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) (2006). The Department claims that the DMVH
erroneously rescinded the driver’s license suspension of Respondent David S.
Waite (“Waite”). Specifically, the Department argues that the DMVH hearing
officer erred by concluding that Respondent’s arrest was unlawful. The Administrative Law Court (“ALC” or “Court”) has jurisdiction to hear 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 as set forth below.
Sunday, April 9, 2006, shortly after 1:00 a.m., Officer Michael Johnson
(“Officer Johnson”) of the Mount Pleasant Police Department noticed that Waite’s
vehicle, which was traveling southbound on Highway 17, was “swerving” in its
lane. According to Officer Johnson, Waite’s vehicle touched the white fog line
“several times.” Officer Johnson initiated a traffic stop. As Officer Johnson
approached Waite’s vehicle, he observed Waite place three cans of beer, one of
which was opened, under the rear seat of his vehicle. As he began speaking
with Waite, Officer Johnson noticed that Waite’s eyes were bloodshot and that
his speech was slurred. Officer Johnson asked Waite where he was going, and
Waite told him that he had just left T.G.I. Friday’s and that he was headed to
Seaside Farms. After further discussions with Waite, Officer Johnson arrested Waite
for driving under the influence (“DUI”) and transported him to the Mount
Pleasant Police Department for a DataMaster test.
reaching the Mount Pleasant Police Department, Officer Johnson asked Officer Larry
Baldwin (“Officer Baldwin”) of the Mount Pleasant Police Department to
administer a DataMaster test to Waite. Officer Baldwin, a certified DataMaster
operator, read Waite the DUI implied consent advisement form and gave Waite a
copy of the form. A twenty-minute waiting period was observed. When asked to
offer a breath sample, Waite refused. Based on this refusal, Waite was issued
a Notice of Suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (2006).
Pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (2006), Waite
filed a request for an administrative hearing to challenge the suspension. The
DMVH held an administrative hearing on May 2, 2006. Both Officer Johnson and
Officer Baldwin testified at the hearing. Waite did not present any evidence
at the hearing, nor did he object to any of the testimony provided by Officer Johnson
or Officer Baldwin.
On May 22, 2006, the DMVH hearing officer issued a Final
Order and Decision rescinding Waite’s suspension. In doing so, the hearing
I find that Officer Johnson did not have
probable cause to lawfully arrest and detain Respondent for driving under the
influence. There was no testimony given to show that Officer Johnson had
probable cause [to arrest Respondent] for driving under the influence other
than one opened can of beer in the vehicle and two unopened cans. The Officer
did not smell alcohol on Respondent or in Respondent’s vehicle. I conclude as
a matter of law that Petitioner has not met its burden of proof.
1. Did the
DMVH hearing officer err when she concluded that Officer Johnson did not have
probable cause to arrest Waite for DUI?
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 is not a property right, but is a mere privilege
subject to reasonable regulation in the interests of public safety and
welfare. State v. Kerr, 330 S.C. 132, 149, 498 S.E.2d 212, 220-21 (Ct.
App. 1998). Consistent with this principle, S.C. Code Ann. § 56-5-2950(a) (2006)
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) (2006), the driver’s license of a motorist who
refuses to submit to the testing required under Section 56-5-2950(a) must be immediately
suspended. However, under S.C. Code Ann. § 56-5-2951(B)(2) (2006), a motorist who has his
license so suspended may request an administrative hearing to challenge the
suspension. If such a hearing is requested, 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; and (3)
refused to submit to a test pursuant to Section 56-5-2950. S.C. Code Ann. §
56-5-2951(F) (2006); S.C. Dep’t of Motor Vehicles v. Nelson, 364 S.C.
514, 526, 613 S.E.2d 544, 550 (Ct. App. 2005).
Department argues that the DMVH hearing officer erroneously determined that Officer
Johnson did not have probable cause to arrest Waite for DUI. I agree.
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. State
v. Baccus, 367 S.C. 41, 49, 625 S.E.2d 216, 220 (2006). 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 Johnson testified, and the DMVH hearing officer found, that: (i)
shortly after 1:00 a.m. on April 9, 2006, Officer Johnson witnessed Waite’s
vehicle “swerving” in its lane and touch the white fog line “several times”
while traveling on Highway 17; (ii) Waite had three cans of beer in his car, one of which was opened; and (iii)
Officer Johnson noticed that Waite’s eyes were bloodshot and that his speech was
slurred. Furthermore, Officer Johnson also testified, without objection, that
Waite told him that he had just left T.G.I. Friday’s, a well-known bar and restaurant.
Although the hearing officer did not make a specific finding regarding this latter
bit of testimony, it was not contradicted by Waite.
together, Officer Johnson’s testimony sufficiently demonstrated that probable
cause existed to arrest Waite for DUI. Importantly, the question before the
hearing officer was not whether the Department had proved, beyond a reasonable
doubt, that Waite was guilty of DUI. See Summersell v. S.C. Dep’t of
Pub. Safety, 334 S.C. 357, 369, 513 S.E.2d 619, 625 (Ct. App. 1999) (noting
that an implied consent hearing “is not a trial in regard to the guilt
or innocence of the defendant on a DUI charge”), vacated in part on other
grounds, 337 S.C. 19, 522 S.E.2d 144 (1999). Instead, the question was merely
whether the circumstances within Officer Johnson’s knowledge were sufficient to
lead a reasonable person to believe that Waite had committed the offense of
DUI. See Baccus, 367 S.C. at 49, 625 S.E.2d at 220. Because Officer
Johnson’s testimony showed that Waite was driving erratically, had an opened
container of alcohol in his vehicle, possessed physical characteristics
consistent with being intoxicated (i.e., bloodshot eyes and slurred speech), and
was coming from a well-known bar and restaurant shortly after 1:00 a.m. on a
Sunday morning, it was clearly sufficient, as a whole, to establish probable
cause for a DUI arrest.
the fact that Officer Johnson did not specifically testify that he smelled
alcohol on Waite or in Waite’s vehicle did not preclude a finding of probable
cause. Whether probable cause exists depends upon the “totality of the
circumstances” ― not the existence of one particular fact. See Baccus,
367 S.C. at 49, 625 S.E.2d at 220. Notably, probable cause to arrest for DUI has
been found in cases where there was no mention of evidence that the arresting
officer smelled alcohol on the motorist or in the motorist’s vehicle. See, e.g., State v. Parker, 271 S.C. 159, 245 S.E.2d 904 (1978); State
v. Martin, 275 S.C. 141, 268 S.E.2d 105 (1980).
these reasons, the DMVH hearing officer’s conclusion that Officer Johnson did
not have probable cause to arrest Waite 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.
It is hereby ordered that the DMVH’s Final Order and Decision
is REVERSED and the Department’s suspension of Waite’s driver’s license is
IT IS SO ORDERED.
John D. Geathers
April 24, 2007
Columbia, South Carolina