr. Oakland appeared steady as he exited the vehicle and as he 

walked to the roadside. 

Mr. Oakland admitted to Officer Wilhelm that he had “a joint” and that he 

smoked marijuana in the car while driving around Moundsville. Officer Wilhelm 

administered a series of field sobriety tests to Mr. Oakland, including the horizontal gaze 

nystagmus (“HGN”) test, the walk-and-turn test, and the one-leg stand test. Mr. Oakland 

passed the HGN test. However, he failed the walk-and turn test because during the 

2
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

instruction phase of the test, he stepped off the line of walk, missed walking in a heel-totoe manner as instructed, raised his arms for balance, and completed an improper turn. 

Additionally, Mr. Oakland failed the one-leg stand test because he used his arms for 

balance and was unable to keep his foot raised off of the ground. After searching Mr. 

Oakland’s car, the officers located a rolled “joint” containing a green leafy substance that 

they deemed to be marijuana, a partially burnt “joint” and an Altoids tin with a green 

leafy substance inside. Officer Wilhelm handcuffed Mr. Oakland and transported him to 

the hospital for the administration of a blood test. Officer Wilhelm waited for the results 

of the blood test before placing Mr. Oakland under arrest for a criminal offense. 

On November 9, 2010, the DMV revoked Mr. Oakland’s license. On 

December 2, 2010, Mr. Oakland requested an administrative hearing before the Office of 

Administrative Hearings (“OAH”). On January 7, 2011, Mr. Oakland appeared at the 

administrative hearing and was represented by counsel; however, Mr. Oakland did not 

testify at the hearing. At the time of the hearing, Officer Wilhelm had not received the 

results of the blood test but the hearing examiner found that they were not necessary 

pursuant to Syl. Pt. 4, Coll v. Cline, 202 W.Va. 599, 505 S.E.2d 662 (1998). The OAH 

upheld the driver’s license revocation due to DUI of controlled substances. Mr. Oakland 

appealed to the Circuit Court of Marshall County which entered a June 15, 2013 order, 

reversing the decision of the OAH finding that “the material findings of fact upon which 

the adverse legal conclusions are based are without any basic foundational support.” The 

circuit court found the hearing examiner’s findings “so fatally flawed that the [c]ourt is at 

3
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

a loss to adequately describe same other than to say that such were arbitrary, capricious, 

an abuse of discretion, and a clearly unwarranted exercise of discretion.” The circuit 

court noted that the record did not establish either officer’s training or ability to identify 

marijuana by sight or scent, and failed to show that either officer was capable of giving a 

field sobriety test. This appeal followed. 

II.
 

STANDARD OF REVIEW
 

With regard to the standard of review, this Court has held that 

[o]n 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) and reviews questions of law 

presented de novo; findings of fact by the administrative 

officer are accorded deference unless the reviewing court 

believes the findings to be clearly wrong. 

Syl. Pt. 1, Muscatell v. Cline, 196 W. Va. 588, 474 S.E.2d 518 (1996). Furthermore, 

[i]n cases where the circuit court has amended the result 

before the administrative agency, this Court reviews the final 

order of the circuit court and the ultimate disposition by it of 

an administrative law case under an abuse of discretion 

standard and reviews questions of law de novo. 

Syl. Pt. 2, Muscatell v. Cline, 196 W. Va. 588, 474 S.E.2d 518 (1996). Guided by these 

standards, we proceed to consider the parties’ arguments. 

III.
 

ANALYSIS
 

4 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The Commissioner alleges that the circuit court erred in ignoring all of the 

evidence presented that Mr. Oakland drove while under the influence of controlled 

substances. Furthermore, the Commissioner asserts that Mr. Oakland neither objected to 

nor rebutted the evidence presented by the Commissioner during the proceedings below. 

The Commissioner contends that because sufficient evidence of DUI was presented 

below, the circuit court’s order reversing the OAH was an abuse of discretion. 

Conversely, Mr. Oakland alleges that the circuit court properly concluded that the hearing 

examiner was clearly wrong in concluding that he was under the influence of marijuana 

at the time the police officer stopped his vehicle. 

In reversing the OAH, the circuit court stated, 

The material findings of fact upon which the adverse legal 

conclusions are based are without any basic foundational 

support. For example, there is not an iota of testimony or 

evidence otherwise as to either of the investigating officer’s 

respective education, training, or experience regarding the 

identification of marijuana by sight and/or scent or how an 

individual who ingested such might appear if he/she were 

“under the influence.” The same can be said for the 

education, training, or experience of either officer regarding 

the administration and interpretation of “series of field 

sobriety tests” relied upon by the Hearing Examiner. If 

anything, the testimony on cross-examination evidenced that 

at least one of the officers was not knowledgeable about the 

proper administration of The Standardized Field Sobriety Test 

(SFST) developed by the U. S. Department of Transportation. 

Moreover, there is absolutely no testimony in the underlying 

record regarding either officer’s credentials whatsoever. 

Accordingly, the findings of fact are both arbitrary and 

capricious as well as an abuse of discretion and a clearly 

unwarranted exercise of discretion. 

5
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

First, Mr. Oakland asserts that there was no evidence that the substance 

obtained by the officers was marijuana. However, the Commissioner contends that 

regardless of whether or not the green leafy substance was field or lab tested and 

regardless of whether or not the officers testified about their education, training, or 

experience regarding identification of marijuana by sight, Mr. Oakland admitted to 

Officer Wilhelm that he had a joint and that he smoked marijuana in the car while driving 

around Moundsville. The hearing examiner addressed this issue in the Final Order: 

Finally, the Petitioner’s Counsel asserted that the Officers 

failed to establish that the green leafy substance found in the 

motor vehicle was marijuana, and that the Petitioner had 

smoked the marijuana prior to operating the motor vehicle on 

the date of the stated offense. However, the Investigating 

Officer testified that he detected the odor of marijuana 

emitting from the vehicle, a partially burned marijuana 

cigarette was located within the motor vehicle and most 

significantly, the Petitioner admitted to the Officers while at 

the scene that he had smoked marijuana. 

(Emphasis added). 

We agree with the Commissioner that the hearing examiner did not need 

the results of field or lab tests to make a determination, based on the totality of the 

evidence, that the green leafy substance was marijuana and that Mr. Oakland had 

ingested the same while driving around Moundsville: Mr. Oakland admitted to both. 

Moreover, Mr. Oakland did not testify at the administrative hearing. Therefore, the 

officers’ testimony remains wholly unrebutted regarding Mr. Oakland’s admissions of 

possession and ingestion. Accordingly, we find that the issue of any field or lab testing 

of the marijuana is irrelevant. 

6
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Furthermore, contrary to the circuit court’s holding, there was sufficient 

evidence in the record for the hearing examiner to make the findings of fact which 

supported the Commissioner’s Order of Revocation because the hearing examiner found 

that the “Investigating Officer detected a strong odor which he identified as marijuana 

emanating from within the Petitioner’s vehicle.” The hearing examiner’s finding is 

supported by Officer Wilhelm’s testimony that 

[a]s soon as I got behind the vehicle, before I even activated 

my lights, I could smell the odor of marijuana. I walked up to 

the vehicle, asked the Defendant [Mr. Oakland] for his 

license, registration, and insurance. His window was down on 

the driver’s side. At that time I detected a strong odor of 

burned marijuana. 

Mr. Oakland’s counsel did not object to this particular testimony. We have 

repeatedly held that “[w]here objections were not shown to have been made in the trial 

court, and the matters concerned were not jurisdictional in character, such objections will 

not be considered on appeal.” Syl. Pt. 1, State Road Comm’n v. Ferguson, 148 W. Va. 

742, 137 S.E.2d 206 (1964). The Commissioner argues that because Mr. Oakland did not 

testify at the administrative hearing, all of Officer Wilhelm’s testimony remains 

unrebutted. 

The hearing examiner found as fact that the “Petitioner admitted to the 

Officers that he smoked marijuana.” This finding is substantiated by Officer Wilhelm’s 

testimony: 

7
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

A. I asked Mr. Oakland if he had any marijuana in the car, 

and he replied yeah. He said, “I had a joint.” 

Q. So when you asked him about marijuana, he replied that he 

did have a joint? 

A. Yes. 

Q. Did he make any statements as to whether he had 

consumed ­

A. Not at that point. 

Q. Not at that point. At any time did he though? 

A. Yes. 

Again, Mr. Oakland’s counsel did not object to this particular testimony, 

and Mr. Oakland did not rebut Officer Wilhelm’s testimony. 

Furthermore, the record reveals that the hearing examiner found that the 

officers conducted a search of “Petitioner’s motor vehicle and located a rolled ‘joint’ 

containing a green leafy substance that they deemed to be marijuana” and a “partially 

burnt ‘joint’ containing a green leafy substance that they believed to be marijuana.” The 

OAH also found that the officers “located an Altoids tin which contained a green leafy 

substance that they concluded was marijuana.” These findings are supported by Officer 

Wilhelm’s testimony: 

Q. What was found? 

A. A [ sic] approximately 4-inch rolled joint, unburned, as 

well as a burned joint approximately a quarter inch long, and 

8 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

an Altoids can that had a green leafy substance in it, had the 

odor of marijuana coming from it. 

Q. You referred to I believe a burned joint and an unburned 

joint. In your experience, what was the substance within the 

joint? 

A. I believed it to be marijuana.... 

Q. What did you believe that green leafy substance to be 

within the Altoids can? 

A. Also marijuana. 

Once again, Mr. Oakland’s counsel did not object to this particular testimony, and Mr. 

Oakland did not rebut Officer Wilhelm’s testimony. 

Mr. Oakland asserts that while he admitted to smoking marijuana, there 

was no evidence offered or otherwise introduced reflecting any admission by Mr. 

Oakland that he was actually under the influence of marijuana while he was driving. He 

contends that of the three field sobriety tests administered to him, he passed one (HGN), 

failed one (the walk-and-turn test), and, as to the third, insufficient evidence exists to 

state whether he passed or failed (the one-leg stand test). While the circuit court 

concluded that there is not an “iota of evidence” regarding either officer’s education, 

training, or experience of either officer regarding the administration and interpretation of 

the field sobriety tests, and that there is “absolutely no testimony in the underlying record 

regarding either officer’s credentials whatsoever”, we find that these conclusions by the 

circuit court are not supported by the record. 

9
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The record reveals that Mr. Oakland received two decisional points on the 

one-leg stand test, and two or more decisional points constitutes failure of that test. 

Officer Wilhelm testified at the revocation hearing that one of the points assessed against 

Mr. Oakland was for raising his arms from his side. Officer Wilhelm also testified that 

Mr. Oakland put his foot down on count twenty-one of thirty on the one leg stand test. 

Mr. Oakland contends that Officer Wilhelm conceded on cross-examination that he could 

not recall the distance that Mr. Oakland raised his arms and that the standard prescribed 

by the National Highway Transportation Safety Administration (“NHTSA”) manual for 

the administration of standardized field sobriety tests allows a subject to raise his arms up 

to six inches without failing that portion of the test. However, our review of the record 

reveals that on cross-examination, Mr. Oakland’s counsel asked Officer Wilhelm, 

“Where did you learn the field sobriety tests? Who taught them to you?” Officer Wilhelm 

replied, “[a]t the West Virginia State Police Academy.” No further inquiry regarding 

Officer Wilhelm’s training was had. 

This Court has addressed the admissibility of field sobriety test results in 

administrative license revocation cases. In syllabus point 2 of White v. Miller, 228 W. 

Va. 797,724 S.E.2d 768 (2012), this Court held that 

[u]pon a challenge by the driver of a motor vehicle to the 

admission in evidence of the results of the horizontal gaze 

nystagmus test, the police officer who administered the test, if 

asked, should be prepared to give testimony concerning 

whether he or she was properly trained in conducting the test, 

10 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

and assessing the results, in accordance with the protocol 

sanctioned by the National Highway Traffic Safety 

Administration and whether, and in what manner, he or she 

complied with that training in administering the test to the 

driver. 

Id. (emphasis added). This Court has recently revisited the administration of field 

sobriety tests in Dale v. McCormick, 231 W. Va. 628, 749 S.E.2d 227 (2013). Therein 

we held that, 

[u]nder the principles set out in White, Trooper Miller 

properly admitted evidence of his administration of the 

horizontal gaze nystagmus test to Ms. McCormick and her 

failure to pass the same. To the extent that Ms. McCormick 

believed Trooper Miller did not perform the test in 

accordance with the law, she was required to question 

Trooper Miller in this area. Moreover, even if Trooper Miller 

failed to satisfy some requirement for administering the 

horizontal gaze nystagmus test, such failure “went to the 

weight of the evidence, not its admissibility.” In re Flood 

Litigation Coal River Watershed, 222 W. Va. 574, 582, 668 

S.E.2d 203, 211 (2008). 

231 W. Va. at 633, 749 S.E.2d at 232. In McCormick, instead of permitting a driver to 

remain silent at hearing regarding the officer’s credentials and administration of the field 

sobriety test then later object to their absence or admissibility, this Court required the 

driver to take an active role in questioning the officer about the administration of those 

tests and credentials. Id. Pursuant to this Court’s decision in McCormick, if Mr. Oakland 

had a serious inquiry or challenge to the quality or quantity of Officer Wilhelm’s 

response about his credentials, the onus was on Mr. Oakland to inquire further. 

11
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Accordingly, the circuit court erred in concluding that there was “absolutely no testimony 

in the underlying record regarding either officers’ credentials whatsoever.” 

Mr. Oakland asserts that nothing in White or Miller states that the officer 

may simply state that an operator has failed a standardized field sobriety test without also 

relating how such failure constitutes proof of the operator’s impairment. Mr. Oakland 

contends that in the matter sub judice, arresting Officer Wilhelm neglected to state how, 

exactly, failing a field sobriety test constitutes evidence of being under the influence of 

drugs. The record reveals that the OAH hearing examiner addressed Mr. Oakland’s 

argument about the admissibility of the field sobriety tests and the weight which the 

hearing examiner gave the tests: 

Although the Petitioner’s Counsel attempted to argue that the 

results of the field sobriety tests should not be considered in 

this matter since these test [ sic] were designed to be used by 

law enforcement officers as a guide to determine whether a 

driver is under the influence of alcohol, and not controlled 

substances or drugs, these tests are indicators of impairment. 

The battery of standardized field sobriety tests, which were 

developed by the National Highway Traffic Safety 

Administration after extensive research, are “divided 

attention” tests that are easily performed by most unimpaired 

people. They merely require a suspect to listen and follow 

instructions while performing simple physical movements. 

Impaired persons have difficulty with tasks requiring their 

attention to be divided between simple mental and physical 

exercises. 

“The ‘clearly wrong’ and the ‘arbitrary and capricious’ standards of review 

are deferential ones which presume an agency’s actions are valid as long as the decision 

12
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

is supported by substantial evidence or by a rational basis.” Syllabus Point 3, In re 

Queen, 196 W. Va. 442, 473 S.E.2d 483 (1996). We find that the hearing examiner’s 

decision was supported by the substantial evidence presented, and the circuit court 

abused its discretion in substituting its judgment for that of the fact finder below. It is 

unrebutted that Mr. Oakland, who was operating his motor vehicle on the streets of 

Moundsville, West Virginia, admitted to Officer Wilhelm that he had smoked marijuana 

while driving around town. Further, it is unrebutted that Mr. Oakland ignored stopping at 

a stop sign and had glassy eyes. The circuit court failed to address this other indicia of 

impairment in its order reversing the OAH’s order upholding Mr. Oakland’s license 

revocation. Even if we assumed for the sake of argument that the results of the field 

sobriety tests were inadmissible to prove that Mr. Oakland was under the influence of 

marijuana, sufficient evidence exists in this case to substantiate that Respondent was 

under the influence, as he admitted to smoking marijuana, had glassy eyes, and he rollstopped through a stop sign. 

Lastly, Mr. Oakland alleges that the Commissioner was without jurisdiction 

to enter an order suspending his operator’s privileges in the absence of an accompanying 

arrest, because a lawful arrest is a prerequisite to the issuance of any order of 

suspension.1 The record indicates that Officer Wilhelm waited for the results of the 

1 Although the circuit court’s Order reversing the OAH decision did not address the “nonarrest” issue, the record reveals that Mr. Oakland raised it at the OAH hearing and, again, 

in both his Petition for Judicial Review and his Brief and Memorandum of Law seeking 

(continued . . .) 

13
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

blood test before placing Mr. Oakland under arrest for a criminal offense and that Mr. 

Oakland has never been arrested for any offense related to the events of October 12, 

2010. 

Mr. Oakland contends that W. Va. Code § 17C-5A-1(c) mandates that a 

lawful arrest occur. This Code section provides, in pertinent part, that 

[i]f upon examination of the written statement of the officer 

and the test results described in subsection (b) of this section, 

the commissioner shall determine that a person was arrested 

for an offense described in [W. Va. Code § 17C-5-2]. . . and 

that. . . at the time the person was arrested he or she was 

under the influence of. . . controlled substances or drugs, the 

commissioner shall make and enter an order revoking the 

person’s license to operate a motor vehicle in this state. . . . 

West Virginia Code § l7C-5A-1(c) (2008). Mr. Oakland contends that other relevant 

sections of the Code make clear that the Legislature contemplated that an actual arrest for 

driving under the influence of alcohol or drugs is a mandatory prerequisite to the issuance 

of any order of suspension. See, e.g.: W. Va. Code § 17C-5-4(c) (addressing a secondary 

chemical test “incidental to a lawful arrest” administered at the direction of the “arresting 

law-enforcement officer”) and (g) (speaking to contingency when “arresting officer” 

lacks training in administration of secondary chemical test); § 17C-5-7(a) (addressing 

appellate review by the circuit court of OAH’s decision. The circuit court’s order notes 

that Mr. Oakland raised other meritorious issues in favor of reversing OAH’s order in his 

petition for review, which were characterized as “holding water,” but the court felt it 

unnecessary to address them given that it believed that the reason for reversal stated in its 

Order was sufficient standing alone. 

14
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

officer’s duties following “arrest” when the person “under arrest” refuses to submit to a 

secondary chemical test); § 17C-5-8 (noting that blood, breath or urine sample results are 

admissible if taken within two hours “from and after the time of arrest”); § 17C-5-9 

(codifying right of person “lawfully arrested” to demand a chemical test of her or his 

blood, breath or urine). 

However, we find Mr. Oakland’s argument misplaced. West Virginia Code 

§ 17C-5A-2(f) (2010), the statute in effect on the date of the incident, makes it clear that 

the following elements were a mandatory prerequisite to the OAH upholding an order of 

suspension: (1) that there was a lawful “arrest” of the driver; or (2) that the driver “was 

lawfully taken into custody for the purpose of administering a secondary test[.]” 

(emphasis added).2 The record before us reveals that Officer Wilhelm stopped Mr. 

2 West Virginia Code § 17C-5A-2(f) (2010) provided that, 

(f) In the case of a hearing in which a person is accused of 

driving a motor vehicle while under the influence of alcohol, 

controlled substances or drugs, or accused of driving a motor 

vehicle while having an alcohol concentration in the person’s 

blood of eight hundredths of one percent or more, by weight, 

or accused of driving a motor vehicle while under the age of 

twenty-one years with an alcohol concentration in his or her 

blood of two hundredths of one percent or more, by weight, 

but less than eight hundredths of one percent, by weight, the 

Office of Administrative Hearings shall make specific 

findings as to: (1) Whether the investigating law-enforcement 

officer had reasonable grounds to believe the person to have 

been driving while under the influence of alcohol, controlled 

substances or drugs, or while having an alcohol concentration 

in the person’s blood of eight hundredths of one percent or 

(continued . . .) 

15
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Oakland’s vehicle after he observed him roll through a stop sign. Mr. Oakland, who had 

glassy eyes, then not only admitted to smoking marijuana, but failed two of the three field 

sobriety tests administered to him. Officer Wilhelm accordingly handcuffed Mr. 

Oakland, placed him in his police cruiser, and transported him to the hospital for the 

purpose of administering the blood test. 

Mr. Oakland contends that the Moundsville Police Department has 

designated “breath” as its test of choice, and therefore, Officer Wilhelm, “the lawenforcement officer” “employ[ed]” by that agency, was without authority to require Mr. 

Oakland to submit to a blood test under threat of suspension of his license by handediting the implied consent form, to take him into custody to do so, and that he otherwise 

lacked any authority to engage in an ad hoc modification/designation of Moundsville’s 

more, by weight, or to have been driving a motor vehicle 

while under the age of twenty-one years with an alcohol 

concentration in his or her blood of two hundredths of one 

percent or more, by weight, but less than eight hundredths of 

one percent, by weight; (2) whether the person was lawfully 

placed under arrest for an offense involving driving under the 

influence of alcohol, controlled substances or drugs, or was 

lawfully taken into custody for the purpose of administering a 

secondary test: Provided, That this element shall be waived in 

cases where no arrest occurred due to driver incapacitation; 

(3) whether the person committed an offense involving 

driving under the influence of alcohol, controlled substances 

or drugs, or was lawfully taken into custody for the purpose 

of administering a secondary test; and (4) whether the tests, if 

any, were administered in accordance with the provisions of 

this article and article five of this chapter. 

16
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

designated secondary test. Mr. Oakland maintains that because the secondary chemical 

test Wilhelm required Respondent to take was not a legal one, he cannot have been 

lawfully been taken into custody for purposes of administering a secondary chemical test 

within the meaning of W. Va. Code § 17C-5A-2(f). We disagree. There is nothing in our 

statutory law that prevented Officer Wilhelm from administering a blood test to 

determine if Mr. Oakland was impaired by marijuana. West Virginia Code § 17C-5-4 

(2010) provides that 

(a) Any person who drives a motor vehicle in this state is 

considered to have given his or her consent by the 

operation of the motor vehicle to a preliminary breath 

analysis and a secondary chemical test of either his or her 

blood, breath or urine for the purpose of determining the 

alcoholic content of his or her blood. 

(Emphasis added). Pursuant to West Virginia Code § 17C-5-4, there was implied consent 

to a secondary chemical test. For all these reasons, we conclude that Mr. Oakland was 

lawfully taken into custody for purposes of administering a secondary test. 

Finally, the results of the blood test were never admitted during the 

proceedings below. Pursuant to syllabus point 1 of Albrecht v. State, 173 W. Va. 268, 

314 S.E.2d 859 (1984), 

[t]here are no provisions in either W. Va. Code, 17C-5-1 

(1981), et seq., or W. Va. Code, 17C-5A-1 (1981), et seq., 

that require the administration of a chemical sobriety test in 

order to prove that a motorist was driving under the influence 

of alcohol or drugs for purposes of making an administrative 

revocation of his driver’s license. 

17
 
 

 

 

 

 

 

 

 

 

In view of the driving behavior of Mr. Oakland observed by Officer Wilhelm, including 

the failure by Mr. Oakland to lawfully stop at a stop sign, Officer Wilhelm’s other 

observations, the results of the field sobriety tests, and Mr. Oakland’s admitted use of an 

illicit intoxicating substance, we conclude that the circuit court abused its discretion in 

reversing the OAH. 

IV.
 

CONCLUSION
 

For the foregoing reasons, we reverse the June 15, 2013, order of the 

Circuit Court of Marshall County and remand this matter for reinstatement of the 

Commissioner’s order revoking Mr. Oakland’s license to operate a motor vehicle. 

Reversed and Remanded. 

18