Thursday, April 24, 2014

SC Administrative Law Court Decisions

CAPTION:
Melinda Halloway vs. SCDMV

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Appellant:
Melinda Halloway

Respondents:
South Carolina Department of Motor Vehicles
 
DOCKET NUMBER:
07-ALJ-21-0260-AP

APPEARANCES:
n/a
 

ORDERS:

ORDER

STATEMENT OF THE CASE

This 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.

BACKGROUND

On 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


license and vehicle information, Halloway had difficulty locating the items, and dropped items
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).

Pursuant 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 evidence.

On June 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.

ISSUE ON APPEAL

Did 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?

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. 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 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).

Thus, 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).

DISCUSSION

Halloway 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.

First, 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 instant facts.

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.[1] 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).

Thus, 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.


ORDER

For the foregoing reasons, it is

ORDERED that the DMVH’s Final Order and Decision is AFFIRMED.

IT IS SO ORDERED.

______________________________

Paige J. Gossett

Administrative Law Judge

January 8, 2008

Columbia, South Carolina



[1] During the DMVH hearing, Halloway’s attorney challenged whether there was “probable cause” for the stop, and on appeal Halloway’s brief argues whether there was “reasonable suspicion” for the stop. It is important to note that “reasonable suspicion” is the standard for evaluating the lawfulness of a stop, while “probable cause,” a more stringent standard, is used for evaluating the lawfulness of an arrest. See State v. Lesley, 326 S.C. 641, 643, 486 S.E.2d 276, 277 (Ct. App. 1997) (“Police may stop a motor vehicle and briefly detain and question an occupant if they have a reasonable suspicion that the occupant is involved in criminal activity.”) (citing Michigan v. Long, 463 U.S. 1032 (1983)); State v. Hamilton, 251 S.C. 1, 4, 159 S.E.2d 607, 609 (1968) (whether an arrest is “constitutionally valid” depends on whether “at the moment the arrest was made, the officers had probable cause to make it . . . .”) (citing Beck v. Ohio, 379 U.S. 89 (1964)). Thus, it appears the sole basis of Halloway’s appeal is to challenge the sufficiency of the stop and she does not appear to challenge whether Officer Vymislicky lacked probable cause to arrest her for DUI. However, to the extent Halloway challenges both the stop and the arrest, the court finds that neither was unlawful. See State v. Khingratsaiphon, 352 S.C. 62, 69, 572 S.E.2d 456, 459 (2000) (“‘Reasonable suspicion’ requires a ‘particularized and objective basis that would lead one to suspect another of criminal activity.’”) (quoting United States v. Cortez, 449 U.S. 411 (1981)); State v. Moultrie, 316 S.C. 547, 552, 451 S.E.2d 34, 37 (Ct. App. 1994) (“probable cause for a warrantless arrest generally exists ‘where the facts and circumstances within the arresting officer’s knowledge are sufficient for a reasonable person to believe that a crime has been or is being committed by the person to be arrested’”) (quoting United States v. Miller, 925 F.2d 695 (4th Cir. 1991)).


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