Friday, June 22, 2018

SC Administrative Law Court Decisions

Amy Lynn Lapp vs. SCDMV

South Carolina Department of Motor Vehicles

Amy Lynn Lapp

South Carolina Department of Motor Vehicles





This 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.


On 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).

Pursuant 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.

On 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 influence.

Lapp now appeals.


1.      Did the DMVH Hearing Officer err when she found that there was sufficient evidence to support a warrantless arrest without other corroborating evidence?

2.      Did the DMVH Hearing Officer err in finding that there was sufficient probable cause for an arrest for Driving Under the Influence?


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 (as amended 2008)[1]; 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 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(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).


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,[2] 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).

Here, 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.

Nor 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).

By 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.

The question before the DMVH Hearing Officer was not whether Lapp was guilty of DUI.[3] 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).

Moreover, 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).


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 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. 1990).

For the foregoing reasons, it is

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



Paige J. Gossett

Administrative Law Judge

September 23, 2008

Columbia, South Carolina

[1] The APA was amended and renumbered via 2008 S.C. Act No. 334. Accordingly, all citations to the APA in this Order are to the recently amended and renumbered sections.

[2] Whether or not the Department must prove the second element set forth in Nelson is not completely clear in light of other South Carolina appellate cases. For instance, in Summersell v. South Carolina Department of Public Safety, 334 S.C. 357, 513 S.E.2d 619 (Ct. App.), vacated in part on other grounds, 337 S.C. 19, 522 S.E.2d 144 (1999), the Court of Appeals rejected a motorist’s claim that the Department of Public Safety was required to prove, at an implied consent hearing, that he had been driving. Specifically, the court held that “[n]othing in the statutory provisions requires a specific finding [that] the individual was operating a motor vehicle in this state.” Summersell, 334 S.C. at 368, 513 S.E.2d at 625. Additionally, in State v. Martin, 275 S.C. 141, 147, 268 S.E.2d 105, 108 (1980), the Supreme Court held that “[t]he mere fact that the [breathalyzer] test was not made at the direction of an officer who actually viewed the respondent’s vehicle in motion does not render the test illegal.”

[3] The “materially and appreciably impaired” standard is the standard used in criminal cases to determine if a motorist is guilty of DUI. See S.C. Code Ann. § 56-5-2930 (2006); see also State v. Salisbury, 343 S.C. 520, 524, 541 S.E.2d 247, 248-49 (2001).