OF THE CASE
matter is an appeal by Melinda Halloway (“Halloway”) from a Final Order and
Decision of the South Carolina Division of Motor Vehicle Hearings (“DMVH”)
following an administrative hearing held pursuant to S.C. Code Ann. § 56-9-363
(Supp. 2007). Halloway claims that the DMVH Hearing Officer erroneously sustained
the suspension of her driver’s license. The Administrative Law Court (“ALC”)
has jurisdiction to hear this matter pursuant to S.C. Code Ann. § 56-9-363 and S.C.
Code Ann. § 1-23-660 (Supp. 2007). Upon review of this matter, the DMVH’s Final
Order and Decision is affirmed.
April 26, 2007, Officer Amy Vymislicky, a police officer for the North Myrtle
Beach Department of Public Safety, responded to a police dispatch indicating
that a white vehicle had driven past two large barricaded signs at a drawbridge
on Sea Mountain Highway. Upon arriving at the scene, Officer Vymislicky found
a white Chevrolet Cavalier stopped directly in front of a flashing barricade
blocking the use of the out-of-service drawbridge. The vehicle had already proceeded
past one barricade. As the officer approached the vehicle, the vehicle’s
reverse lights came on and then the vehicle stopped, pulled forward, and
stopped again. Officer Vymislicky found that Halloway was the driver of the
vehicle. Halloway told Officer Vymislicky that she was waiting for the bridge
to turn. When the officer asked Halloway for her
vehicle information, Halloway had difficulty locating the items, and dropped
from her purse onto her lap and the floor of her car. Officer Vymislicky
noticed that Halloway’s
speech was slurred and she smelled a slight odor of alcohol. The officer asked
Halloway to exit the car and administered four field sobriety tests to Halloway.
Halloway failed all of them. Officer Vymislicky read Halloway her Miranda
rights and placed her under arrest. Halloway was transported to the North Myrtle Beach jail, where she was again read her Miranda rights, and also read and
given a copy of the implied consent advisement. Halloway refused to give a
breath sample. Based on this refusal, Halloway was issued a notice of
suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (2006).
to § 56-5-2951(B)(2), Halloway filed a request for an administrative hearing to
challenge the suspension. The DMVH held an administrative hearing on May 29,
2007. At the hearing, Officer Vymislicky testified that she was dispatched to
the bridge and that “[d]ispatch had advised me that a white vehicle had driven
through two large barricaded signs and stopped.” (DMVH Hr’g Tr. 4, May 29,
2007.) Halloway neither testified at the hearing nor presented any other
1, 2007, the DMVH Hearing Officer issued a Final Order and Decision sustaining
Halloway’s suspension. The DMVH Hearing Officer found that the Department “met
the burden of proof.” Halloway now appeals.
the DMVH Hearing Officer err in sustaining the suspension of Halloway’s driving
privileges where information allegedly from an anonymous caller led to the
dispatch of a police officer who detained Halloway and later arrested her?
DMVH is authorized by law to determine contested cases arising from the
Department. See S.C. Code Ann. § 1-23-660. 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(A) (Supp. 2007); 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 to review agency decisions is provided by S.C. Code Ann.
§1-23-380(A)(5). See S.C. Code Ann. § 1-23-380(B) (Supp. 2007) (directing Administrative Law Judges to conduct a review “in the same manner
prescribed in [§1-23-380](A)”). 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. §
pursuant to the APA, this court’s review is limited to deciding whether the
DMVH’s Final Order and Decision is unsupported by substantial evidence or is
affected by an error of law. Bass v. Kenco Group, 366 S.C. 450, 457,
622 S.E.2d 577, 581 (Ct. App. 2005). Substantial evidence is not a mere
scintilla of evidence, nor the evidence viewed blindly from one side of the
case, but is evidence which, considering the record as a whole, would allow
reasonable minds to reach the conclusion the agency reached in order to justify
its action. Hargrove v. Titan Textile Co., 360 S.C. 276, 289, 599
S.E.2d 604, 611 (Ct. App. 2004). The possibility of drawing two inconsistent
conclusions from the evidence does not prevent the agency’s findings from being
supported by substantial evidence. Id. at 290, 599 S.E.2d at 611. The
party challenging an agency’s decision has the burden of proving convincingly
that the agency’s decision is unsupported by substantial evidence. Waters
v. S.C. Land Resources Conservation Comm’n, 321 S.C. 219, 226, 467 S.E.2d
913, 917 (1996).
argues that the suspension of her license is not valid because Officer
Vymislicky lacked reasonable suspicion to detain her. See S.C. Code
Ann. § 56-5-2951(F)(1) (Supp. 2007) (including the lawfulness of the arrest or
detention as an issue properly within the scope of the hearing before the DMVH
Hearing Officer). Relying on State v. Green, 341 S.C. 214, 532 S.E.2d
896 (Ct. App. 2000), and other case law interpreting the Fourth
Amendment to the United States Constitution, she argues that the “the anonymous
tip did not provide sufficient indicia of reliability to make the traffic stop.”
This argument fails for several reasons.
there is no evidence in the record whatsoever that the stop was based upon an
anonymous tip. Pursuant to the DMVH Hearing Officer’s instructions at the
hearing, based upon Halloway’s objection, Officer Vymislicky simply testified
that she was dispatched to Sea Mountain Highway and informed by the dispatcher
that a white vehicle had driven through two large barricaded signs. (DMVH Hr’g
Tr. 4, May 29, 2007.) While Officer Vymislicky did not have personal knowledge
as to the source of the dispatcher’s information, it does not necessarily
follow that it was an anonymous tip. Accordingly, it is questionable whether
case law addressing the reliability of anonymous tips is even applicable to the
Even if the dispatch of Officer Vymislicky were based upon
an anonymous tip, however, the record shows that Officer Vymislicky had a
reasonable suspicion to detain Halloway. See State v. Khingratsaiphon, 352 S.C. 62, 69, 572 S.E.2d 456,
459 (2000) (holding that a police officer may stop and detain an individual for
investigative purposes when the officer has reasonable suspicion that the
individual is involved in criminal activity.); State v. Nelson, 336 S.C.
186, 192, 519 S.E.2d 786, 789 (1999) (“[A] policeman
who lacks probable cause but whose observations lead him reasonably to suspect
that a particular person has committed, is committing, or is about to commit a
crime, may detain that person briefly in order to investigate the circumstances
that provoke that suspicion.”) (citing Berkemer v. McCarty, 468
U.S. 420 (1984)). In this particular case, Officer Vymislicky personally
observed Halloway’s vehicle stopped between two barricades blocking the use of
an out-of-service drawbridge. The vehicle’s driver had already disregarded one
barricade. Officer Vymislicky observed the vehicle in motion, alternating between
reversing and driving forward toward the out-of-service bridge. (DMVH Hr’g Tr.
5, May 29, 2007.)
Section 56-5-950 (2006) of the South Carolina Code of Laws
requires motorists to obey the instructions of any “official traffic-control
device.” See S.C. Code Ann. § 56-5-540 (2006) (defining traffic-control
devices as “[a]ll signs, signals, markings and devices . . .
placed or erected by authority of a public body or official having jurisdiction
for the purpose of regulating, warning or guiding traffic . . . .”). Furthermore,
the Code requires motorists to stop at barriers near bridges and states that
motorists “shall not proceed beyond the . . . barriers . . . until the indication or signal to proceed is exhibited.”
S.C. Code Ann. § 56-5-2760 (2006). Thus, even if Halloway’s assertion that information
provided by an anonymous caller prompted the North Myrtle Beach Department of
Public Safety to dispatch an officer were correct, Officer Vymislicky’s
personal observations at the scene provided reasonable suspicion to detain Halloway. See United States v. Perrin, 45
F.3d 869, 872 (4th Cir. 1995) (“We have
held that ‘[a]n informant’s tip can provide the justification for a Terry stop even if the informant’s reliability is unknown, and certainly can do so if
. . . the information is corroborated.’”) (quoting United States v. Porter,
738 F.2d 622, 625 (4th Cir. 1984)); see also Florida v. J.L.,
529 U.S. 266, 271 (2000) (“The reasonableness of official suspicion must be
measured by what the officers knew before they conducted their search.”); cf. State v. Green, 341 S.C. 214, 532 S.E.2d 896 (Ct. App. 2000) (implying
that reasonable suspicion may exist for a stop where the “predictive” nature of
a tip is corroborated by the officer’s own observations).
the DMVH Hearing Officer did not err in holding that the Department met its
burden of proving that it complied with the implied consent law by suspending
Halloway’s license for ninety days because she was arrested for driving under
the influence and refused to submit to a breath test. See S.C. Dep’t
of Motor Vehicles v. Nelson, 364 S.C. 514, 523, 613 S.E.2d 544, 549 (Ct.
App. 2005); Ex Parte Horne, 303 S.C. 30, 31, 397 S.E.2d 788, 789 (Ct.
App. 1990). Further, the record supports the Hearing Officer’s rejection of
Halloway’s defense that the stop was unlawful.
the foregoing reasons, it is
ORDERED that the DMVH’s Final Order and Decision is AFFIRMED.
IS SO ORDERED.
Paige J. Gossett
January 8, 2008
Columbia, South Carolina