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 issued its Final Order and Decision following an
administrative hearing conducted pursuant to S.C. Code Ann. § 56-5-2951(B)(2)
(2006). The Department claims that the DMVH hearing officer erroneously
rescinded the suspension of the driver’s license of Respondent Shannon
Valentine (“Valentine”). The Administrative Law Court (“ALC” or “Court”) has
jurisdiction to hear this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp.
2006). For the following reasons, the Final Order and Decision of the DMVH is reversed.
BACKGROUND
On
June 28, 2006, Officer John D. Burgess (“Officer Burgess”), a senior patrol officer
for the City of Spartanburg, observed a blue, four-door Toyota Camry proceed
through the red light at the intersection of Daniel Morgan Avenue and Henry
Street in Spartanburg. He then observed the vehicle proceeding on Daniel Morgan Avenue at a high rate of speed. Officer Burgess stopped the vehicle due to
its failure to stop for the red light and its high rate of speed. At that
time, Valentine, who had been driving the vehicle, admitted to Officer Burgess
that she had been drinking. Officer Burgess observed that Valentine was “very
intoxicated.” He then asked Valentine to perform three field sobriety tests,
and Valentine failed all three tests. Officer Burgess arrested Valentine for
driving under the influence (“DUI”), and he transported her to the Spartanburg
County Jail. Valentine refused to submit to a breath test. Based on this
refusal, Officer Burgess issued to Valentine a Notice of Suspension pursuant to
S.C. Code Ann. § 56-5-2951(A) (2006).
Thereafter,
pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (2006), Valentine filed a request
for an administrative hearing to challenge the suspension. On August 14, 2006,
the Division of Motor Vehicle Hearings conducted an administrative hearing. Officer
Burgess appeared at the hearing on behalf of the Department, but he was not
assisted by counsel.
At
the hearing, Officer Burgess provided the following testimony regarding the
implied consent advisement that he provided to Valentine:
I proceeded to the County jail as she
was given . . . I read the implied consent form word for word for her. She
signed it at the bottom . . . .
Officer Burgess
introduced a copy of the Advisement of Implied Consent Rights form, which was
admitted into evidence as Exhibit # 3. The form contained an advisement for
DUI and a separate advisement for Felony DUI. When questioned on
cross-examination, Officer Burgess testified that he read everything on the
Advisement of Implied Consent Rights form that pertains to DUI. Under the DUI
Advisement, the word “breath” had been circled within the statement “Inform
subject of the type (breath, blood, urine) samples requested[,]” and the word
“alcohol” had been circled within the statement “The arresting officer has
directed that samples be taken for alcohol and/or drug testing.”
On August
21, 2006, the DMVH hearing officer served the parties with a Final Order and
Decision, in which he rescinded Valentine’s suspension based on his conclusion
that the Department failed to meets its burden of proof:
The Implied Consent Warning (State’s
Exhibit # 3) has two (2) Implied Consent Warnings on the form. There was no
evidence corroborating Officer Burgess’ testimony concerning which Implied
Consent Warning was given to the Respondent. Petitioner’s Witness never
testified that Respondent’s mouth was checked before the test was offered.
There was no testimony as to Respondent’s demeanor other than she was very
intoxicated. There was no testimony or evidence entered as to the smell of
alcohol, slurred speech, bloodshot eyes, red eyes, being unsteady on her feet
or any other reason that would have made the Officer believe that Respondent
was very intoxicated. No testimony as to whether or not Respondent failed or
passed the field sobriety tests that had been offered to her on the night of
her arrest. I conclude as a matter of law that the Petitioner has failed to
meet its burden of proof. Accordingly the relief requested by the Respondent
must be granted.
The Department now
appeals.
ISSUE
ON APPEAL
Did the hearing officer err in
concluding that the Department failed to carry its burden of proof?
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). 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).
DISCUSSION
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); 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 person
who drives a motor vehicle in this State implicitly consents to a chemical test
of his breath, blood or urine for the purpose of determining the presence of
alcohol or drugs. The statute requires that, at the direction of the arresting
officer, a breath test be administered to a motorist arrested for DUI. 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:
(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); S.C. Dep’t of Motor Vehicles v. Nelson, 364 S.C. 514, 526, 613 S.E.2d
544, 550 (Ct. App. 2005). Therefore, the Department’s burden of proof in a
hearing conducted pursuant to S.C. Code Ann. § 56-5-2951 (2006) is limited to these
three questions when the suspension is based on the motorist’s refusal to
submit to chemical testing.
For the reasons that follow, I conclude that the Department met its burden of
proof on these three questions and that the hearing officer’s conclusion to the
contrary was clearly erroneous in view of the reliable, probative and
substantial evidence on the whole record.
Lawfulness of
Arrest
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, 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).
In the instant case, the testimony indicates that Officer
Burgess stopped the vehicle that Valentine was driving because he had observed
it run a red light and proceed at a high rate of speed. After Officer Burgess
stopped the vehicle, Valentine admitted to him that she had been drinking. His
observation that she was very intoxicated was confirmed by the fact that she
failed three field sobriety tests. Therefore, the failure of Officer Burgess
to testify as to particular characteristics of Valentine’s intoxicated demeanor
did not prevent a finding of probable cause to arrest Valentine. Notably, in
his Final Order and Decision, the hearing officer specifically found that
Valentine was very intoxicated when Officer Burgess stopped her vehicle. Even
without such a finding, the Record shows an overwhelming totality of
circumstances supporting the lawfulness of the arrest.
Implied
Consent Advisement
Section
56-5-2950 is widely called the “implied consent” statute,” and the rights set forth in Section 56-5-2950 are commonly referred to as
“implied consent” rights.
However, according to Implied Consent Policy 8.12.5(D) of the South Carolina
Law Enforcement Division (“SLED”), there are actually eight different situations in which an “implied consent”
test can be requested, and SLED has drafted a separate advisement for each
different situation. SLED has named these eight advisements as follows: (1)
DUI Advisement; (2) Felony DUI Advisement; (3) Commercial Driver’s License
Advisement; (4) Zero Tolerance Advisement; (5) Boating Under the Influence
(“BUI”) Advisement; (6) BUI Involving Death, Bodily Injury, or Property Damage
Advisement; (7) Flying Under the Influence Advisement; and (8) Shooting Under
the Influence Advisement. SLED Implied Consent Policy 8.12.5(D). Of these eight
different advisements, it is the DUI Advisement that sets forth the rights
enumerated in Section 56-5-2950.
In
the instant case, Exhibit # 3 contains both the DUI advisement and the Felony
DUI advisement. However, there is nothing in the record that suggests that
Officer Burgess either read the wrong advisement or misunderstood any of the
facts relevant to determining which advisement to read. Therefore, the hearing
officer had no reason to question which advisement Officer Burgess had selected
from the Advisement of Implied Consent Rights form. See, e.g., S.C.
Nat’l Bank v. Florence Sporting Goods, Inc., 241 S.C. 110, 115-16, 127
S.E.2d 199, 202 (1962) (holding that, in absence of proof to contrary, public
officers are presumed to have properly discharged duties of their offices and to
have faithfully performed duties with which they are charged).
In
any event, the evidence in the record, when taken together, shows that Officer
Burgess properly provided the DUI Advisement to Valentine. Officer Burgess
testified that he arrested Valentine for DUI. He never testified that he
arrested Valentine for Felony DUI. During cross-examination, Valentine’s
attorney asked Officer Burgess if he had read everything on the Advisement of
Implied Consent Rights form. Significantly, Officer Burgess qualified his
affirmative response with the words “[t]hat pertains to driving under the influence.”
Further, selected words were circled under the DUI Advisement but not under the
Felony DUI Advisement; and Valentine’s signature appears at the bottom of the
form, indicating that she received a copy of it. Moreover, the fact that
Valentine refused testing, and was allowed to do so by Officer Burgess, is
inconsistent with any notion that Officer Burgess read the Felony DUI
Advisement. The Felony DUI Advisement does not inform motorists that they have
the right to refuse chemical testing, but rather states that motorists “must”
submit to testing. Therefore, the Department carried its burden of proving
that Valentine was properly advised of the rights enumerated in Section
56-5-2950.
Refusal
Based
on the foregoing, the hearing officer’s conclusion that the Department failed
to carry its burden of proof was clearly erroneous in view of the reliable,
probative and substantial evidence on the whole record. Because this
conclusion requires reversal, this Court need not address Appellant’s remaining
arguments. See Commander Health Care Facilities, Inc. v. South
Carolina Department of Health and Environmental Control, 370 S.C. 296, 634 S.E.2d 664 (Ct. App. 2006) (citing Whiteside v. Cherokee County School Dist. No. One, 311 S.C. 335, 428
S.E.2d 886 (1993)) (declining to address remaining argument after resolving
dispositive issue).
ORDER
IT
IS THEREFORE ORDERED that that the Final Order and Decision of the DMVH is REVERSED.
IT
IS FURTHER ORDERED that the Department’s suspension of Valentine’s driver’s
license be reinstated.
AND
IT IS SO ORDERED.
______________________________
JOHN
D. GEATHERS
Administrative
Law Judge
October 15, 2007
Columbia, South Carolina
Although this issue was sufficiently argued in Appellant’s brief, it was not
listed in Appellant’s “Statement of the Issues on Appeal.” ALC Rule 37(B)(1)
states that, ordinarily, no point will be considered that is not set
forth in the statement of issues on appeal. (emphasis added). However, this
is not an ordinary case because the evidence pertaining to the questions on
which the Department had the burden of proof was overwhelming.
In an administrative hearing conducted pursuant to Section 56-5-2951, the
Department bears the burden of proof. S.C. Dep’t of Motor Vehicles v.
Kirschmann, 06-ALJ-21-0185-AP (June 20, 2006); see also Summersell
v. S.C. Dep’t of Pub. Safety, 334 S.C. 357, 368, 513 S.E.2d 619, 625 (Ct.
App. 1999), (stating that, with respect to S.C. Code Ann. § 56-5-2950(e)
(1991), a precursor to the current Section 56-5-2951(F), once the Department
has made a showing as to the three elements, jurisdiction has been
established), vacated in part on other grounds, 337 S.C. 19, 522 S.E.2d
144 (1999).
See Record on Appeal, Exhibit # 3.
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