Friday, April 20, 2018

SC Administrative Law Court Decisions

SCDMV vs. Larry McCarson

South Carolina Department of Motor Vehicles

South Carolina Department of Motor Vehicles

Larry McCarson





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 The Department claims that the DMVH erroneously rescinded the driver’s license suspension of Respondent Larry McCarson (“McCarson”). The Administrative Law Court (“ALC” or “Court”) has jurisdiction to hear this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2007). Upon consideration of the briefs, I find that this matter should be remanded to the DMVH for a new hearing on the merits.


On January 1, 2006, Officer M. W. Jones (“Officer Jones”) was called to the scene of a traffic stop initiated by his supervisor, Sgt. Jimmy Kimbrell (“Officer Kimbrell”). McCarson was the subject of the traffic stop. Upon arriving at the scene, Officer Jones asked McCarson to the rear of the vehicle, read him his Miranda rights and asked him to perform several field sobriety tests. McCarson performed poorly on these tests. As a result, Officer Jones arrested McCarson for Driving Under the Influence and transported him to the Laurens County Jail where Officer Jones administered the Datamaster test.

Officer Jones is a certified DataMaster operator. Prior to testing, McCarson was read his implied consent rights and was again read his Miranda rights. Officer Jones then furnished a copy of the implied consent advisement form to McCarson. McCarson agreed to submit to a breath test. The test results indicated that McCarson had a blood alcohol level of .17 percent. Based on the test result, Officer Jones issued McCarson a Notice of Suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (2006).

Thereafter, pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (2006), McCarson filed a request for an administrative hearing to challenge the suspension. An administrative hearing was held on March 1, 2006. Officer Jones appeared at the hearing on behalf of the Department, but was not assisted by counsel. McCarson was represented by his attorney at the hearing.

At the hearing, Officer Jones offered Officer Kimbrell’s report in order to supplement his own testimony regarding the events which lead to McCarson’s arrest. Specifically, Officer Kimbrell’s report detailed the events which transpired prior to Officer Jones’ arrival at the scene. Furthermore, Officer Jones sought to enter the following into evidence: his DataMaster certification, the implied consent advisement form, the notice of suspension, the traffic ticket, and the incident report.

McCarson’s attorney objected to the introduction of Officer Kimbrell’s report, citing hearsay concerns. Furthermore, based on his aforementioned objection, McCarson’s attorney also objected to the introduction of the remaining documents offered by Officer Jones, stating that “there is no foundation and in trying to lay the foundation, there’s hearsay, without the other officer here.” (R. at 34)

On March 30, 2007, the DMVH hearing officer issued a Final Order and Decision, in which she held the following:

I find that the testimony of Trooper Jones failed to prove that the Respondent was lawfully arrested for driving under the influence. Trooper Jones failed to present any testimony or other evidence which led him to believe that the Respondent was operating a motor vehicle while under the influence of alcohol or drugs…[t]here was no testimony about the reason for the stop, no testimony about attributes or behavior which typically lead an officer to believe someone is under the influence, and no testimony about the Respondent’s performance on the field sobriety tests…[t]here being insufficient evidence presented concerning the lawfulness of the Respondent’s arrest, I conclude as a matter of law that Petitioner failed to meet its burden of proof. Accordingly, the relief requested by the Respondent must be granted.

(R. at 13).

The Department now appeals.


1.      Was it error for the DMVH to exclude documentary evidence that would have served as the basis for probable cause?


The DMVH is authorized by law to determine contested cases arising from the Department. See S.C. Code Ann. § 1-23-660 (Supp. 2007). 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. 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, including the ALC, to review agency decisions is provided by S.C. Code Ann. §1-23-380(A)(5) (Supp. 2007).[1] 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. 2007).


The Department maintains that the DMVH hearing officer erred when she excluded documentary evidence that would have served as the basis for probable cause. I agree.

Once the DMVH held that Officer Kimbrell’s report was inadmissible hearsay, the remaining evidence offered by Officer Jones, according to the DMVH, lacked a proper foundation for admittance. Essentially, anything presented in furtherance of Officer Kimbrell’s report was subject to a domino effect of some degree, as evidenced by the fact that none of the proffered documents were admitted. As such, the primary issue on appeal is whether Officer Kimbrell’s report should have been admitted, or more specifically, whether it qualifies under an exception to hearsay. Because this issue is dispositive, the Court will not address any other issues raised on appeal.[2]

The admission of evidence is a matter addressed to the sound discretion of the trial judge and his ruling will not be disturbed absent a clear abuse of discretion amounting to error of law.” Anchor Point, Inc. v. Shoals of Anderson, Inc., 309 S.C. 486, 491, 424 S.E.2d 521, 524 (1992). Hearsay has been defined as “[a]n out of court statement by someone other than the person testifying which is used to prove the truth of the matter asserted…and is inadmissible unless it falls within an exception.” State v. Rice, 375 S.C. 302, 323, 652 S.E.2d 409, 420 (Ct. App., 2007). As a general rule, “[w]ritten reports of investigations made by persons not offered as witnesses are inadmissible as hearsay.” Stevenson v. Emerson Elec. Corp., 286 S.C. 331, 335, 333 S.E.2d 355, 358 (Ct. App. 1985).

Rule 803 SCRE provides a list of generally recognized exceptions to hearsay.[3] Similarly, Rule 1101 (d)(3) SCRE provides a list of proceedings in which hearsay testimony is admissible.

The applicable exceptions [to hearsay], listed in Rule 1101(d)(3), SCRE, only allow the introduction of hearsay testimony in proceedings for extradition, preliminary hearings in criminal cases, sentencing and dispositional hearings in juvenile delinquency matters, or granting or revoking probation; issuance of warrants for arrest, criminal summonses, and search warrants; and proceedings with respect to release on bail or otherwise.

Summersell v. S.C. Dep’t of Pub. Safety, 37 S.C. 19, 21-22, 522 S.E.2d 144, 145 (1999).

Notably, Officer Kimbrell’s report does not fall squarely within one of these exceptions.[4] Consequently, the analysis must turn to common law to determine whether an exception exists.

Although the Court of Appeals ruling in Summersell v. S.C. Dep’t of Pub. Safety, 334 S.C. 357, 513 S.E.2d 619 (Ct. App., 1999), cert. granted in part, vacated in part, 337 S.C. 19, 522 S.E.2d. 144 (1999) was vacated in part, this court nevertheless finds its analysis probative as it relates to the issue at hand.[5]

In Summersell, a motorist was arrested for driving under the influence. The motorist refused to submit to testing and subsequently requested an administrative hearing to challenge the suspension of his license. The motorist argued that the DMVH erred in allowing the Department to “elicit hearsay testimony during the administrative hearing” in order to establish probable cause to arrest. Id. at 623.

Contrary to the motorist’s contention, the Court of Appeals found that hearsay testimony is admissible to establish probable cause to arrest. Id. “The fundamental question in determining the lawfulness of an arrest is whether probable cause existed to make the arrest.” Id.

Although it is generally correct to state the purpose of a preliminary hearing is to “apprise the defendant of the nature of the State’s evidence,” its purpose is more specifically “…to establish that probable cause exists to continue the criminal process. The State has the burden of proving probable cause, but is not required to call all of its potential witnesses.” To this end, we have previously held that hearsay testimony as to the nature of the State’s evidence is permissible.

Summersell, 513 S.E.2d at 624 (citing State v. Dingle, 279, S.C. 278, 306 S.E.2d 223 (1983)) (emphasis added). See also State v. Thompson, 276 S.C. 616, 281 S.E.2d 216 (1981) (hearsay testimony is admissible to show probable cause for arrest; permissible for the State to read into the record statements of other unavailable witnesses at a preliminary hearing); State v. Jones, 273 S.C. 723, 259 S.E.2d 120 (1979) (hearsay testimony did not render a preliminary hearing unlawful).

Thus, it is clear that the Summersell Court found, and I agree, that South Carolina courts have promulgated a common law exception to hearsay, to wit, that hearsay testimony is admissible to establish probable cause to arrest.[6]

Regarding the matter at hand, it is evident that Officer Kimbrell’s report qualifies as hearsay. His report was offered to establish that McCarson was lawfully arrested, i.e., that there was probable cause to arrest. However, pursuant to the well-settled case law set forth above, it is equally clear that the proffered evidence should have been admitted by the DMVH.

Additionally, because the excluded report provides a foundation for probable cause to arrest, everything that flows from it, the DataMaster certification, the implied consent advisement form, the notice of suspension, and any other relevant information proffered by Officer Jones should also be admissible.

Accordingly, I find that the DMVH hearing officer erred when she excluded documentary evidence that would have served to establish probable cause. Furthermore, as the Record before me is woefully inadequate, I also find that Remand is appropriate here.


It is HEREBY ORDERED that the above-referenced appeal is hereby REMANDED to the DMVH for a new hearing on the merits in accord with the analysis set forth above.



John D. McLeod

Administrative Law Judge

January 15, 2008

Columbia, South Carolina

[1] Pursuant to S.C. Code Ann. § 1-23-380(B) (Supp. 2007), Administrative Law Judges must conduct appellate review in the same manner prescribed in Section 1-23-380(A).

[2] 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] Rule 803 (8) SCRE is similar to its federal counterpart in that it provides an exception for public records and reports. Importantly, both the state and federal rules contain an exception to the exception “in criminal cases matters observed by police officers and other law enforcement personnel.” Rule 803 (8) SCRE; Fed. R. Evid. 803 (8)(B). However, unlike the South Carolina rule, the federal rule also provides an exception “in civil actions and proceedings against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.” Fed. R. Evid. 803 (8)(C). Pursuant to this rule, federal courts have found that police reports are admissible, but only to the extent that they contain factual findings and matters observed by investigating officers. See In re Byrd, 294 B.R. 808, 811 (Bankr. M.D. Ga. 2003) (“…factual findings and matters observed by a public official, such as a police officer, contained in public records, such as police reports, can be allowed in as admissible evidence under the public record exception to hearsay rule.”).

[4] The report does not fall within the public documents and records exception of Rule 803 (8) SCRE because of the rule’s exclusionary language pertaining to matters observed by police officers and other law enforcement personnel. See n. 3, supra. This exclusion is primarily based on the notion that these records “…do not have the same guarantees of trustworthiness because such records are usually more in the nature of a record prepared for specific litigation.” Collins, Danny, South Carolina Evidence § 20.7 (2d ed. 2000).

[5] The Supreme Court vacated the Summersell ruling (in part) due to issue preservation concerns and did not rule on the substance of the Court of Appeals’ analysis. “We find that the issue of admissibility of…hearsay testimony…is not preserved for review…[a]ccordingly the Court of Appeals erred in addressing the admissibility of…hearsay testimony.” Summersell v. S.C. Dep’t of Pub. Safety, 337 S.C. 19, 22, 522 S.E.2d. 144, 145-146 (1999).

[6] The procedure by which probable cause is established at the DMVH is analogous to the methods employed in preliminary hearings in criminal cases. Thus, an exception allowing hearsay testimony to establish probable cause is not wholly unexpected.