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the DMVH hearing officer erroneously rescinded the driver’s license suspension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, the DMVH’s Final Order and Decision is reversed.
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.
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
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.
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
STANDARD OF REVIEW
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).
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
violation of constitutional or statutory provisions;
excess of the statutory authority of the agency;
upon unlawful procedure;
by other error of law;
erroneous in view of the reliable, probative, and substantial evidence on the
whole record; or
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).
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).
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.
of Applicable Law
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.
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.
argues that the DMVH hearing officer erroneously determined that the Department
failed to establish that Hendricks was lawfully arrested for DUI. I agree.
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).
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.”
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.
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.
IT IS SO ORDERED.
March 22, 2007
Columbia, South Carolina