Saturday, December 20, 2014

SC Administrative Law Court Decisions

CAPTION:
SCDMV vs. David S. Waite

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Appellant:
South Carolina Department of Motor Vehicles

Respondent:
David S. Waite
 
DOCKET NUMBER:
06-ALJ-21-0556-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) (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 The Department claims that the DMVH erroneously rescinded the driver’s license suspension of Respondent David S. Waite (“Waite”).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,[1] the DMVH’s Final Order and Decision is reversed as set forth below.

BACKGROUND

On 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.

Upon 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 officer stated:

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.

ISSUE ON APPEAL[2]

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

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).[3] 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 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) 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) (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.[4] 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).

Probable Cause

The Department argues that the DMVH hearing officer erroneously determined that Officer Johnson did not have probable cause to arrest Waite for DUI. I agree.

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. 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).

Here, 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;[5] (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.

Taken 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.

Moreover, 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).

For 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.

ORDER

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 reinstated.

AND IT IS SO ORDERED.

______________________________

John D. Geathers

Administrative Law Judge

April 24, 2007

Columbia, South Carolina



[1] Waite did not file 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] 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).

[3] 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).

[4] The length of the suspension period ranges from 90 days to 180 days, depending upon whether the individual has been convicted of a DUI-related offense within the past ten years. See S.C. Code Ann. § 56-5-2951(I) (2006).

[5] This testimony demonstrated that Officer Johnson was justified in stopping Waite. See Kelly v. S.C. Dep’t of Highways, 323 S.C. 334, 474 S.E.2d 443 (Ct. App. 1996) (officer’s observation of motorist’s vehicle swerve abruptly to the right and nearly hit the median prompted a reasonable suspicion on the officer’s part that the motorist was intoxicated and thus justified a stop); State v. Durr, 618 S.E.2d 117 (Ga. Ct. App. 2005) (finding stop was justified where arresting officer observed motorist weaving within his lane); Neal v. Commonwealth, 498 S.E.2d 422, 424 (Va. Ct. App. 1998) (“[R]epeated weaving within a lane provides sufficient reasonable and articulable suspicion to justify an investigatory stop”); State v. Jacobs, 590 S.E.2d 437 (N.C. Ct. App. 2004) (officer’s observation of motorist weaving within his lane for three-quarters of a mile at 1:43 a.m. in an area near bars was sufficient to establish a reasonable suspicion of impaired driving); People v. Greco, 783 N.E.2d 201, 204 (Ill. App. Ct. 2003) (“[E]rratic driving, including weaving within a single lane, is sufficient to justify a traffic stop.”); State v. Malaney, 871 S.W.2d 634 (Mo. Ct. App. 1994) (finding stop was justified where officer observed motorist’s vehicle weave within lane three times over approximately a mile); State v. Thomte, 413 N.W.2d 916 (Neb. 1987) (finding stop was justified where officer observed motorist’s vehicle weave twice within lane, including one “sharp weave”); State v. Ellanson, 198 N.W.2d 136 (Minn. 1972) (finding stop was justified where officer observed motorist’s vehicle weaving within its lane, even though officer did not feel that weaving constituted a violation of the traffic laws); see generally State v. Boyea, 765 A.2d 862, 867 (Vt. 2000) (noting that the dangers inherent in drunk driving present a “greater urgency for prompt action” than other situations involving suspected criminal activity).


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