Saturday, June 23, 2018

SC Administrative Law Court Decisions

SCDMV vs. Fred Joseph Aun

South Carolina Department of Motor Vehicles

South Carolina Department of Motor Vehicles

Fred Joseph Aun





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”) 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.


On 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.

Upon 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).

Pursuant 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.

On 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.

The Department now appeals.


Did the DMVH Hearing Officer err in rescinding Aun’s suspension based on his finding that Aun was not lawfully arrested?


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).

The 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).

Here, 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.[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 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]”) (emphasis added).

Thus, 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).


For 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.



Paige J. Gossett

Administrative Law Judge

September 22, 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; however, the court need not address this apparent discrepancy because the issue of whether Aun was driving a motor vehicle is not before the court.

[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).