OF THE CASE
matter is an appeal by Amy Lynn Lapp (“Lapp”) 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. § 56-5-2951(B)(2) (2006).
Lapp 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. § 1-23-660 (Supp. 2007). Upon review
of this matter, the DMVH’s Final Order and Decision is affirmed.
November 4, 2007, Officer Trevor D. Simmons, a police officer for the Mount
Pleasant Police Department, responded to a police dispatch regarding an
automobile accident. Upon arriving at the scene, Officer Simmons found Lapp
still sitting in her vehicle. Officer Simmons approached Lapp, who admitted to
having backed up and struck two vehicles behind her. Officer Simmons could smell
a strong odor of alcohol on Lapp. The officer requested that Lapp perform field
sobriety tests; Lapp refused. Officer Simmons read Lapp her Miranda rights and
placed her under arrest. Lapp was transported to the Mount Pleasant Police
Department, where she was again read her Miranda rights, and also read and
given a copy of the implied consent advisement. Lapp refused to give a breath
sample. Based on this refusal, Lapp was issued a notice of suspension pursuant
to S.C. Code Ann. § 56-5-2951(A) (2006).
to § 56-5-2951(B)(2), Lapp filed a request for an administrative hearing to
challenge the suspension. The DMVH held an administrative hearing on December
4, 2007. Officer Simmons testified. Lapp neither testified at the hearing nor
presented any other evidence.
December 6, 2007, the DMVH Hearing Officer issued a Final Order and Decision sustaining
Lapp’s suspension. Specifically, she stated:
The officer admitted that he did not see
her drive and the reasons he believed she had been driving were that she was
still sitting in the vehicle and because she admitted to him that she was the
driver and hit two vehicles. . . . In this instance, [Lapp] was still in the
vehicle, she admitted to hitting two other vehicles, she had a strong odor of
alcohol on her person and refused to submit to field sobriety tests. The
officer had probable cause to make a lawful arrest for driving under the
ISSUES ON APPEAL
the DMVH Hearing Officer err when she found that there was sufficient evidence
to support a warrantless arrest without other corroborating evidence?
the DMVH Hearing Officer err in finding that there was sufficient probable
cause for an arrest for Driving Under the Influence?
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 (as amended 2008); 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(5). See S.C. Code Ann. § 1-23-600(E) (as amended 2008)
(directing administrative law judges to conduct appellate review in the same
manner prescribed in § 1-23-380). 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
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. §
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).
The South Carolina
Court of Appeals has held that the
requirements for suspension for refusal to
consent are: (1) a person (2) operating a motor vehicle (3) in South Carolina
(4) be arrested for an offense arising out of acts alleged to have been
committed while the person was driving under the influence of alcohol, drugs,
or both, and (5) refuse to submit to alcohol or drug testing.
S.C. Dep’t of
Motor Vehicles v. Nelson, 364 S.C. 514, 523, 613 S.E.2d 544, 549 (Ct. App.
2005) (citing S.C. Code Ann. §§ 56-5-2950, -2951). Thus, once the Department
establishes a prima facie case by introducing evidence as to the five elements
listed in Nelson, the burden of production shifts to the motorist to present evidence, by
cross-examination or otherwise, that supports one or more of the statutory
defenses permitted by S.C. Code Ann. § 56-5-2951(F) (Supp. 2007).
Officer Simmons’s testimony established the elements required to enforce a
suspension. Although Lapp appears to argue that the DMVH Hearing Officer’s specific
findings that Simmons saw Lapp behind the wheel of the car and that a collision
had occurred are unsupported by substantial evidence, the court finds that the inference
that Lapp had been operating a motor vehicle is reasonable based upon the
evidence presented. Moreover, Lapp admitted driving the car and hitting two
other vehicles; therefore, any argument that the Department failed to prove the
second Nelson element is manifestly without merit.
has Lapp established that her arrest was unlawful. The fundamental 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).
statute, “deputy sheriffs may for any suspected freshly committed crime,
whether upon view or upon prompt information or complaint, arrest
without warrant . . . .” S.C. Code Ann. § 23-13-60 (2007) (emphasis added).
Section 23-6-140 (2007) gives highway patrolmen the same authority as deputy
sheriffs “to arrest without warrants and to detain
persons found violating or attempting to violate any laws of the State relative
to highway traffic, motor vehicles or commercial motor carriers.”
Here, Officer Simmons testified, and the DMVH Hearing Officer reasonably found,
that: (i) Officer Simmons personally observed Lapp sitting in her vehicle; (ii)
after approaching Lapp, Officer Simmons smelled alcohol on Lapp; (iii) Lapp
admitted to having driven and to having consumed alcoholic beverages; (iv) Lapp
admitted to having struck two other vehicles; and (v) Lapp refused to perform
field sobriety tests. Taken together, Officer Simmons’s testimony demonstrated
that Lapp’s arrest for DUI was lawful.
question before the DMVH Hearing Officer was not whether Lapp 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” (emphasis in original)), 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 Simmons’s knowledge were sufficient to lead a
reasonable person to believe that Lapp had committed the offense of DUI. See Baccus, 367 S.C. at 49, 625 S.E.2d at 220. Officer Simmons’s testimony—based
on his personal knowledge—that Lapp smelled of alcohol and that she refused to
perform field sobriety tests was sufficient to show that he had probable cause to
arrest her for DUI. See Farmer v. Commonwealth, 404 S.E.2d 371 (Va. Ct.
App. 1991), cited in Hammond v. Commonwealth, 439
S.E.2d 877, 878-79 (Va. Ct. App. 1994) (noting that “evidence of
the accused’s refusal to take the
test or his actions in voluntarily performing
the non-required field sobriety test may be relevant to prove the
accused’s guilt or innocence”) (emphasis in original).
Furthermore, Lapp admitted to having driven and to having
hit two other cars. See State v. Sawyer,
283 S.C. 127, 129, 322 S.E.2d 449, 449 (1984) (“[T]he
driver’s admission [that he had been driving] should be treated as part of the
officer’s sensory awareness of the commission of the offense which satisfies
the presence requirement [under § 56-5-2950].”) (emphasis in original); see also Fradella
v. Town of Mount Pleasant, 325 S.C. 469,
482 S.E.2d 53 (Ct. App. 1997) (holding that a driver’s admission to police that
the driver was involved in a collision, made twenty minutes after the collision
and not at the scene of the collision, was sufficient to justify a warrantless
arrest for DUI, when coupled with the officers’ other observations).
the fact that Officer Simmons did not specifically testify that Lapp was
unsteady on her feet or that Lapp had slurred speech or bloodshot eyes did not
preclude a finding of probable cause. Whether probable cause exists depends
upon the “totality of the circumstances”―not the existence of a
particular set of facts. See Baccus, 367 S.C. at 49, 625 S.E.2d
at 220. Our appellate courts have found probable cause to arrest for DUI in
cases where there was no mention of evidence that the motorist was unsteady on
his feet or that he had slurred speech or bloodshot eyes. See, e.g., Kelly v. S.C. Dep’t of Highways, 323 S.C. 334, 474 S.E.2d 443 (Ct. App.
1996); State v. Parker, 271 S.C. 159, 245 S.E.2d 904 (1978).
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 Lapp’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.
the foregoing reasons, it is
ORDERED that the DMVH’s Final Order and Decision is AFFIRMED.
IS SO ORDERED.
Paige J. Gossett
September 23, 2008
Columbia, South Carolina