OF THE CASE
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 (2006 &
Supp. 2006). The Department contends that the DMVH hearing officer erroneously
determined that Petitioners failed to adequately prove that the arrest of Respondent
Paul Anthony Aburrow for driving under the influence (DUI) was lawful. The Administrativ e Law Court (ALC or Court) has jurisdiction to review this matter pursuant to
S.C. Code Ann. § 1-23-660 (Supp. 2007). Upon consideration of the briefs, the
DMVH’s Final Order and Decision is affirmed.
On April 13, 2007,
Officer Fabisiewicz of the Charleston Police Department was conducting a
driver’s license checkpoint with several other police officers. At
approximately 9:25 p.m., he observed a red 1985 Chevrolet pickup truck approach
the checkpoint. He stopped the vehicle and made contact with the driver, later
identified to be Aburrow. While requesting Aburrow’s driver’s license,
registration and insurance, Officer Fabisiewicz smelled “a strong odor of
alcohol” coming from Aburrow’s vehicle. He asked Aburrow to step out of his
vehicle Officer Fabisiewicz and Aburrow walked over to a nearby gas station,
where Officer Fabisiewicz administered three field sobriety tests to Aburrow.
According to Officer Fabisiewicz, Aburrow did not successfully complete the
tests. Officer Fabisiewicz arrested Aburrow for DUI and transported him to a
detention center for a breath test. Aburrow was subsequently issued a Notice
of Suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (2006) for refusing to
submit to breath testing.
to S.C. Code Ann. § 56-5-2951(B)(2) (2006), Aburrow filed a request for an
administrative hearing to challenge the suspension. The DMVH held an
administrative hearing on June 5, 2007. The following day, the DMVH hearing
officer issued a Final Order and Decision, in which she rescinded Aburrow’s
suspension on the grounds that Petitioners had failed to meet their burden of
proving that Aburrow’s arrest was lawful.
Did the DMVH hearing officer err when she determined that Petitioners
failed to carry their burden of proving that Aburrow was lawfully arrested for
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. 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).
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
(b) in excess of the statutory authority of the
(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
S.C. Code Ann.
§ 1-23-380(A)(5) (Supp. 2007).
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).
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.
The Department argues
that the DMVH hearing officer erred by determining that Petitioners failed to
carry their burden of proving that Aburrow was lawfully arrested for DUI. I disagree.
question in determining the lawfulness of an arrest is whether probable cause
existed to make the arrest. State v. Baccus, 367 S.C. 41, 49, 625
S.E.2d 216, 220 (2006). 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. Id. 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 Fabisiewicz testified that he “smelled a strong odor of alcohol coming
from [Aburrow’s] vehicle.” He also testified that he “gave [Aburrow] three
standardized field sobriety tests in which he did not complete successfully.”
Moreover, no evidence was offered to rebut Officer Fabisiewicz testimony.
However, Officer Fabisiewicz provided no testimony as to whether he smelled
alcohol on Aburrow’s person or whether Aburrow admitted to consuming
In addition, other than present the conclusion that Aburrow did not
successfully complete the test, Officer Fabisiewicz provided no specific details
about Aburrow’s performance on the field sobriety tests or why he concluded
that Aburrow did not complete them successfully. Furthermore, Officer
Fabisiewicz did not testify that Aburrow was unsteady on his feet or that he
had bloodshot eyes, slurred speech or difficulty following directions -
characteristics that are usually associated with those who are impaired.
Finally, he presented no evidence that Aburrow was driving erratically.
The Court concludes that the DMVH hearing officer’s
determination that Petitioners failed to carry their burden of proving the
existence of probable cause was not clearly erroneous. As discussed above, the
factual findings of an administrative agency are presumed to be correct, and an agency’s
decision will not be set aside simply because reasonable minds may differ on
the judgment. While the evidence clearly supports a finding that
probable cause existed in this case, the record also contains relevant evidence
from which a reasonable person could potentially find that the evidence did not
establish probable cause. See Bursey v. S.C. Dept. of Health and
Environmental Control, 360 S.C. 135, 600 S.E.2d 80 (Ct. App. 2004). First,
though Officer Fabisiewicz testified that Aburrow did not successfully complete
the field sobriety test, he did not offer any specific details as to why he
concluded Aburrow failed the test. Since Officer Fabisiewicz’s testimony about
the field sobriety tests was conclusory, the hearing officer was not required
to give it much weight. See State v. Stroup, 935 P.2d 438
(Or. Ct. App. 1997) (“Because the state did not elicit testimony about how the
[field sobriety] test was performed and the significance of Jenista’s
observations, the court in its fact finding capacity was not bound to give
weight to the officer’s conclusory testimony”); Amador v. State, 242
S.W.3d 95, 102 (Tex. App. 2007) (“Determining whether a reasonable police
officer would conclude that Amador was intoxicated would likely require the
trooper to articulate at least some of the relevant details about Amador’s
performance on the field sobriety test.”). Second, other than Officer
Fabisiewicz’s testimony about the field sobriety tests, the record is devoid of
evidence that Aburrow was impaired. As discussed above, there is no evidence
that Aburrow was driving erratically or that he exhibited any of the typical
characteristics of impairment. While there is some evidence that Aburrow had
been drinking, it is not unlawful to drive after consuming alcohol unless one
is “materially or appreciably impaired” or has a blood alcohol level above
.08%. See S.C. Code Ann. §§ 56-5-2930, 56-5-2933 (2006).
IS THEREFORE ORDERED that that the DMVH’s Final Order and Decision is AFFIRMED.
IT IS SO ORDERED.
K. Anderson, III
June 4, 2008
Columbia, South Carolina