IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2023 Term

_______________

No. 21-0371

_______________

CLINT CASTO,

Petitioner Below, Petitioner,

V.

EVERETT FRAZIER, COMMISSIONER,

WEST VIRGINIA

DIVISION OF MOTOR VEHICLES,

Respondent Below, Respondent.

_____________________________________________

Appeal from the Circuit Court of Kanawha County

The Honorable Maryclaire Akers, Judge

Civil Action No. 20-AA-86

REVERSED AND REMANDED

_____________________________________________

Submitted: April 18, 2023

Filed: June 15, 2023

Jeremy B. Cooper, Esq. Patrick Morrisey, Esq.

Blackwater Law PLLC Attorney General

Aspinwall, Pennsylvania Elaine L. Skorich, Esq.

Attorney for Petitioner Assistant Attorney General

Janet E. James, Esq.

Assistant Attorney General

Charleston, West Virginia

Attorneys for Respondent

JUSTICE BUNN delivered the Opinion of the Court.

FILED

June 15, 2023

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
JUSTICE ARMSTEAD concurs, in part, and dissents, in part, and reserves the right to 

file a separate opinion.
i

SYLLABUS BY THE COURT

1. “Upon judicial review of a contested case under the West Virginia 

Administrative Procedure Act, Chapter 29A, Article 5, Section 4(g), the circuit court may 

affirm the order or decision of the agency or remand the case for further proceedings. The 

circuit court shall reverse, vacate or modify the order or decision of the agency if the 

substantial rights of the petitioner or petitioners have been prejudiced because the 

administrative findings, inferences, conclusions, decisions or order are: ‘(1) In violation of 

constitutional or statutory provisions; or (2) In excess of the statutory authority or 

jurisdiction of the agency; or (3) Made upon unlawful procedures; or (4) Affected by other 

error of law; or (5) Clearly wrong in view of the reliable, probative and substantial evidence 

on the whole record; or (6) Arbitrary or capricious or characterized by abuse of discretion 

or clearly unwarranted exercise of discretion.’” Syllabus point 2, Shepherdstown Volunteer 

Fire Department v. State ex rel. West Virginia Human Rights Commission, 172 W. Va. 

627, 309 S.E.2d 342 (1983).

2. “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[(g)] 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).
ii

3. “Some of the rules of statutory construction that we have utilized are: 

Effect should be given to the spirit, purpose and intent of the lawmakers without limiting 

the interpretation in such a manner as to defeat the underlying purpose of the statute. Each 

word of a statute should be given some effect and a statute must be construed in accordance 

with the import of its language. Undefined words and terms used in a legislative enactment 

will be given their common, ordinary and accepted meaning.” Syllabus point 6, State ex 

rel. Cohen v. Manchin, 175 W. Va. 525, 336 S.E.2d 171 (1984).

4. A person is “under the influence” if the person (1) consumed, used, 

took, or ingested alcohol, controlled substances, or drugs and (2) the alcohol, controlled 

substances, drugs, or any combination thereof impaired the person’s ability to operate a 

motor vehicle with ordinary care.
1

BUNN, Justice:

Petitioner Clint Casto appeals from an order entered April 9, 2021, by the 

Circuit Court of Kanawha County that affirmed an order entered by the Office of 

Administrative Hearings (“OAH”). The OAH’s order upheld the administrative revocation 

of Mr. Casto’s driver’s license for driving under the influence of controlled substances or 

drugs. On appeal to this Court, Mr. Casto argues that the evidence is not sufficient to 

support a finding that he was driving under the influence. Respondent, Everett Frazier,1

Commissioner of the West Virginia Division of Motor Vehicles (“DMV”), contends that 

Mr. Casto’s license revocation was proper.

We conclude that the evidence in this case is not sufficient to support Mr. 

Casto’s license revocation. Therefore, we reverse the circuit court’s April 9, 2021 order 

affirming the OAH’s order that upheld the revocation and remand this case for an order 

rescinding the DMV’s revocation order and reinstating Mr. Casto’s driver’s license.

1 During the pendency of this case, the DMV Commissioner has changed; 

thus, “the necessary substitution of parties [has been made] pursuant to Rule 41(c) of the 

West Virginia Rules of Appellate Procedure.” Frazier v. Braley, No. 20-0726, 2022 WL 

633848, at *1 n.1 (W. Va. Mar. 4, 2022) (memorandum decision).
2

I.

FACTUAL AND PROCEDURAL HISTORY

At approximately 3:00 a.m. on April 13, 2019, Patrolman R.C. Montagu of 

the Charleston Police Department observed Mr. Casto parking diagonally across multiple 

spaces in a convenience store parking lot. Patrolman Montagu reported that Mr. Casto 

appeared unsteady upon exiting his vehicle, left the vehicle running while he went into the 

store, looked around, and exited the store without making a purchase. When Mr. Casto left 

the store, Patrolman Montagu approached him and began an investigation to determine 

whether Mr. Casto had been driving under the influence of alcohol, controlled substances, 

and/or drugs. Mr. Casto denied having ingested any of these substances, and his 

preliminary breath test at the scene showed no presence of alcohol in his system. Patrolman 

Montagu noted that Mr. Casto had bloodshot eyes and administered three field sobriety 

tests. There was no evidence of impairment from the horizontal gaze nystagmus test, but 

Mr. Casto performed the one-leg stand test improperly and incorrectly estimated twentyfive seconds to be thirty seconds, and he also had difficulties with the walk-and-turn test.

Patrolman Montagu, who had been trained to detect drug use, administered 

two additional field tests and reported that Mr. Casto’s performance on these tests 

“indicated a high probability of impairment.” Patrolman Montagu’s report regarding his 

encounter with Mr. Casto does not state whether he found any evidence of drug use or 

consumption on Mr. Casto or in his vehicle. Patrolman Montagu placed Mr. Casto under 

arrest for driving under the influence, then asked him if he would submit to a blood test, as 
3

the secondary chemical test. Mr. Casto agreed to submit to a blood test and also asked for 

a blood test himself. Mr. Casto’s blood sample was taken shortly after his arrest, and the 

West Virginia State Police Forensic Laboratory analyzed it. Mr. Casto’s blood sample was 

subjected to a ninety-panel screen, and it was negative for all tested substances.

Despite the negative blood test, the DMV administratively revoked Mr. 

Casto’s driver’s license for driving under the influence of controlled substances or drugs

based upon the results of the field sobriety tests and Patrolman Montagu’s observations 

during the traffic stop. Mr. Casto appealed to the OAH. During the hearing before the OAH, 

Mr. Casto testified that on the night of his arrest, he had just finished working his second 

job of the day,

2 that he had a right leg injury that might have affected his performance on 

the field sobriety tests, and that he was wearing “steel toed tennis shoes” that might have

also affected his performance on the tests. The record is unclear as to whether Mr. Casto 

told Patrolman Montagu about these purported issues on the night of the arrest. The OAH 

upheld the DMV’s revocation. Mr. Casto then appealed to the Circuit Court of Kanawha 

County, which also upheld his license revocation by order entered April 9, 2021. Mr. Casto 

now appeals to this Court.

2 Mr. Casto worked for a ticket vendor during the day and drove for a 

passenger transportation service in the evening hours.
4

II.

STANDARD OF REVIEW

This appeal is before the Court upon Mr. Casto’s unsuccessful appeals to the 

OAH and the circuit court. As an administrative appeal, the West Virginia Administrative 

Procedures Act governs the scope of judicial review by the circuit court and this Court. See 

generally W. Va. Code § 29A-5-4. Regarding the nature of the circuit court’s review, we 

have held that,

[u]pon judicial review of a contested case under the 

West Virginia Administrative Procedure Act, Chapter 29A, 

Article 5, Section 4(g), the circuit court may affirm the order 

or decision of the agency or remand the case for further 

proceedings. The circuit court shall reverse, vacate or modify 

the order or decision of the agency if the substantial rights of 

the petitioner or petitioners have been prejudiced because the 

administrative findings, inferences, conclusions, decisions or 

order are: “(1) In violation of constitutional or statutory 

provisions; or (2) In excess of the statutory authority or 

jurisdiction of the agency; or (3) Made upon unlawful 

procedures; or (4) Affected by other error of law; or (5) Clearly 

wrong in view of the reliable, probative and substantial 

evidence on the whole record; or (6) Arbitrary or capricious or 

characterized by abuse of discretion or clearly unwarranted 

exercise of discretion.”

Syl. pt. 2, Shepherdstown Volunteer Fire Dep’t v. State ex rel. W. Va. Hum. Rts. Comm’n, 

172 W. Va. 627, 309 S.E.2d 342 (1983). This same standard also applies to this Court’s 

review:

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[(g)] and reviews questions of law 

presented de novo; findings of fact by the administrative 
5

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). Finally, to the extent 

we must review the circuit court’s construction and application of the governing statutes, 

we review those determinations de novo. See Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 

W. Va. 138, 459 S.E.2d 415 (1995) (“Where the issue on an appeal from the circuit court 

is clearly a question of law or involving an interpretation of a statute, we apply a de novo

standard of review.”).

III.

DISCUSSION

Mr. Casto assigns two errors on appeal to this Court: (1) the circuit court 

erred by upholding his license revocation because there was insufficient evidence to prove 

by a preponderance of the evidence that he had ingested alcohol, drugs, and/or controlled 

substances and (2) his revocation order should be vacated because this case is still pending 

after the OAH’s dissolution.3 The DMV responds that neither of these assigned errors 

warrants reversal of the circuit court’s order. We disagree.

Whether the DMV properly revoked Mr. Casto’s driver’s license for driving 

under the influence of alcohol, controlled substances, or drugs is governed by statute and

3 Because our resolution of Mr. Casto’s first assignment of error is 

dispositive, it is not necessary for us to address the second.
6

guided by our rules of statutory construction. “The primary object in construing a statute 

is to ascertain and give effect to the intent of the Legislature.” Syl. pt. 1, Smith v. State 

Workmen’s Comp. Comm’r, 159 W. Va. 108, 219 S.E.2d 361 (1975). We have summarized 

several other principles that govern our consideration of statutes as follows:

Some of the rules of statutory construction that we have 

utilized are: Effect should be given to the spirit, purpose and 

intent of the lawmakers without limiting the interpretation in 

such a manner as to defeat the underlying purpose of the 

statute. Each word of a statute should be given some effect and 

a statute must be construed in accordance with the import of its 

language. Undefined words and terms used in a legislative 

enactment will be given their common, ordinary and accepted 

meaning.

Syl. pt. 6, State ex rel. Cohen v. Manchin, 175 W. Va. 525, 336 S.E.2d 171 (1984).

Moreover, “[i]t is always presumed that the legislature will not enact a meaningless or 

useless statute.” Syl. pt. 4, State ex rel Hardesty v. Aracoma-Chief Logan No. 4523, 

Veterans of Foreign Wars of the U.S., Inc., 147 W. Va. 645, 129 S.E.2d 921 (1963).

Therefore, “[a] cardinal rule of statutory construction is that significance and effect must, 

if possible, be given to every section, clause, word or part of the statute.” Syl. pt. 3, 

Meadows v. Wal-Mart Stores, Inc., 207 W. Va. 203, 530 S.E.2d 676 (1999).

Pursuant to the statute that was in effect at the time of Mr. Casto’s license 

revocation, the DMV could administratively revoke a driver’s license if he drove under 

conditions that would have constituted the crime of driving under the influence of alcohol, 

controlled substances, or drugs:
7

If, upon examination of the written statement of the 

officer and the tests [sic] results described in subsection (b) of 

this section, the commissioner determines that a person 

committed an offense described in section two [§ 17C-5-2], 

article five of this chapter . . . and that the results of any 

secondary test or tests indicate that at the time the test or tests 

were administered the person had, in his or her blood, an 

alcohol concentration of eight hundredths of one percent or 

more, by weight, or at the time the person committed the 

offense he or she was under the influence of alcohol, controlled 

substances or drugs, the commissioner shall make and enter an 

order revoking or suspending the person’s license to operate a 

motor vehicle in this State.

W. Va. Code § 17C-5A-1(c) (eff. 2008) (emphasis added).

4 The criminal statute that was 

in effect at the time of the events at issue in this case and that prohibited Mr. Casto’s alleged 

misconduct provides that

[a]ny person who drives a vehicle in this state: (i) while 

he or she is in an impaired state or (ii) while he or she is in an 

impaired state but has an alcohol concentration in his or her 

blood of less than fifteen hundredths of one percent by weight, 

is guilty of a misdemeanor[.]

W. Va. Code § 17C-5-2(e) (eff. 2016) (emphasis added).5

4 The recent statutory amendments to the driver’s license revocation 

procedure now require a court order finding that a driver has violated specified driving 

laws or a driver’s conviction of driving under the influence to support a driver’s license 

revocation by the DMV. See generally W. Va. Code § 17C-5A-1a (eff. 2020).

5 The Legislature has also twice amended this statute, but the specific 

language applicable to our decision of this case has not changed. See W. Va. Code § 17C5-2(e) (eff. 2020); W. Va. Code § 17C-5-2(e) (eff. 2023).
8

In denying Mr. Casto’s appeals below, both the OAH and the DMV 

determined that because Mr. Casto had driven under the influence of controlled substances 

or drugs, his license revocation was proper. See W. Va. Code § 17C-5A-1(c). Two 

questions must be answered to determine if Mr. Casto’s driver’s license revocation should 

be upheld: (1) was Mr. Casto driving and (2) if Mr. Casto was driving, was he under the 

influence of controlled substances or drugs while he was driving. See id.

To answer the first query, the parties do not dispute that Mr. Casto operated 

a motor vehicle shortly before Patrolman Montagu began his investigation. The record 

demonstrates that Patrolman Montagu saw Mr. Casto drive into the convenience store lot 

and park, and Mr. Casto admitted that he drove following the end of his second work shift 

of the day.

However, the parties disagree on the answer to the second inquiry: whether 

Mr. Casto was under the influence of controlled substances or drugs while driving. The 

criminal statute that forms the basis for Mr. Casto’s administrative license revocation 

requires that the individual “drives a vehicle in this [S]tate . . . while he or she is in an 

impaired state.” W. Va. Code § 17C-5-2(e). The statutory definition of “impaired state,” to 

which § 17C-5-2(e) refers, provides:

(1) “Impaired State” means a person:

(A) Is under the influence of alcohol;

(B) Is under the influence of any controlled substance;
9

(C) Is under the influence of any other drug or inhalant 

substance;

(D) Is under the combined influence of alcohol and any 

controlled substance or any other drug; or

(E) Has an alcohol concentration in his or her blood of 

eight hundredths of one percent or more, by weight.

W. Va. Code § 17C-5-2(a).6 While “impaired state” contemplates a driver being “under the 

influence” of one or more of the specified substances, the term “under the influence” is not 

explicitly defined. See id. Therefore, we consider the commonly accepted usage of this 

phrase to determine its meaning. See Syl. pt. 6, in part, Cohen, 175 W. Va. 525, 336 S.E.2d 

171.

6 This statutory language also remains the same following two recent 

amendments to this section. See W. Va. Code § 17C-5-2(a) (eff. 2020); W. Va. Code 

§ 17C-5-2(a) (eff. 2023).
10

Generally, “under the influence” contemplates that a person ingested,7

consumed,8 took,9 or used10 a particular substance, such as alcohol, drugs, or controlled 

7 See, e.g., State v. Taylor, 966 N.W.2d 510, 518 (Neb. 2021) (“[T]he phrase 

‘under the influence of alcoholic liquor or of any drug’ requires the ingestion of alcohol or 

drugs in an amount sufficient to impair to any appreciable degree the driver’s ability to 

operate a motor vehicle in a prudent and cautious manner.” (emphasis added; citation 

omitted)); Cotter v. State, 738 P.2d 506, 508 (Nev. 1987) (per curiam) (concluding that 

meaning of “under the influence” “embraces only those individuals who ingest

[enumerated] substances . . . to a degree that renders them incapable of safely driving or 

exercising actual physical control of the vehicle” (emphasis added; quotations and citation 

omitted)).

8 See, e.g., State v. Souther, 169 A.3d 927, 928 n.1 (Me. 2017) (“[A] person 

is under the influence if the person’s physical or mental faculties are impaired however 

slightly or to any extent by the substance or substances that the person consumed.”

(emphasis added; quotations and citation omitted)); People v. Bowden, No. 357976, 2022 

WL 16859166, at *7, ___ N.W.2d ___, ___ (Mich. Ct. App. Nov. 10, 2022) (“To prove a 

person was ‘under the influence’ of alcoholic liquor, a controlled substance, or other 

intoxicating substance, the prosecution must prove that defendant’s ability to drive was 

substantially and materially affected by consumption of the relevant substance.” (emphasis 

added; quotations and citations omitted)).

9 See, e.g., State v. Parisi, 831 S.E.2d 236, 243-44 (N.C. 2019) (“[A] person 

is under the influence of intoxicating liquor or narcotic drugs . . . when he has drunk a 

sufficient quantity of intoxicating beverages or taken a sufficient amount of narcotic drugs 

to cause him to lose the normal control of his bodily or mental faculties, or both, to such 

an extent that there is an appreciable impairment of either or both of those faculties.”

(emphasis added; quotations and citation omitted)); Spreeman v. State, 278 P.3d 1159, 

1164 (Wyo. 2012) (“[T]he phrase ‘under the influence of intoxicating liquor’ means that a 

person has taken into his stomach a sufficient quantity of intoxicating liquor so as to 

deprive him of the normal control of his bodily or mental faculties.” (emphasis added;

quotations and citation omitted)).

10 See, e.g., People v Bui, 103 Cal. Rptr. 2d 908, 913 (Ct. App. 2001) (“A 

person is under the influence . . . when, as a result of using methamphetamine, his physical 

or mental abilities are impaired to such a degree that he no longer has the ability to drive 

his vehicle with the caution characteristic of a sober person of ordinary prudence under the 

same or similar circumstances.” (emphasis added)); State v. Stiles, 998 P.2d 703, 708 (Or. 

Ct. App. 2000) (“[T]he phrase ‘being under the influence of a controlled substance’ . . . 

necessarily encompasses all cases in which the state contends that the defendant’s use of a 
11

substances, and that substance has impaired the person’s ability to operate a motor vehicle.

While this Court has not defined the term, many other courts have used the plain and 

ordinary meaning to apply similar statutes. For example, the Court of Appeals of South 

Carolina has said that “[a] driver is ‘under the influence’ when ingestion of drugs or alcohol 

results in the impairment of the driver’s faculties, impairs the driver’s ability to operate the 

vehicle with reasonable care, or impairs the driver’s ability to drive as a prudent driver 

would operate the vehicle.” Kennedy v. Griffin, 595 S.E.2d 248, 251 (S.C. Ct. App. 2004) 

(citing S.C. Code Ann. § 56-5-2930). The Appellate Court of Illinois defines “under the 

influence” similarly: “A defendant is under the influence when, as a result of consuming 

alcohol or any other intoxicating substance, his mental or physical faculties are so impaired 

as to reduce his ability to think and act with ordinary care.” People v. Halerewicz, 2 N.E.3d 

333, 338-39 (Ill. App. Ct. 2013) (referencing 625 Ill. Comp. Stat. 5/11-501(a)(2); 

quotations and citation omitted). Likewise, the Court of Appeals of Georgia recognizes that 

the operator of a motor vehicle is under the influence of alcohol “‘to the extent it is less 

safe for the person to drive’” a motor vehicle than if he were not so affected. Moss v. State, 

390 S.E.2d 268, 269 (Ga. Ct. App. 1990) (quoting Ga. Code Ann. § 40-6-391(a)(1)).11

Applying the plain language of the statute and consistent with this persuasive authority, we 

controlled substance materially contributed to culpable impairment.” (emphasis added; 

citation omitted)).

11 See also Bloomfield Twp. v. Kane, 839 N.W.2d 505, 514 n.10 (Mich. Ct. 

App. 2013) (per curiam) (interpreting “under the influence” to “mean[] that the defendant 

was substantially deprived of normal control or clarity of mind” (quotations and citation 

omitted)).
12

now hold that a person is “under the influence” if the person (1) consumed, used, took, or 

ingested alcohol, controlled substances, or drugs and (2) the alcohol, controlled substances, 

drugs, or any combination thereof impaired the person’s ability to operate a motor vehicle 

with ordinary care.

Considering the facts of this case in light of our holding, we conclude that 

the record does not support the OAH’s finding that Mr. Casto drove a motor vehicle while 

under the influence of drugs or controlled substances or the circuit court’s subsequent order 

affirming the OAH’s ruling.12 In upholding Mr. Casto’s license revocation, the OAH 

repeatedly recognized that a determination of whether he drove under the influence 

requires “all evidence is to be examined in toto.” The OAH then discounted the results of 

Mr. Casto’s secondary chemical test13 because it construed the secondary chemical test 

statute as applying predominantly to tests designed to detect alcohol and not to those 

identifying evidence of drug use. See W. Va. Code § 17C-5-8. While this statute provides 

specific percentages for the consideration of alcohol evidence, it also lists the various drugs 

and controlled substances for which a chemical analysis of the blood should test. See

12 The parties do not contend, and we need not consider, whether Mr. Casto 

drove while under the influence of alcohol because the DMV’s order of revocation is 

specifically for “driving . . . while under the influence of controlled substances or drugs,”

not alcohol.

13 The secondary chemical test in this case was the blood test that was 

requested by both Patrolman Montagu and Mr. Casto. The West Virginia State Police tested 

Mr. Casto’s blood sample and found it to be negative for all of the substances on its ninetypanel drug screen.
13

W. Va. Code §§ 17C-5-8(d)(1) to -(10). Therefore, the OAH should not have discounted 

Mr. Casto’s blood test results solely based on this statute.

The OAH also determined Mr. Casto was not a credible witness and 

discounted his testimony at the administrative hearing. Mr. Casto denied driving under the 

influence when he informed Patrolman Montagu that he had not used drugs or controlled 

substances during the patrolman’s investigation, and Mr. Casto reiterated this denial when 

he testified during the hearing. In presenting his testimony, Mr. Casto also engaged in 

several rambling narratives that did not directly address whether he had driven under the 

influence of controlled substances or drugs. Relying on Webb v. West Virginia Board of 

Medicine, 212 W. Va. 149, 569 S.E.2d 225 (2002) (per curiam), the circuit court correctly 

noted that “[t]he Hearing Examiner’s credibility determinations are entitled to deference 

by this Court.”14

Despite the OAH’s refusal to consider Mr. Casto’s negative blood test results 

and its credibility determinations, these rulings do not lead to the conclusion that the DMV 

carried its burden to prove that Mr. Casto drove while under the influence of drugs. Rather, 

when examining the totality of the evidence, or lack of evidence in this case, we find that 

14 See Webb v. W. Va. Bd. of Med., 212 W. Va. 149, 156, 569 S.E.2d 225, 

232 (2002) (per curiam) (“This Court has recognized that credibility determinations by the 

finder of fact in an administrative proceeding are binding unless patently without basis in 

the record.” (quotations and citation omitted)).
14

both the OAH and the circuit court erred in finding that Mr. Casto drove under the 

influence. The OAH cited Syllabus point 2 of Albrecht v. State in support of its decision to 

uphold Mr. Casto’s license revocation:

Where there is evidence reflecting that a driver was 

operating a motor vehicle upon a public street or highway, 

exhibited symptoms of intoxication, and had consumed

alcoholic beverages, this is sufficient proof under a 

preponderance of the evidence standard to warrant the 

administrative revocation of his driver’s license for driving 

under the influence of alcohol.

173 W. Va. 268, 314 S.E.2d 859 (1984) (emphasis added). The circuit court also quoted 

this holding and additionally relied on Syllabus point 3 of White v. Miller, 228 W. Va. 797, 

724 S.E.2d 768 (2012), to affirm the OAH’s order upholding Mr. Casto’s license 

revocation:

A driver’s license to operate a motor vehicle in this State 

cannot be administratively revoked solely and exclusively on 

the results of the driver’s horizontal gaze nystagmus test. 

Rather, additional evidence in conjunction with the horizontal 

gaze nystagmus test is required for revocation: for example, the 

results of other field sobriety tests; the results of a secondary 

chemical test; whether the vehicle was weaving on the 

highway; whether the driver admitted consuming an alcoholic 

beverage; whether the driver exhibited glassy eyes or slurred 

speech; and/or whether the odor of an alcoholic beverage was 

detected.

(Emphasis added). Both of these authorities require a finding that a driver actually used or 

ingested a substance that would impair his ability to operate a motor vehicle, either from 

actual consumption, as noted in Albrecht, or from an admission of consumption or an odor, 

as referenced in White. In other words, the evidence to support a license revocation for 

driving under the influence of drugs or controlled substances must show both ingestion of 
15

the referenced substances and that the driver was impaired as a result of such use. See 

generally W. Va. Code § 17C-5-2(a)(1) (defining “impaired state”). Here, though, the 

evidence does not establish that Mr. Casto used or consumed controlled substances or 

drugs.

Unlike the majority of cases considered by this Court in which the DMV has 

revoked a driver’s license for driving under the influence of drugs or controlled substances,

the DMV has provided no evidence that Mr. Casto ingested or used these substances. Mr. 

Casto did not admit to having used drugs or controlled substances;

15 Patrolman Montagu 

did not detect an odor indicating drug use when he investigated Mr. Casto;

16 and Patrolman 

15 See, e.g., Frazier v. Null, 246 W. Va. 450, 452, 874 S.E.2d 252, 254 (2022) 

(driver “admitted to smoking a bowl of marijuana” (emphasis added)); Frazier v. Howie, 

No. 20-0364, 2022 WL 4355565, at *1 (W. Va. Sept. 20, 2022) (memorandum decision) 

(driver “admitted to ingesting ‘several pills earlier in the day’” (emphasis added)); Frazier 

v. Simpkins, No. 20-0313, 2022 WL 4355562, at *1 (W. Va. Sept. 20, 2022) (memorandum 

decision) (driver “admitted to having ‘earlier’ smoked marijuana” (emphasis added)); 

Frazier v. Raschella, No. 20-0103, 2022 WL 4355558, at *1 (W. Va. Sept. 20, 2022) 

(memorandum decision) (driver “admitted that he had ingested controlled substances that 

were prescribed to him” (emphasis added)); Frazier v. Rhodenizer, No. 20-0896, 2022 WL 

2066479, at *1 n.2 (W. Va. June 8, 2022) (memorandum decision) (driver “admitted to 

taking her prescription medication prior to the stop” (emphasis added)); Dale v. Oakland, 

234 W. Va. 106, 108, 763 S.E.2d 434, 436 (2014) (per curiam) (driver “admitted to [the 

officer] that he had ‘a joint’ and that he smoked marijuana in the car while driving around 

Moundsville” (emphasis added)).

16 See, e.g., Simpkins, 2022 WL 4355562, at *1 (officer “testified that he 

detected the odor of marijuana when he approached the automobile during the traffic stop” 

(emphasis added)); Oakland, 234 W. Va. at 108, 763 S.E.2d at 436 (officer “detected a 

strong odor of marijuana emanating from within [the driver’s] vehicle as soon as he got 

behind the vehicle even before he activated the emergency lights” (emphasis added)).
16

Montagu did not report finding any evidence of drugs,17 controlled substances,18 or 

associated paraphernalia19 on Mr. Casto or in his vehicle at the time of his investigation.

But see Frazier v. Yoder, Nos. 21-0568 & 22-0112, 2023 WL 3750616 (W. Va. June 1, 

2023) (memorandum decision) (DMV revoked driver’s license for driving under the 

influence of prescription drugs but no evidence of prescription drugs found).

A finding of driving under the influence of drugs or controlled substances 

necessarily requires a driver to be impaired as a result of his use or consumption of drugs 

or controlled substances. The record in this case does not support a finding that Mr. Casto 

17 See, e.g., Frazier v. Shaffer, No. 20-0314, 2021 WL 653242, at *1 (W. Va. 

Feb. 19, 2021) (memorandum decision) (officer “noted that [the driver] had a white 

powdery substance on and around her nose” (emphasis added)); Oakland, 234 W. Va. at 

108, 763 S.E.2d at 436 (“After searching [the driver’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.” (emphasis added)).

18 See, e.g., Howie, 2022 WL 4355565, at *1 (“the trooper observed 

unlabeled medication bottles in [the driver’s] automobile” (emphasis added)); Raschella, 

2022 WL 4355558, at *1 (officer “recovered the controlled substances at the scene, but 

without accompanying evidence that they were dispensed through prescription” (emphasis 

added)); Shaffer, 2021 WL 653242, at *1 (driver “further advised [the officer] that she took 

Lortab, Zanaflex and Tramadol that evening” (emphasis added)); Reed v. Divita, No. 14-

11018, 2015 WL 5514209, at *1 (W. Va. Sept. 18, 2015) (memorandum decision) 

(“According to the testimony of [the officer], during the stop, as [the driver] pulled her 

driver’s license from her purse, [the officer] saw in plain view a plastic baggie in her purse 

containing pills. . . . [The officer] asked [the driver] to place her purse on the trunk of the 

car, and then proceeded to search it. [The officer] discovered 13 alprazolam pills and 15 

oxycodone pills in [the driver’s] purse.” (emphasis added)), abrogated on other grounds 

by Frazier v. Talbert, 245 W. Va. 293, 858 S.E.2d 918 (2021).

19 See, e.g., Null, 246 W. Va. at 452, 874 S.E.2d at 254 (“A marijuana bowl 

with residue was found in the car[.]” (emphasis added)).
17

took or ingested drugs or controlled substances because the DMV offered no evidence that 

he used, consumed, ingested, or took controlled substances or drugs. As such, the DMV 

failed to carry its burden to prove, by a preponderance of the evidence, that Mr. Casto drove 

under the influence of drugs or controlled substances. Consequently, his license revocation 

must be reversed. See generally Frazier v. Gaither, No. 21-0726, 2023 WL 3992034, ___ 

W. Va. ___, ___ S.E.2d ___ (W. Va. June 14, 2023) (recognizing DMV’s preponderance 

of the evidence burden of proof in license revocation cases). The OAH’s finding that the 

evidence supported the revocation of Mr. Casto’s driver’s license for driving under the 

influence of drugs or controlled substances is not substantiated by the record evidence, and 

the circuit court erred by affirming the OAH’s determination that Mr. Casto’s license 

revocation was proper. See Syl. pt. 1, Francis O. Day Co., Inc. v. Dir., Div. of Env’t Prot.,

191 W. Va. 134, 443 S.E.2d 602 (1994) (“Evidentiary findings made at an administrative 

hearing should not be reversed unless they are clearly wrong.” (emphasis added)).

Therefore, we reverse the circuit court’s order upholding Mr. Casto’s license revocation 

and remand for entry of an order rescinding Mr. Casto’s revocation and reinstating his 

driver’s license.

IV.

CONCLUSION

We find that the DMV has not established by a preponderance of the 

evidence that Mr. Casto was driving a motor vehicle while under the influence of controlled 

substances or drugs. Therefore, the April 9, 2021 order of the Circuit Court of Kanawha 
18

County affirming the administrative order that upheld the revocation of Mr. Casto’s 

driver’s license is reversed, and this case is remanded for entry of an order rescinding the 

revocation and reinstating Mr. Casto’s driver’s license.

Reversed and Remanded.