No. 14-0103 - Patricia S. Reed, Commissioner, West Virginia Division of Motor 

Vehicles v. Jeffrey Hill 

FILED 

February 27, 2015
 

RORY L. PERRY II, CLERK
 

SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA
 

Davis, Justice, dissenting: 

In this proceeding, the lower tribunals found that Jeffrey Hill was unlawfully 

arrested. Therefore, his driver’s license was improperly revoked. In this appeal, the 

Commissioner of the Division of Motor Vehicles argued that the arresting officer properly 

administered the preliminary breath test (“PBT”). Therefore, the arrest of Mr. Hill was legal. 

The majority opinion found that, even though the PBT test was invalid, the arrest for DUI 

was lawful. For the reasons set out below, I dissent. 

Under the Majority Opinion, Field Sobriety Tests No Longer Need Be
 

Given to Support an Arrest for DUI after a Routine Stop of a Vehicle
 

The majority opinion correctly points out that the police officer conceded that 

Mr. Hill passed the one leg stand and walk and turn field sobriety tests. The officer 

submitted documentation showing that, at the time of his arrest, Mr. Hill failed the horizontal 

gaze nystagmus (“HGN”) test. However, during the administrative hearing the officer 

testified that Mr. Hill, in fact, had passed the HGN test. The majority opinion, like the lower 

tribunals, accepted the officer’s administrative hearing testimony that Mr. Hill passed the 

HGN test. 

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Because the lower tribunals determined that Mr. Hill had passed all tests 

administered by the arresting officer, the dispositive issue here is whether the PBT was 

properly administered. To be clear, the Commissioner’s brief implicitly conceded that if the 

PBT was improperly administered, probable cause to arrest Mr. Hill did not exist. 

This Court previously has recognized that, under the DUI statute, it was 

required that Mr. Hill be “lawfully placed under arrest for an offense involving driving under 

the influence of alcohol[.]” Dale v. Ciccone, 233 W. Va. 652, 659, 760 S.E.2d 466, 473 

(2014) (internal quotation marks and citation omitted). A lawful arrest is required for the 

police to administer a secondary chemical test. See W. Va. Code § 17C-5-4(c) (2013) (Repl. 

Vol. 2013). The Commissioner cited the following as establishing probable cause to arrest 

Mr. Hill: 

Dep. Delgado had reasonable grounds to believe [Mr. 

Hill] was driving under the influence from his near head-on 

collision with Dep. Delgado, his admission of drinking four 

beers, the odor of alcohol on his breath, bloodshot and glassy 

eyes, unsteadiness while standing, and excited and slightly 

slurred speech. This was sufficient basis for Dep. Delgado to 

administer the PBT. Once [Mr. Hill] failed the test, Dep. 

Delgado had reasonable grounds to believe that [Mr. Hill] was 

under the influence, and [Mr. Hill] was lawfully arrested. 

(Emphasis added). 

It is clear from the Commissioner’s argument that the determination of 

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probable cause to arrest Mr. Hill did not occur until after he failed the PBT. See Hill v. 

Cline, 193 W. Va. 436, 440, 457 S.E.2d 113, 117 (1995) (“After [the driver] failed the 

sobriety tests, probable cause existed to arrest [him] for driving under the influence.”). 

Correctly, the majority opinion, like the lower tribunals, concluded that the PBT was invalid 

because the police officer did not wait the required amount of time before administering the 

test. See Davis v. Miller, No. 11-1189, 2012 WL 6097655, at *1 n.2 (W. Va. Dec. 7, 2012) 

(memorandum decision) (“[T]he results of the preliminary breath test ‘cannot be given any 

weight because the record reflects that it was administered two minutes after the Arresting 

Officer’s initial contact with [petitioner] and therefore the fifteen minute time-frame was not 

adhered to in accordance with the guidelines.’”). The lower tribunals correctly determined 

that because the PBT was invalid, no legal basis existed for the officer to arrest Mr. Hill. The 

majority opinion disagreed and found that, even though Mr. Hill passed the one leg stand, 

walk and turn, and HGN tests, and that the PBT was invalid, the officer nevertheless had 

probable cause to arrest Mr. Hill. 

Under the facts of this case, the majority decision has drastically altered the 

probable cause standard for a DUI arrest of a motorist during a routine stop of a vehicle 

based on reasonable suspicion. For example, under the new standard articulated by the 

majority, if a police officer stops a vehicle because of an expired registration sticker and 

smells alcohol, notices glassy eyes, slurred speech, and unsteadiness in standing, the officer 

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may immediately arrest the driver and require the driver to take a secondary chemical test. 

In other words, it matters not that the driver passed all field sobriety tests–because, under the 

majority’s new standard, the police can dispense with performing field sobriety tests. 

This new standard imposed by the majority is unworkable and will lead to 

numerous DUI arrests that, like the instant case, are based on suspicion, not probable cause. 

Our law on probable cause in general has been stated as follows: 

Probable cause to make a misdemeanor arrest without a 

warrant exists when the facts and circumstances within the 

knowledge of the arresting officer are sufficient to warrant a 

prudent man in believing that a misdemeanor is being 

committed in his presence. 

Syl., Simon v. West Virginia Dep’t of Motor Vehicles, 181 W. Va. 267, 382 S.E.2d 320 

(1989). See Syl. pt. 2, Carroll v. Stump, 217 W. Va. 748, 619 S.E.2d 261 (2005) (“A person 

is ‘charged’ with an offense, for the purposes of W. Va. Code § 17C-5A-1 (1994), when he 

or she is lawfully arrested by a law-enforcement officer having probable cause to suspect the 

person was driving a motor vehicle under the influence of alcohol, controlled substances or 

drugs.”). In the instant case, it is clear that the police officer did not have probable cause to 

arrest Mr. Hill without, at a minimum, showing that he failed the PBT. The Commissioner 

knew this and therefore based its argument entirely upon the validity of the PBT test to 

support the arrest. Simply put, the majority opinion has carved out a standard that gives 

police officers absolute discretion to arrest citizens for DUI on only mere suspicion!!! 

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Let me be clear. Our cases do recognize that there can be circumstances where 

field sobriety tests cannot be administered; yet, an arrest for DUI may ensue. For example, 

this situation may arise because of an accident that required the driver to be taken to a 

hospital. See Syl. pt. 1, State v. Franklin, 174 W. Va. 469, 327 S.E.2d 449 (1985) (“Since 

the offense of driving under the influence of alcohol resulting in death . . . may be, depending 

on the circumstances, either a felony or misdemeanor, a lawful, warrantless arrest may be 

made, upon reasonable suspicion of probable cause, at a hospital by an officer before whom 

the offence was not committed if the suspect has been taken to the hospital from the scene 

of the accident for emergency medical care.”). See also State v. Shugars, 180 W. Va. 280, 

376 S.E.2d 174 (1988) (trooper informed defendant at hospital that he was being charged). 

However, until the majority opinion in the instant case, the decisions of this Court have 

always required evidence of failed field sobriety tests to support an arrest after a routine stop 

of a vehicle on mere suspicion.1 I strongly disagree with the majority’s deviation from our 

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See, e.g., Dale v. Odum, 233 W. Va. 601, 760 S.E.2d 415 (2014) (failed the field 

sobriety tests and preliminary breath test); Carroll v. Stump, 217 W. Va. 748, 619 S.E.2d 261 

(2005) (failed several field sobriety tests); State v. Davisson, 209 W. Va. 303, 547 S.E.2d 241 

(2001) (defendant failed field sobriety tests); State ex rel. State v. Gustke, 205 W. Va. 72, 516 

S.E.2d 283 (1999) (driver failed a series of field sobriety tests); Muscatell v. Cline, 196 

W. Va. 588, 474 S.E.2d 518 (1996) (failed field sobriety tests); Hill v. Cline, 193 W. Va. 436, 

457 S.E.2d 113 (1995) (defendant failed field sobriety tests); Donahue v. Cline, 190 W. Va. 

98, 437 S.E.2d 262 (1993) (driver was unable to perform field sobriety tests adequately); 

Cunningham v. Bechtold, 186 W. Va. 474, 478, 413 S.E.2d 129, 133 (1991) (driver was 

unable to satisfactorily complete any of the field sobriety tests given to him); Simon v. West 

Virginia Dep’t of Motor Vehicles, 181 W. Va. 267, 382 S.E.2d 320 (1989) (failed field 

sobriety test). See also Commissioner of West Virginia Div. of Motor Vehicles v. Brewer, No. 

13-0501, 2014 WL 1272540 (W. Va. Mar. 28, 2014) (memorandum decision) (driver failed 

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well-settled law. 

Consequently, I dissent. 

field sobriety tests). 

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