Saturday, December 20, 2014

SC Administrative Law Court Decisions

CAPTION:
SCDMV vs. Callie M. Hendricks

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Appellant:
South Carolina Department of Motor Vehicles

Respondent:
Callie M. Hendricks
 
DOCKET NUMBER:
06-ALJ-21-0336-AP

APPEARANCES:
n/a
 

ORDERS:

ORDER

STATEMENT OF THE CASE

This matter is an appeal by the South Carolina Department of Motor Vehicles (“Department”) from a Final Order and Decision of the South Carolina Division of Motor Vehicle Hearings (“DMVH”). The DMVH’s Final Order and Decision was issued following an administrative hearing held pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (Supp. 2004). The Department contends that the DMVH hearing officer erroneously rescinded the driver’s license suspension of Respondent Callie M. Hendricks (“Hendricks”). The Administrative Law Court (“ALC” or “Court”) has jurisdiction to review this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2006). Upon consideration of the Department’s brief,[1] the DMVH’s Final Order and Decision is reversed.

BACKGROUND

On October 6, 2005, Officer K.M. Hutson (“Officer Hutson”) of the Greenville Police Department responded to a motor vehicle accident at the intersection of Pendleton and Academy streets in Greenville, South Carolina. When he arrived, Officer Hutson noticed that the front quarter panel of Hendricks’ vehicle was hanging from the vehicle, and that both the driver and passenger side airbags were deployed. He then observed Hendricks pull into the roadway and drive away from the scene of the accident. Officer Hutson followed Hendricks. He signaled with his lights for her to stop, but she continued driving. He then briefly used his siren to signal to her again and she pulled over. Officer Hutson approached Hendricks’ vehicle and asked her if she thought her vehicle was safe to drive in light of the damage to it. Hendricks replied, “What damage?” Officer Hutson then asked Hendricks if she had been drinking. Hendricks stated that she had consumed “some beers.” Another law enforcement officer arrived and performed field sobriety testing on Hendricks. Officer Hutson was told by this other officer that the tests showed that Hendricks “was under the influence of a substance.” Officer Hutson arrested Hendricks for driving under the influence (“DUI”). He transported then her to a detention center for a DataMaster test.[2]

Upon reaching the detention center, Officer Hutson asked Officer K.M. Butler (“Officer Butler”) of the Greenville Police Department to administer a DataMaster test to Hendricks. Officer Butler, a certified DataMaster operator, advised Hendricks of her Miranda rights and told her that the test was going to be videotaped. He then advised Hendricks, both orally and in writing, of her implied consent rights. Hendricks consented to a DataMaster test. Hendricks mouth was checked for foreign objects and none were found. A twenty-minute waiting period was observed, and the DataMaster machine tested properly on all of its internal and external tests. Hendricks blew into the DataMaster machine and her breath sample registered a blood alcohol concentration level of 0.33%. Based on this result, Hendricks was issued a Notice of Suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (Supp. 2004).

Pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (Supp. 2004), Hendricks filed a request for an administrative hearing to challenge the suspension. The DMVH held an administrative hearing on January 24, 2006. At the onset of the hearing, Hendricks’ attorney stated that Hendricks was contesting all of the issues set forth in S.C. Code Ann. § 56-5-2951(F) (Supp. 2004). Both Officer Hutson and Officer Butler testified at the hearing. Hendricks did not present any evidence at the hearing, nor did she object to any of the testimony provided by Officer Hutson or Officer Butler.

On February 22, 2006, the DMVH hearing officer issued a Final Order and Decision rescinding Hendricks’s suspension. In doing so, the hearing officer stated:

I find that there was no testimony or evidence presented that . . . led the arresting officer to believe that the Respondent was operating a motor vehicle while under the influence of alcohol, drugs or a combination of alcohol and drugs. The officer did not present testimony or evidence that Respondent exhibited the characteristics of a person under the influence of alcohol or drugs; such as, odor of an alcoholic beverage, bloodshot eyes, or slurred speech. There being no evidence corroborating the arresting officer’s testimony concerning the lawfulness of the Respondent’s arrest, I conclude as a matter of law that the Petitioner failed to meet its burden of proof.

ISSUE ON APPEAL[3]

1.      Did the DMVH hearing officer err when she rescinded Hendricks’ suspension on the grounds that the Department failed to establish that Hendricks’ arrest was lawful?

STANDARD OF REVIEW

The DMVH is authorized by law to determine contested cases arising from the Department. See S.C. Code Ann. § 1-23-660 (Supp. 2006). Therefore, the DMVH is an “agency” under the Administrative Procedures Act (“APA”). See S.C. Code Ann. § 1-23-310(2) (2005). As such, the APA’s standard of review governs appeals from decisions of the DMVH. See S.C. Code Ann. § 1-23-380 (Supp. 2006); see also Byerly Hosp. v. S.C. State Health & Human Servs. Fin. Comm’n, 319 S.C. 225, 229, 460 S.E.2d 383, 385 (1995). The standard used by appellate bodies, including the ALC, to review agency decisions is provided by S.C. Code Ann. §1-23-380(A)(5) (Supp. 2006).[4] This section provides:

The court may not substitute its judgment for the judgment of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision [of the agency] if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(a) in violation of constitutional or statutory provisions;

(b) in excess of the statutory authority of the agency;

(c) made upon unlawful procedure;

(d) affected by other error of law;

(e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

S.C. Code Ann. § 1-23-380(A)(5) (Supp. 2006).

A decision is supported by “substantial evidence” when the record as a whole allows reasonable minds to reach the same conclusion reached by the agency. Bilton v. Best Western Royal Motor Lodge, 282 S.C. 634, 641, 321 S.E.2d 63, 68 (Ct. App. 1984). A decision will not be set aside simply because reasonable minds may differ on the judgment. Lark v. Bi-Lo, Inc., 276 S.C. 130, 136, 276 S.E.2d 304, 307 (1981). The fact that the record, when considered as a whole, presents the possibility of drawing two inconsistent conclusions from the evidence does not prevent the agency’s findings from being supported by substantial evidence. Waters v. S.C. Land Resources Conservation Comm’n, 321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996); Grant v. S.C. Coastal Council, 319 S.C. 348, 353, 461 S.E.2d 388, 391 (1995).

In applying the substantial evidence rule, the factual findings of the administrative agency are presumed to be correct. Rodney v. Michelin Tire Co., 320 S.C. 515, 519, 466 S.E.2d 357, 359 (1996) (citing Kearse v. State Health and Human Servs. Fin. Comm’n, 318 S.C. 198, 200, 456 S.E.2d 892, 893 (1995)). The party challenging an agency action has the burden of proving convincingly that the agency’s decision is unsupported by substantial evidence. Waters, 321 S.C. at 226, 467 S.E.2d at 917.

DISCUSSION

Summary of Applicable Law

The license to operate a motor vehicle upon South Carolina’s public highways is not a property right, but is a mere privilege subject to reasonable regulations in the interests of public safety and welfare. Sponar v. S.C. Dep’t of Pub. Safety, 361 S.C. 35, 39, 603 S.E.2d 412, 415 (Ct. App. 2004) (quoting Summersell v. S.C. Dep’t of Pub. Safety, 334 S.C. 357, 366, 513 S.E.2d 619, 624 (Ct. App. 1999), vacated in part on other grounds, 337 S.C. 19, 522 S.E.2d 144 (1999)), cert. granted, (Nov. 17, 2005). Consistent with this principle, S.C. Code Ann. § 56-5-2950(a) (Supp. 2004) provides that:

A person who drives a motor vehicle in this State is considered to have given consent to chemical tests of his breath, blood, or urine for the purpose of determining the presence of alcohol or drugs or the combination of alcohol and drugs if arrested for an offense arising out of acts alleged to have been committed while the person was driving a motor vehicle while under the influence of alcohol, drugs, or a combination of alcohol and drugs. A breath test must be administered at the direction of a law enforcement officer who has arrested a person for driving a motor vehicle in this State while under the influence of alcohol, drugs, or a combination of alcohol and drugs.

Pursuant to S.C. Code Ann. § 56-5-2951(A) (Supp. 2004), the license of a motorist who registers an alcohol concentration of 0.15% or above on a test conducted pursuant to Section 56-5-2950(a) must be immediately suspended. However, under S.C. Code Ann. § 56-5-2951(B)(2) (Supp. 2004), a motorist who has his license so suspended may request an administrative hearing to challenge the suspension. If such a hearing is requested, then, pursuant to S.C. Code Ann. § 56-5-2951(F) (Supp. 2004), the scope of the hearing must be limited to whether the person: (1) was lawfully arrested or detained; (2) was advised in writing of the rights enumerated in Section 56-5-2950; (3) consented to taking a test pursuant to Section 56-5-2950, and: (a) the reported alcohol concentration at the time of testing was fifteen one-hundredths of one percent or more; (b) the individual who administered the test or took samples was qualified pursuant to Section 56-5-2950; (c) the tests administered and samples obtained were conducted pursuant to Section 56-5-2950; and (d) the machine was working properly.

Probable Cause

The Department argues that the DMVH hearing officer erroneously determined that the Department failed to establish that Hendricks was lawfully arrested for DUI. I agree.

The fundamental question in determining the lawfulness of an arrest is whether probable cause existed to make the arrest. State v. Baccus, 367 S.C. 41, 49, 625 S.E.2d 216, 220 (2006). Probable cause for a warrantless arrest exists when the circumstances within the arresting officer’s knowledge are sufficient to lead a reasonable person to believe that a crime has been committed by the person being arrested. Id. Whether probable cause exists depends upon the totality of the circumstances surrounding the information at the officer’s disposal. Id. Probable cause may be found somewhere between suspicion and sufficient evidence to convict. Thompson v. Smith, 289 S.C. 334, 337, 345 S.E.2d 500, 502 (Ct. App. 1986), overruled in part on other grounds by Jones v. City of Columbia, 301 S.C. 62, 389 S.E.2d 662 (1990). In determining the presence of probable cause for arrest, the probability cannot be technical, but must be factual and practical considerations of everyday life on which reasonable, prudent and cautious men, not legal technicians, act. Id. (emphasis in original).

Here, Officer Hutson testified without objection that: (i) he observed Hendricks, whose vehicle was significantly damaged, drive away from the scene of an accident; (ii) Hendricks continued driving after Officer Hutson signaled her with his lights to stop; (iii) Hendricks indicated that she did not realize that there was damage to her vehicle despite the fact that both airbags in her vehicle were deployed; (iv) Hendricks admitted that she had consumed “some beers;” (v) throughout the traffic stop, Hendricks continually failed to comply with simple commands given to her; and (vi) Officer Hutson was told by a fellow law enforcement officer that Hendricks’ performance on field sobriety tests showed that Hendricks “was under the influence of a substance.”

This testimony sufficiently demonstrated that Officer Hutson had probable cause to arrest Hendricks for DUI. The question before the hearing officer was not whether Hendricks was guilty of DUI, but whether the circumstances within Officer Hutson’s knowledge were sufficient to lead a reasonable person to believe that Hendricks had committed the offense of DUI. See Summersell v. S.C. Dep’t of Pub. Safety, 334 S.C. 357, 368-69, 513 S.E.2d 619, 625 (Ct. App. 1999), vacated in part on other grounds, 337 S.C. 19, 522 S.E.2d 144 (1999). Because Officer Hutson’s testimony showed that Hendricks’ was driving, that her mental faculties were impaired, and that she had previously been consuming alcohol, it was clearly sufficient to establish probable cause for a DUI arrest. The fact that Officer Hutson did not specifically testify that Hendricks smelled of alcohol, or that she had bloodshot eyes or slurred speech, did not preclude a finding of probable cause. See, e.g., State v. Parker, 271 S.C. 159, 245 S.E.2d 904 (1978) (finding probable cause to arrest for DUI where officer observed motorist’s vehicle drive across the middle of a two-lane road and officer had previously received tip that motorist was driving while intoxicated); State v. Martin, 275 S.C. 141, 268 S.E.2d 105 (1980) (holding that DUI arrest was lawful where officer, who had been dispatched to the scene of a reported accident, found motorist to be “highly intoxicated” and where motorist admitted that he was the driver of one of the vehicles involved in the accident). Moreover, Officer Hutson’s testimony alone was sufficient to establish probable cause — there was no need for corroborating evidence. See, e.g., State v. Goodstein, 278 S.C. 125, 292 S.E.2d 791 (1982). Therefore, the DMVH hearing officer’s conclusion that the Department failed to meet its burden of proof with respect to establishing that Hendricks’ arrest was lawful was clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record. Accordingly, the DMVH’s Final Order and Decision must be reversed.

ORDER

IT IS THEREFORE ORDERED that that the DMVH’s Final Order and Decision is REVERSED and the Department’s suspension of Hendricks’ driver’s license is reinstated.

AND IT IS SO ORDERED.

______________________________

John D. McLeod

Administrative Law Judge

March 22, 2007

Columbia, South Carolina



[1] Hendricks failed to submit a brief for this appeal. However, this fact alone does not require this Court to find in favor of the Department. See ALC Rule 38; see also Rule 208(a)(4), SCACR. Nonetheless, in situations such as this one, this Court will not “search the record for reasons to affirm.” See Wierszewski v. Tokarick, 308 S.C. 441, 444, 418 S.E.2d 557, 559 n.2 (Ct. App. 1992).

[2] The DataMaster machine is the breath alcohol testing device used by SLED. See SLED implied consent policy 8.12.1(A)(2).

[3] Although the Department presented an additional issue on this appeal, because the issue discussed herein is dispositive, the other issue need not be addressed. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (noting that an appellate court need not address remaining issues when a prior issue is dispositive).

[4] Pursuant to S.C. Code Ann. § 1-23-380(B) (Supp. 2006), administrative law judges must conduct appellate review in the same manner prescribed in Section 1-23-380(A).


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