West Virginia Office of Miners' Health, Safety and Training v. Anthony Albert

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
WEST VIRGINIA OFFICE OF MINERS’ June 15, 2023
HEALTH, SAFETY AND TRAINING, EDYTHE NASH GAISER, CLERK
Petitioner Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

vs.) No. 22-ICA-160 (Bd. of Appeals, No. 20-D-53)

ANTHONY ALBERT,
Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner West Virginia Office of Miners’ Health, Safety and Training (“OMHST”)
appeals the September 12, 2022, order from the Board of Appeals (“Board”), which
reinstated respondent Anthony Albert’s mining certifications.1 The issue on appeal is
whether the Board erred in finding that OMHST failed to meet its burden of proof to show
that Mr. Albert failed a properly conducted alcohol breath test during a random alcohol
screening by his employer.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds that there is error in the Board’s decision. As explained
below, we find that the Board erred in reaching its decision by applying the wrong legal
standard to the facts of this case. Accordingly, a memorandum decision reversing the
Board’s order and remanding the matter is appropriate under the “limited circumstances”
requirement of Rule 21(d) of the Rules of Appellate Procedure.

On September 14, 2020, while working for a coal mining company, Mr. Albert was
selected by his employer to submit to a random alcohol screen.2 Mr. Albert was
administered a breath test by Jennifer Ellis, who is certified by the Department of
Transportation (“DOT”) as an alcohol breath technician. The test was administered at 10:35
p.m. using a Lifeloc Phoenix 6.0, a DOT approved breathalyzer device. Following this test,
Ms. Ellis informed Mr. Albert that his blood alcohol level (“BAC”) was 0.059. This

1
OMHST is represented by John H. Boothroyd, Esq. Mr. Albert is self-represented
and did not participate in this appeal.
2
OMHST requires employers to have a random drug and alcohol testing program
pursuant to West Virginia Code § 22A-1A-1 (2019) and West Virginia Code of State Rules
§ 56-19-5 (2020).

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constituted a failed tested because it was above the permissible limit of 0.04 BAC. See W.
Va. Code R. § 56-19-5. Mr. Albert immediately questioned the accuracy of the testing
device and its results.

In response to Mr. Albert’s concerns regarding the validity of his initial test, Ms.
Ellis retrieved a new, properly calibrated, Lifeloc Phoenix 6.0 device. Ms. Ellis then waited
fifteen minutes before performing the second test. During this waiting period, Ms. Ellis
directly observed Mr. Albert before administering the second test at 10:50 p.m. The test
reported Mr. Albert’s BAC to be 0.051, which was also above the permitted threshold.

On November 19, 2020, OMHST temporarily suspended Mr. Albert’s certifications
based on the positive screen pending a hearing before the Board pursuant to West Virginia
Code § 22A-1A-1(d)(4) (2019) and West Virginia Code of State Rules § 56-19-5. Mr.
Albert timely exercised his right to this Board hearing.

A hearing was held before the Board on January 13, 2021. During the hearing,
OMHST presented testimony from Ms. Ellis regarding the administration of the two tests
to Mr. Albert at his place of employment on the night of September 14, 2020. Following
the close of OMHST’s case-in-chief, the Board denied the admission of Mr. Albert’s test
results into evidence and ordered that Mr. Albert’s mining certifications be reinstated. The
Board memorialized its findings in an order dated September 12, 2022, order.3

In its order, the Board found that the applicable standards for properly conducting
chemical tests for intoxication were set forth in West Virginia Code of State Rules § 64-
10-7.2 (2021). This rule sets forth the following:

The following general methods apply in extracting breath for secondary
breath analysis:

(a) The law enforcement officer shall keep the person being tested under
constant observation for a period of twenty minutes before the test is
administered to insure that the person has nothing in his or her mouth at the
time of the test and that he or she has had no food or drink or foreign matter
in his or her mouth during the observation period.
(b) The certified instrument officer conducting the alcohol breath analysis
shall perform the evidential test sequence to ensure that the instrument is in
proper working condition at the time the person’s alcohol breath analysis test

3
The Board’s original order was entered on January 28, 2021, and was appealed by
OMHST to the Circuit Court of Kanawha County. On July 13, 2021, the circuit court
remanded the case to the Board for entry of a new order setting forth detailed findings of
facts and conclusions of law to support the Board’s ruling. This new order, dated
September 12, 2022, is the order now on appeal.

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is being conducted.
(c) The alcohol breath analysis shall be administered by a certified instrument
operator and in accordance with this rule.
(d) The certified instrument operator conducting the secondary alcohol
breath analysis shall use an individual disposable mouthpiece for each person
tested.

Id. Notably, Title 64 of the West Virginia Code of State Rules is entitled Bureau for Public
Health—Department of Health and Human Resources. Applying these provisions, the
Board found that OMHST failed to prove that it had complied with the Rule. Specifically,
the Board found that Ms. Ellis did not testify that she observed Mr. Albert for twenty
minutes prior to administering the second test; that Ms. Ellis did not testify that Mr. Albert
had nothing in his mouth at the time of the test, nor that he had no food, drink, or foreign
matter in his mouth during the observation period; and that Ms. Ellis did not testify that
she used an individual disposable mouthpiece to perform the testing. It is from this ruling
that OMHST now appeals.

Our review of this matter is governed by the State Administrative Procedures Act,
and it provides:

The court may affirm the order or decision of the agency or remand the case
for further proceedings. It 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, decision, or order are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the agency;
(3) Made upon unlawful procedures;
(4) Affected by other error of law;
(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.

W. Va. Code § 29A-5-4(g) (2021); accord W. Va. Code § 22A-1A-2(d) (2019) (stating
judicial review of OMHST Board of Appeals decision is governed by the State
Administrative Procedures Act, West Virginia Code § 29A-5-4).

On appeal, OMHST avers that the Board erred by failing to apply the correct testing
standards and procedures to its ruling. In support, OMHST states that pursuant to West
Virginia Code § 22A-1A-1, OMHST has adopted the testing procedures set forth by the
United States DOT in Title 49, Section 40, of the Code of Federal Regulations, and that
those procedures are reflected in the rules adopted by OMHST and codified in Title 56,

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Section 19, of the West Virginia Code of State Rules, which is entitled Office of Miners’
Health, Safety[,] and Training. Therefore, OMHST maintains that the Board was required
to apply the provisions of Title 56 to its ruling. We agree.

As adopted by the Legislature, OMHST’s rules set forth that, as part of its breath
alcohol testing requirements,

[t]he alcohol confirmation test shall be a chemical test of breath as provided
in 49 CFR Part 40, Subpart M, taken using an evidential breath testing device
listed on the National Highway Traffic Safety Administration's (NHTSA)
most current Conforming Products List and conducted by a breath alcohol
technician meeting the training requirements found in 49 CFR Part 40,
Subpart J.

W. Va. Code R. § 56-19-5.6 (2020). Further, these rules define the terms “breath” and
“breath test for alcohol” as follows:

The term “breath test” or “breath test for alcohol” shall mean a chemical test
of a person’s breath to determine the amount of alcohol he/she has consumed,
as provided in 49 CFR Part 40, Subpart M, taken using an evidential breath
testing device listed on the National Highway Traffic Safety Administration
(NHTSA) most current Conforming Products List and conducted by a breath
alcohol technician meeting the training requirements found in 49 CFR Part
40, Subpart J.

W. Va. Code R. § 56-19-3.5 (2020). Moreover, the stated purpose of these procedural rules
is to “implement the mandate of [West Virginia] Code § 22A-1A-1, et seq.” See W. Va.
Code R. § 56-19-2 (2020).

Conversely, Title 64 states that its procedural rules “shall apply to every person,
partnership, association, corporation, or public corporation affected by any rules,
regulations, or statutes enforceable by the bureau for public health.” W. Va. Code R. § 64-
1-2.1 (2011). Additionally, as it relates to the testing standards applied by the Board, Title
64 states that the scope of that rule establishes “the methods and standards relating to
implied consent for chemical test for intoxication pursuant to appropriate articles of
Chapter 17C of the West Virginia Code.” W. Va. Code R. § 64-10-1 (2005).

Upon review, we find that the plain language of Title 56 compels us to conclude
that the Board erred in its application of Title 64 to the merits of this case. Not only is Title
56 of the West Virginia Code of State Rules specific to OMHST, but also, the rules were
created to enforce OMHST’s statutory mandate as set forth within the provisions of
Chapter 22A of our code, which contains the statutory provisions governing OMHST. See
W. Va. Code R. § 56-19-2. As part of this mandate, OMHST’s drug and alcohol screening

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programs must comport with the procedures outlined in the Code of Federal Regulations
which, as noted by OMHST, contains different requirements from those relied upon by the
Board.4

We further find that Title 64 of the West Virginia Code of State Rules has no
application to OMHST or a coal miner’s certification. Significantly, the scope of the rule
relied upon by the Board, West Virginia Code of State Rules § 64-10-7.2, is limited to
chemical testing performed under Chapter 17C of our code. See W. Va. Code R. § 64-10-
1. However, the testing in this case was performed pursuant to Chapter 22A. A review of
Title 64 shows its rules apply to, among other things, public waterways, reportable
diseases, childcare centers, behavioral health center, and food establishments. Critically,
however, there is nothing within Title 64, which brings OMHST or a coal miner’s
certifications within its purview. Therefore, we find that the Board’s order must be reversed
based on its erroneous application of law and remanded for entry of a new order.

Accordingly, we reverse the Board’s September 12, 2022, order and remand the
matter to the Board for entry of new order applying the proper standards to the existing
record from the January 13, 2021, hearing.

Reversed and Remanded.

ISSUED: June 15, 2023

CONCURRED IN BY:

Chief Judge Daniel W. Greear
Judge Thomas E. Scarr
Judge Charles O. Lorensen

4
For example, the federal regulations adopted by OMHST impose a fifteen-minute
observation period instead of the twenty-minute period cited by the Board. See 40 C.F.R.
§ 40.251 (2017).

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