DAVIS, Justice:
In this case, Joe E. Miller, Commissioner of the West Virginia Division of Motor Vehicles (hereinafter referred to as "Commissioner Miller"), respondent below and appellant, appeals an order of the Circuit Court of Nicholas County that reversed Commissioner Miller's "Remand Final Order," which revoked the driver's license of Mr. Edward L. Sims, II (hereinafter referred to as "Mr. Sims"), petitioner below and appellee, following Mr. Sims' arrest for Driving under the Influence of Alcohol. On appeal, Commissioner Miller assigns error to the circuit court's conclusions that Commissioner Miller: (1) improperly relied upon a secondary chemical test of the breath, the Intoximeter Test, that was administered more than two hours after Mr. Sims last drove a motor vehicle; (2) failed to reconcile conflicting testimonial evidence in accord with Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996), and Choma v. West Virginia Division of Motor Vehicles, 210 W.Va. 256, 557 S.E.2d 310 (2001); (3) failed to give substantial weight to the dismissal of the criminal case against Mr. Sims in accordance with Choma; and (4) failed to apply an adverse inference against the testimony of the arresting officer in light of the officer's failure to introduce a videotape recording of the officer administering Mr. Sims' Intoximeter Test.
On November 23, 2007, Deputy J. B. Bailey of the Nicholas County Sheriff's Department responded to a single vehicle accident on Levisay Road in Nettie, Nicholas County, West Virginia. When Deputy Bailey arrived at the scene, he found a vehicle on its top in front of a residence with no driver present. As Deputy Bailey began to look around the vehicle, the driver, Mr. Sims, exited the nearby residence.
Mr. Sims was charged with DUI; however the criminal case was subsequently dismissed by the Nicholas County Magistrate Court pursuant to a plea agreement by which Mr. Sims agreed to plead guilty to separate charges.
Commissioner Miller issued an initial order of revocation on December 18, 2007, which revoked Mr. Sims' license to operate a motor vehicle for a period of six months. Mr. Sims timely requested a hearing, which was held on August 6, 2008. Following the hearing, by final order effective November 10, 2008, Commissioner Miller upheld his initial order of revocation. Mr. Sims appealed to the Circuit Court of Nicholas County. During the pendency of the circuit court proceedings, the parties agreed that the matter should be remanded to Commissioner Miller in order to comply with the mandates of Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996), and Choma v. West Virginia Division of Motor Vehicles, 210 W.Va. 256, 557 S.E.2d 310 (2001). Accordingly, the circuit court entered an order remanding the action and staying the revocation of Mr. Sims' driver's license. Following the remand, Commissioner Miller entered a "Remand Final Order," effective August 3, 2009, in which he again affirmed the six-month revocation of Mr. Sims' driver's license. Mr. Sims appealed the "Remand Final Order" to the circuit court. By order entered December 30, 2009, the circuit court reversed Commissioner Miller's order and reinstated Mr. Sims' license and driving privileges. This appeal followed.
This Court has previously established the standards for our review of a circuit court's order deciding an administrative appeal as follows:
Syl. pt. 2, id. With due consideration for these standards, we address the issues herein raised.
In this appeal, Commissioner Miller has asserted several errors. We will address each of these alleged errors separately.
With regard to the Intoximeter test, which is a secondary chemical test of the breath, the circuit court found that "W. Va. Code § 17C-5-8 requires that a secondary chemical test of the breath be conducted within two (2) hours from and after the time the person allegedly last drove a motor vehicle." The circuit court then concluded that, because the secondary chemical test of Mr. Sims' breath was conducted more than two hours from the time he last drove a motor vehicle, Commissioner Miller erred by relying on the same to revoke Mr. Sims' license.
Commissioner Miller argues that, in reaching this conclusion, the circuit court erred and misapplied the plain language of W. Va. Code § 17C-5-8(a) (2004) (Repl. Vol. 2009), which requires the secondary chemical test of breath be administered within two hours of either the act charged or the arrest therefor. Commissioner Miller contends that the secondary chemical test of Mr. Sims' breath was conducted within two hours of his arrest and was, therefore, properly relied upon.
Mr. Sims argues that the clear meaning of W. Va. Code § 17C-5-8(a) requires that a sample of a person's blood, breath, or urine must be taken within two hours of the time of the specific act for which the person is being charged. Therefore, he contends, the Intoximeter test was improperly relied upon during the administrative proceedings because it was given to Mr. Sims more than two hours from the time he had allegedly last driven a motor vehicle.
Resolution of this issue requires the Court to examine W. Va. Code § 17C-5-8(a). Therefore, we first observe that "[j]udicial interpretation of a statute is warranted only if the statute is ambiguous and the initial step in such interpretative inquiry is to ascertain the legislative intent." Syl. pt. 1, Ohio Cnty. Comm'n v. Manchin, 171 W.Va. 552, 301 S.E.2d 183 (1983). However, "[w]hen a statute is clear and unambiguous and the legislative intent is plain, the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute." Syl. pt. 5, State v. General Daniel Morgan Post No. 548, V.F.W., 144 W.Va. 137, 107 S.E.2d 353 (1959).
W. Va. Code §17C-5-8(a) states, in relevant part,
(Emphasis added). We find this language to be clear, and therefore not subject to our interpretation. "`Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation.'" Huffman v. Goals Coal Co., 223 W.Va. 724, 729, 679 S.E.2d 323, 328 (2009) (quoting Syl. pt. 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968)). The above-quoted language plainly allows the admission of evidence resulting from a chemical analysis of blood, breath, or urine, so long as the sample or specimen tested was taken within two hours of the time of arrest or of the acts alleged. "We have customarily stated that where the disjunctive `or' is used, it ordinarily connotes an alternative between the two clauses it connects." State v. Rummer, 189 W.Va. 369, 377, 432 S.E.2d 39, 47 (1993) (internal quotations and citations omitted). Accordingly, we now hold that W. Va. Code §17C-5-8(a) (2004) (Repl. Vol. 2009) allows the admission of evidence of a chemical analysis performed on a specimen that was collected within two hours of either the acts alleged or the time of the arrest.
In the instant case, the evidence demonstrates that Mr. Sims was arrested at 12:19 a.m., and the Intoximeter test at issue was administered at 1:09 a.m., less than one hour later. Therefore, because the breath test was administered within two hours of Mr. Sims' arrest, the evidence resulting therefrom was admissible and properly considered by Commissioner Miller.
Another ground given by the circuit court for reversing Commissioner Miller's "Remand Final Order" was that Commissioner Miller's order
Commissioner Miller argues that the circuit court erred in finding that the testimonies of Deputy Bailey and Mr. Sims were not reconciled as required by Muscatell and Choma. Additionally, Commissioner Miller asserts that a review of his "Remand Final Order" shows that he complied with both Muscatell and Choma.
Mr. Sims contends that the circuit court did not err because the Commissioner's "Remand Final Order" fails to discuss various elements of the inconsistencies between the testimony of the arresting officer and that of Mr. Sims. Specifically, Mr. Sims complains that he testified that the field sobriety tests were conducted in an area comprised of nothing but large gravel and that his evidence was not rebutted by Deputy Bailey.
The Muscatell Court held that
Syl. pt. 6, Muscatell, 196 W.Va. 588, 474 S.E.2d 518. The foregoing holding was rendered in connection with the issue of whether the vehicle stop in Muscatell met the reasonable suspicion standard. This Court observed that the Commissioner had "failed to make an adequate analysis of the facts from which this Court or the circuit court could determine whether the stopping of the appellee's vehicle was lawful under the proper standard." 196 W. Va. at 595, 474 S.E.2d at 525. The arresting officer had testified during his direct examination that, prior to the traffic stop, he had observed Ms. Muscatell's vehicle briefly straddle or cross the center line. However, the Court found that on cross examination, the officer appeared to testify that the stop was made solely on the basis of an anonymous call.
In Choma v. West Virginia Division of Motor Vehicles, 210 W.Va. 256, 557 S.E.2d 310, the Commissioner's finding that Ms. Choma was guilty of DUI, which had been upheld by the circuit court, was directly contrary to: (1) a video in evidence that showed her to be upset, but clearly not intoxicated; (2) the testimony of an expert witness who had viewed the video and opined that it did not portray a person who was intoxicated; and (3) a breath analyzer test that was apparently flawed insofar as it showed Ms. Choma to have "a blood alcohol concentration of slightly more than thirty one-hundredths of one percent (.305) by weight, which is more than three times the `legal limit' . . . and is associated with a very high level of intoxication—close to a stupor." Choma, 210 W. Va. at 259 n.3, 557 S.E.2d 313 n.3. Relying on Syllabus point 6 of Muscatell, 196 W.Va. 588, 474 S.E.2d 518, the Choma Court concluded that the "Commissioner's decision arbitrarily and capriciously discredited and disregarded the evidence that favored the appellant, and was clearly contrary to the weight of the evidence." 210 W. Va. at 259, 557 S.E.2d 313.
Unlike Muscatell, which involved an inconsistency between the direct and cross examination testimony of the arresting officer, and Choma, in which the Commissioner's conclusion that Ms. Choma was guilty of DUI was completely contrary to the evidence presented, the instant case involves a conflict between the testimony of Officer Bailey and that of Mr. Sims. Thus, the discrepancy in this case simply boils down to a credibility issue.
Under Muscatell, the Commissioner is required to address credibility issues by providing "a reasoned and articulate decision, weighing and explaining the choices made and rendering its decision capable of review by an appellate court." Syl. pt. 6, in part, Muscatell, 196 W.Va. 588, 474 S.E.2d 518.
196 W. Va. at 598, 474 S.E.2d at 528. Furthermore, this Court has recognized that "[c]redibility determinations made by an administrative law judge are . . . entitled to deference." Syl. pt. 1, in part, Cahill v. Mercer County Bd. of Educ., 208 W.Va. 177, 539 S.E.2d 437 (2000). This is so because the hearing examiner who observed the witness testimony is in the best position to make credibility judgments. Cf. Gum v. Dudley, 202 W.Va. 477, 484, 505 S.E.2d 391, 398 (1997) ("The trial court . . . observed the demeanor of the witnesses and other nuances of a trial that a record simply cannot convey.").
The circuit court failed to identify the particular conflicting testimony in relation to which it found Commissioner Miller's analysis lacking. Mr. Sims contends that the conflicting testimony pertained to the condition of the surface on which the field sobriety tests were conducted, whether Mr. Sims smoked a cigarette within fifteen minutes of taking the preliminary breath test, and whether he was observed by Deputy Bailey for a period of fifteen minutes prior to taking the preliminary breath test.
With respect to the conflicting testimony regarding the surface upon which Mr. Sims performed the field sobriety tests, the "Remand Final Order" explained that, while Mr. Sims testified that there was large gravel in the area where the field sobriety tests were administered, and he offered a sample of one piece of gravel from the area, there was not sufficient evidence to show that the tests were conducted in an area comprised of nothing but large gravel. With respect to whether Mr. Sims smoked a cigarette within fifteen minutes of the preliminary breath test and whether Deputy Bailey observed Mr. Sims for the requisite fifteen minutes prior to administering the test, the Commissioner explained that Mr. Sims "went back and forth on whether the cigarette was smoked before or after the Arresting Officer started his observation period," while "[t]he Arresting Officer clearly stated that he [Mr. Sims] did not smoke a cigarette after the fifteen minute observation period began." The foregoing explanations provided by Commissioner Miller in his "Remand Final Order" demonstrate that the issues were indeed "considered and weighed and not overlooked or concealed." Muscatell, 196 W.Va. 598, 474 S.E.2d 528. Accordingly, we conclude the order is sufficient to comply with Muscatell and Choma and the circuit court erred in ruling otherwise.
Commissioner Miller argues that the circuit court erred in finding that this Court's decision in Choma requires the Commissioner to give substantial weight to the dismissal of the criminal charges against Mr. Sims. The fact of the dismissal was presented to the hearing examiner, but it was noted that the criminal matter was dismissed based on a plea agreement to plead guilty to separate charges. No evidence was presented by Mr. Sims regarding the charges to which he agreed to plead guilty in exchange for the dismissal of the DUI charge. Commissioner Miller contends that the dismissal of the criminal matter, without adjudication of the DUI charge, does not provide a basis for reversal of the order of revocation in this matter. The Commissioner points out that he noted the dismissal and properly found that it did not outweigh the evidence presented.
Conversely, Mr. Sims argues that the Commissioner failed to give substantial weight to the dismissal of the criminal case against Mr. Sims and improperly placed the burden on Mr. Sims to show why the charges were dismissed.
In Choma, this Court held that
Syl. pt. 3, Choma, 210 W.Va. 256, 557 S.E.2d 310 (emphasis added). In addition, the Choma Court clarified, in footnote 4, that "[t]his holding places no affirmative duty on the Commissioner to obtain or adduce information about other proceedings." 210 W. Va. at 260 n.4, 557 S.E.2d at 314 n.4. Finally, this Court has observed that "[a]lthough, the Commissioner is to give consideration to the results of related criminal proceedings, the criminal proceedings are not dispositive of the administrative license revocation proceedings and are not a jurisdictional prerequisite to the administrative proceedings." Carroll v. Stump, 217 W.Va. 748, 756, 619 S.E.2d 261, 269 (2005). The foregoing holding and related comments by this Court make clear that the Commissioner must "consider and give substantial weight to the results of related criminal proceedings" only when such evidence is "presented in the administrative proceeding," and that there is no affirmative duty placed upon the Commissioner to obtain information about other proceedings. Syl. pt. 3, in part, Choma, 210 W.Va. 256, 557 S.E.2d 310. Thus, insofar as Mr. Sims sought to have information regarding his related criminal proceedings considered in the Department of Motor Vehicles administrative proceedings, the burden was properly placed upon Mr. Sims to provide complete information regarding the same. Furthermore, it is clear from the record that Commissioner Miller considered the evidence presented pertaining to Mr. Sims' related criminal proceedings; however, because the evidence of the dismissal of the DUI charges presented by Mr. Sims was incomplete, Commissioner Miller was correct in declining to give the evidence substantial weight, and in finding that the dismissal did not outweigh the substantial evidence supporting the revocation of Mr. Sims' license for DUI.
In its order reversing Commissioner Miller's order and reinstating Mr. Sims' driver's license, the circuit court included the following findings:
Commissioner Miller argues that the circuit court erred in finding that the failure of an investigating officer to introduce a videotape at an administrative hearing creates an adverse inference that such videotape would be adverse to the testimony of the officer. Commissioner Miller notes that, in Belknap v. Cline, 190 W.Va. 590, 592, 439 S.E.2d 455, 457 (1993) (per curiam), this Court rejected the notion that a "video, simply because it existed, had to be introduced into evidence" at an administrative hearing. Finally, Commissioner Miller contends that the circumstances in this case do not warrant an "adverse inference," insofar as such inferences are reserved for cases involving spoliation of evidence and failure to call a material witness.
Mr. Sims argues that the circuit court did not err in finding that the failure of the arresting officer to produce a videotape raises an adverse inference that such videotape would be adverse to the testimony of the officer. Mr. Sims asserts that a driver's license revocation proceeding is civil in nature, and the failure of a party in a civil proceeding to present relevant and material evidence may give rise to an adverse inference. Mr. Sims directs this Court's attention to McGlone v. Superior Trucking Company, Inc., 178 W.Va. 659, 363 S.E.2d 736 (1987).
In Syllabus point 3 of McGlone, this Court held:
178 W.Va. 659, 363 S.E.2d 736 (emphasis added). Initially, we note that the foregoing syllabus point from McGlone does not address the issue herein presented, because the syllabus point addresses the failure of a party to call a material witness, whereas the instant matter pertains to a videotape, the production of which could have been sought by Mr. Sims. Although the syllabus point in McGlone pertained only to a material witness, the McGlone Court did explain that an adverse inference may be appropriate in circumstances involving a failure to procure and/or produce evidence that is readily available. In this regard, the McGlone Court observed that
McGlone, 178 W. Va. at 664, 363 S.E.2d at 741 (quoting Jacobs v. Jacobs, 218 Va. 264, 268-69, 237 S.E.2d 124, 127 (1977)).
While the permissible adverse inference standard of McGlone might be proper where a party fails to obtain or preserve material evidence,
Based upon the foregoing discussion, the order of the Circuit Court of Nicholas County, dated December 30, 2009, is reversed, and this case is remanded for reinstatement of Commissioner Miller's "Remand Final Order," dated August 3, 2009, revoking Mr. Sims' license to drive a motor vehicle.
Reversed and Remanded.
Syl. pt. 2, Carte v. Cline, 200 W.Va. 162, 488 S.E.2d 437 (1997). In this case, the evidence establishing that Mr. Sims had driven under the influence of alcohol included Mr. Sims' admission that he had been operating a vehicle, as documented on the DUI Information Sheet; his failure of the various field sobriety tests administered by Deputy Bailey; Deputy Bailey's observation of Mr. Sims' glassy eyes and slurred speech; and the secondary breath tests that indicated Mr. Sims' blood alcohol content was .091.
