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”) issued December 19, 2007. 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 Administrative Law Court
(“ALC”) has jurisdiction to hear 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 reversed.
October 30, 2007, Officer Ron P. Walker of the Lexington Police Department
observed Aun’s vehicle traveling left over the center line. Officer Walker
conducted a traffic stop of Aun and, based on his investigation, Officer Walker
determined that Aun’s faculties were impaired. Officer Walker arrested Aun and
transported him to the Lexington County Detention Center.
arriving at the Lexington County Detention Center, Aun was provided the Implied
Consent Advisement in writing. Aun informed Officer Walker that he did not
want to take the breath test. Officer Walker then recorded the incident as a
refusal and issued Aun a Notice of Suspension in accordance with S.C. Code Ann.
§ 56-5-2951(A) (2006).
to S.C. Code Ann. § 56-5-2951(B)(2) (2006), Aun filed a request for an
administrative hearing to challenge the suspension. The DMVH held an
administrative hearing on November 26, 2007. At the hearing, Officer Walker
testified that Aun’s faculties were materially and appreciably impaired at the
time Officer Walker conducted the traffic stop. However, Officer Walker did
not provide any specific testimony regarding Aun’s behavior that led to Officer
Walker’s conclusion that Aun was under the influence of either drugs or alcohol.
December 19, 2007, the DMVH Hearing Officer issued a Final Order and Decision rescinding
Aun’s suspension. Specifically, the DMVH Hearing Officer stated:
[Officer Walker] failed to present
testimony or evidence to show why he believed [Aun] was operating his vehicle
under the influence of alcohol or drugs. The fact that [Aun’s] vehicle
traveled left of center is a factor used by the officer but it was the only
factor mentioned by the officer. He failed to show how [Aun] was appreciably
impaired. He gave no facts of characteristics or attributes usually associated
with someone under the influence of alcohol. There was no testimony of an odor
of alcohol, bloodshot eyes or unsteadiness on his feet. Moreover, he did not
administer field sobriety tests. The fact that a vehicle traveled left of
center does not equate to a Driving under the influence violation. [Aun] was
not lawfully arrest[ed] for Driving under the influence.
Did the DMVH Hearing
Officer err in rescinding Aun’s suspension based on his finding that Aun was
not lawfully arrested?
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).
Department argues that the DMVH Hearing Officer erred in rescinding Aun’s
suspension based on his finding that Aun was not lawfully arrested. The court
agrees. 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).
Officer Walker testified, and the DMVH Hearing Officer found, that: (i) on October
30, 2007, Officer Walker observed Aun crossing the center line; and (ii) after
pulling Aun over, Officer Walker noted that Aun’s faculties were impaired.
Taken together, Officer Walker’s testimony demonstrated that Aun’s arrest for
DUI was lawful. The question before the DMVH Hearing Officer was not whether Aun
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 Walker’s knowledge were sufficient to lead a
reasonable person to believe that Aun had committed the offense of DUI. See Baccus, 367 S.C. at 49, 625 S.E.2d at 220. The fact that Officer Walker
did not specifically testify that Aun was unsteady on his feet or that Aun 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., State v. Parker, 271
S.C. 159, 245 S.E.2d 904 (1978) (holding that the officer’s observation of the
motorist driving across the center line “alone was
sufficient to justify stopping and arresting the [motorist]”)
the DMVH Hearing Officer erred in holding that Aun was not lawfully arrested
for driving under the influence. 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).
the foregoing reasons, it is
ORDERED that the DMVH’s Final Order and Decision is REVERSED and the
Department’s suspension of Aun’s driver’s license is reinstated.
IS SO ORDERED.
Paige J. Gossett
September 22, 2008
Columbia, South Carolina