ORDERS:
ORDER
STATEMENT OF THE CASE
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”). 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 The Department claims that the DMVH erroneously rescinded the driver’s license suspension of Respondent Angela Clark (“Clark”). The Administrative Law Court (“ALC” or “Court”) has jurisdiction to hear this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2006). Upon consideration of the Department’s brief, the DMVH’s Final Order and Decision is affirmed in part, reversed in part, and this case is remanded to the DMVH as set forth below.
BACKGROUND
On March 16, 2006, at approximately 2:52 a.m., Jacob Jackson (“Officer Jackson”) of the Port Royal Police Department was on routine patrol in Port Royal when he observed Clark’s vehicle traveling “at a high rate of speed” on Highway 802 in a 45 m.p.h. zone. After clocking Clark’s speed at 57 m.p.h. on his radar, Officer Jackson turned on his blue lights to pull Clark over. While Officer Jackson’s blue lights were on, Clark’s vehicle switched from lane one to lane two and then back to lane one, but it did not stop. Officer Jackson turned on his siren. Clark continued to drive over the Bell Bridge in Port Royal. At the foot of Bell Bridge, Clark pulled her vehicle over. Upon arriving at Clark’s vehicle, Officer Jackson asked Clark if she had been drinking. Although Clark denied that she had been drinking, Officer Jackson noticed a “strong odor” of alcohol coming from her. He arrested Clark for driving under the influence (“DUI”) and transported her to the Beaufort County Detention Center for a breath test.
Upon arriving at the Beaufort County Detention Center, Myron Devon Carter (“Deputy Carter”) of the Beaufort County Sheriff’s Department administered a DataMaster test to Clark. Clark was advised of her Miranda warnings, and a twenty-minute waiting period was observed. Deputy Carter subsequently issued Clark a Notice of Suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (2006) for refusing to submit to breath testing.
Thereafter, pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (2006), Clark filed a request for an administrative hearing to challenge the suspension. An administrative hearing was held on April 12, 2006. On May 12, 2006, the DMVH hearing officer issued a Final Order and Decision, in which he rescinded Clark’s suspension. Specifically, he concluded that: (i) the Department bore the burden of proof in the proceeding; (ii) there was “no substantial evidence” that Clark was lawfully arrested and no evidence “corroborating” Officer Jackson’s testimony concerning the lawfulness of Clark’s arrest; and (iii) Deputy Carter did not advise Clark of her implied consent rights. The Department now appeals.
ISSUES ON APPEAL
1. Did the DMVH hearing officer err when he concluded that the Department bore the burden of proof in the underlying proceeding?
2. Did the DMVH hearing officer err when he concluded that there was “no substantial evidence” that Clark was lawfully arrested?
3. Did the DMVH hearing officer err when he concluded that Deputy Carter did not advise Clark of her implied consent rights?
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. 2006). 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. 2006); 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. 2006). 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(A)(5) (Supp. 2006).
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).
In 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.
DISCUSSION
Summary of Applicable Law
The license to operate a motor vehicle upon the public highways of this State is not a right, but a mere privilege that is subject to reasonable regulations in the interests of public safety and welfare. State v. Newton, 274 S.C. 287, 294, 262 S.E.2d 906, 910 (1980); Summersell v. S.C. Dep’t of Pub. Safety, 334 S.C. 357, 366, 513 S.E.2d 619, 624 (Ct. App. 1999), vacated in part on other grounds, 337 S.C. 19, 522 S.E.2d 144 (1999); State v. Kerr, 330 S.C. 132, 149, 498 S.E.2d 212, 220-21 (Ct. App. 1998). This privilege is always subject to revocation or suspension for any cause relating to public safety. S.C. State Hwy. Dep’t v. Harbin, 226 S.C. 585, 595, 86 S.E.2d 466, 470 (1955). However, it cannot be revoked arbitrarily or capriciously. Id.
Consistent with these principles, the Legislature enacted S.C. Code Ann. § 56-5-2950 (2006) and S.C. Code Ann. § 56-5-2951 (2006). Section 56-5-2950 declares that a motorist arrested for DUI implicitly consents to a chemical test of his breath, blood or urine for the purpose of determining the presence of alcohol or drugs, and it requires that, at the direction of the arresting officer, a breath test be administered to a motorist so arrested. S.C. Code Ann. § 56-5-2950(a) (2006). However, Section 56-5-2950 also provides that, before any type of chemical test is administered, the motorist must be informed in writing that:
(1) he does not have to take the test or give the samples, but that his privilege to drive must be suspended or denied for at least ninety days if he refuses to submit to the tests and that his refusal may be used against him in court; (2) his privilege to drive must be suspended for at least thirty days if he takes the tests or gives the samples and has an alcohol concentration of fifteen one-hundredths of one percent or more; (3) he has the right to have a qualified person of his own choosing conduct additional independent tests at his expense; (4) he has the right to request an administrative hearing within thirty days of the issuance of the notice of suspension; and (5) if he does not request an administrative hearing or if his suspension is upheld at the administrative hearing, he must enroll in an Alcohol and Drug Safety Action Program.
S.C. Code Ann. § 56-5-2950(a) (2006).
Section 56-5-2951, in turn, mandates that the driver’s license of a motorist who refuses to submit to a test required by Section 56-5-2950 be immediately suspended. See S.C. Code Ann. § 56-5-2951(A) (2006). However, Section 56-5-2951 also grants motorists the right to request an administrative hearing to challenge such suspensions. S.C. Code Ann. § 56-5-2951(B)(2) (2006). If such a hearing is requested, the scope of the hearing must be limited to whether the motorist: (1) was lawfully arrested or detained; (2) was advised in writing of the rights enumerated in Section 56-5-2950; and (3) refused to submit to a test pursuant to Section 56-5-2950. S.C. Code Ann. § 56-5-2951(F) (2006); see also S.C. Dep’t of Motor Vehicles v. Nelson, 364 S.C. 514, 526, 613 S.E.2d 544, 550 (Ct. App. 2005) (discussing S.C. Code Ann. § 56-5-2951(H) (Supp. 2002), a precursor to S.C. Code Ann. § 56-5-2951(F) (2006)). According to the South Carolina Supreme Court, a Section 56-5-2951 hearing should be “a summary proceeding designed to handle license revocation matters quickly.” See State v. Bacote, 331 S.C. 328, 333, 503 S.E.2d 161, 164 (1998).
Burden of Proof
The Department argues that the DMVH hearing officer erroneously determined that the Department bore the burden of proof in the underlying proceeding. Specifically, the Department argues that the burden of proof should have been imposed on Clark since Section 56-5-2951(A) does not grant the Department any discretion with respect to suspending a motorist’s license. The Department further argues that the issues listed in Section 56-5-2951(F) are the “motor vehicle hearings equivalent” to the grounds of appeal set forth in Section 1-23-380(A)(5). According to the Department, just as the burden of proof in a Section 1-23-380 appeal is imposed on the party who initiated the appeal, the burden of proof in a Section 56-5-2951(B)(2) hearing should similarly be imposed on the party who initiated the hearing.
This issue has been ruled on many times by the ALC. See, e.g., S.C. Dep’t of Motor Vehicles v. Kirschmann, 06-ALJ-21-0185-AP (June 20, 2006); S.C. Dep’t of Motor Vehicles v. Boyle, 06-ALJ-21-0340-AP (September 11, 2006); S.C. Dep’t of Motor Vehicles v. Heyward, 06-ALJ-21-0533-AP (February 9, 2007); S.C. Dep’t of Motor Vehicles v. Sherbert, 06-ALJ-21-0634-AP (March 14, 2007). In each case, ALC judges have held that the Department bears the burden of proof in implied consent hearings. In doing so, ALC judges have pointed out that Section 1-23-660 specifically requires DMVH hearing officers to conduct their hearings in accordance with the ALC’s rules of procedure, and that one of those rules, ALC Rule 29(B), expressly states: “In matters involving the assessment of civil penalties, the imposition of sanctions, or the enforcement of administrative orders, the agency shall have the burden of proof.” Because an administrative suspension of a motorist’s driver’s license is a “sanction,” ALC judges have concluded that the Department bears the burden of proof in implied consent hearings.
Moreover, ALC judges have rejected the Department’s argument that the issues listed in Section 56-5-2951(F) are the “motor vehicle hearings equivalent” to the grounds of appeal set forth in Section 1-23-380(A)(5). For instance, in Heyward, supra, this Court held:
Unlike Section 56-5-2951(F), Section 1-23-380(A)(5) does not apply to initial agency hearings; instead, it applies to appeals of final agency decisions that are issued after an agency hearing is held. Therefore, these two provisions are clearly not comparable.
(emphasis in original).
For these same reasons, I hold that the DMVH hearing officer did not err by placing the burden of proof on the Department in the underlying proceeding. Therefore, this portion of the hearing officer’s Final Order and Decision is affirmed.
Lawfulness of Arrest
The Department also argues that the DMVH hearing officer erred by concluding that Clark’s 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 (S.C. 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 Jackson testified, and the DMVH hearing officer found, that: (i) at approximately 2:52 a.m., Officer Jackson clocked Clark driving 57 m.p.h. in a 45 m.p.h. zone on his radar; (ii) Clark continued to make lane changes after Officer Jackson signaled her with his lights to stop; and (iii) after pulling Clark over, Officer Jackson smelled a “strong odor” of alcohol coming from Clark. Officer Jackson also testified, without objection, that Clark’s speech was “becoming very slurred.” Although the hearing officer did not make a specific finding regarding this latter bit of testimony, it was neither weakened on cross-examination nor contradicted.
Taken together, Officer Jackson’s testimony demonstrated that Clark’s arrest for DUI was lawful. Importantly, the question before the hearing officer was not whether the Department had proved that Clark 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”), 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 Jackson’s knowledge were sufficient to lead a reasonable person to believe that Clark had committed the offense of DUI. See Baccus, 367 S.C. at 49, 625 S.E.2d at 220. Because Officer Jackson’s testimony showed that Clark was speeding, that she smelled of alcohol, and that she possessed physical characteristics consistent with being intoxicated (i.e., slurred speech), it was clearly sufficient, as a whole, to establish probable cause for a DUI arrest. Cf. State v. Goodstein, 278 S.C. 125, 127, 292 S.E.2d 791, 792 (1982) (holding that there was “abundant testimony” to sustain the conclusion that motorist’s arrest for driving under the influence was lawful where arresting officer testified that the motorist was speeding, had a strong odor of alcohol about his person, had slurred speech, and was obnoxious and unsteady on his feet). Moreover, Officer Jackson’s testimony alone was sufficient to establish probable cause — there was no need for corroborating evidence. See id.
For these reasons, I hold that the DMVH hearing officer erred by concluding that Clark’s arrest for DUI was unlawful. Therefore, this portion of the hearing officer’s Final Order and Decision is reversed.
Implied Consent Rights Advisement
The Department further argues that the DMVH hearing officer erred by concluding that Deputy Carter did not advise Clark of her implied consent rights. Specifically, the Department asserts that “[b]ecause Respondent failed to raise the issue of whether Deputy Carter advised Respondent of her implied consent rights, it was improper for the [hearing officer] to address the issue in his conclusions of law.”
At the beginning of the hearing, the following exchange took place between the DMVH hearing officer and Clark’s attorney, Kenneth Tootle:
Hearing Officer: What issues are you contesting in the hearing . . . ?
Mr. Tootle: The issues of whether there was a lawful arrest, whether she was offered a breathalyzer and whether she refused.
Mr. Tootle: Okay. So all the issues.
Mr. Tootle: Yes.
Hearing Officer: All the issues will be contested. This is a refusal hearing only so those issues that the attorney read out that the officer will testify to . . .
Based on this exchange, I find that the DMVH hearing officer committed error. The hearing officer told the law enforcement officers, who were not assisted by counsel, that they should provide testimony as to those issues that Clark’s attorney “read out.” The hearing officer then rescinded Clark’s suspension because Deputy Carter failed to testify that Clark was advised of her implied consent rights, even though the issue of whether Clark was advised of her implied consent rights was not one of the issues that Clark’s attorney “read out.” Therefore, because the hearing officer made a misleading statement to the law enforcement officers regarding the issues being considered by the hearing officer, he committed error. See Murdock v. Murdock, 338 S.C. 322, 333, 526 S.E.2d 241, 248 (Ct. App. 1999) (“Procedural due process requires that a litigant be placed on notice of the issues which the court is to consider.”).
Furthermore, I find that the error committed by the hearing officer was prejudicial. The hearing officer’s statement telling the law enforcement officers to testify to those issues that Clark’s attorney “read out” could have reasonably caused Deputy Carter to believe that he did not need to testify as to whether Clark received her implied consent rights.
Because of this error, this portion of the DMVH hearing officer’s Final Order and Decision is reversed, and this case is remanded to the DMVH for a new evidentiary hearing on the issue of whether Clark was advised of her implied consent rights prior to being offered the DataMaster test. See Jean Hoefer Toal et al., Appellate Practice in South Carolina 290 (2d ed. 2002) (“An appellate court may remand a case for a new trial on any or all of the issues.”); Baker v. Weaver, 279 S.C. 479, 309 S.E.2d 770 (Ct. App. 1983) (remanding case for new trial where the trial judge committed “prejudicial error”). Remand is appropriate here, since it is not clear from the record as a whole that Clark waived this issue.
ORDER
It is hereby ordered that the DMVH’s Final Order and Decision is affirmed in part, reversed in part, and that this case is remanded for a new hearing solely on the issue of whether Clark was advised of her implied consent rights prior to being offered the DataMaster test.
AND IT IS SO ORDERED.
______________________________
John D. Geathers
Administrative Law Judge
July 20, 2007
Columbia, South Carolina
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