SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This is an appeal by the South Carolina Department of Motor Vehicles (Department) from a Final Order and Decision (order) of the South Carolina Division of Motor Vehicle Hearings (DMVH). The DMVH issued its order 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 The Department claims that the DMVH hearing officer erroneously rescinded the suspension of the driver’s license of Respondent Kelly Dedra Mudd (Mudd). 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 DMVH’s order is reversed.

BACKGROUND

On June 20, 2006, at approximately two minutes after midnight, South Carolina Highway Patrol Trooper Richard Martin (Trooper Martin) observed a gray Nissan Altima traveling south on U.S. Highway 17 near Murrells Inlet at a high rate of speed. The vehicle, driven by Mudd, shifted lanes between two other vehicles without using a turn signal. Trooper Martin stopped the vehicle and noticed that Mudd’s movements were slow and sloppy and that she appeared to be intoxicated. Trooper Martin arrested Mudd for driving under the influence (DUI) and transported her to the Georgetown County Detention Center. Mudd refused to submit to a breath test. Based on this refusal, Trooper Martin issued Mudd a Notice of Suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (2006).

Pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (2006), Mudd filed a request for an administrative hearing to challenge the suspension. On August 21, 2006, the DMVH conducted an administrative hearing. Trooper Martin appeared on behalf of the Department but was not assisted by counsel.

On August 30, 2006, the DMVH hearing officer served the parties with his order rescinding Mudd’s suspension based on his conclusion that the Department failed to meet its burden of proof:

Trooper Martin testified that the Respondent seemed intoxicated and that the Respondent had slow and sloppy movements. There was no testimony as to what made the Respondent seem to be intoxicated. Slow and sloppy movements alone are not a test to discover whether an individual is intoxicated or not. No testimony or evidence was presented as to an odor of alcohol, blood-shot eyes, slurred speech, etc. No testimony or evidence was presented as to the Respondent being materially and appreciably impaired; therefore, a lawful arrest for Driving Under the Influence has not been proven. I conclude as a matter of law that the Petitioner has failed to meet its burden of proof. Accordingly, the relief requested by Respondent must be granted.

The Department appeals.

ISSUES ON APPEAL

1. Does the Department have standing to appeal the DMVH order?

2. Did the Department fail to appear at the DMVH administrative hearing and thereby waive its right to appeal the order?

3. 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 DMVH decisions. 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).[1] 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

Implied Consent

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 & -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 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); S.C. Dep’t of Motor Vehicles v. Nelson, 364 S.C. 514, 526, 613 S.E.2d 544, 550 (Ct. App. 2005).

Standing

Mudd maintains that, because the Department is not a "person" for purposes of S.C. Code Ann. § 56-5-2951(G) (2006), it has no standing to appeal a DMVH order. Section 56-5-2951(G) provides that an administrative hearing "is a contested case proceeding under the Administrative Procedures Act, and a person has a right to appeal the decision of the hearing officer pursuant to that act to the Administrative Law Court in accordance with its appellate rules.” (emphasis added). Mudd then points to S.C. Code Ann. § 1-23-310(6) (2005), which defines a person as “any individual, partnership, corporation, association, governmental subdivision, or public or private organization of any character other than an agency.” (emphasis added). Mudd argues that the Department is an “agency” rather than a “person” with standing to appeal under S.C. Code Ann. § 56-5-2951(G) (2006). However, S.C. Code Ann. § 1-23-310(2) (2005) defines an agency as “each state board, commission, department or officer, other than the legislature or the courts, but to include the [A]dministrative [L]aw [Court], authorized by law to determine contested cases.” (emphasis added).

The cardinal rule of statutory interpretation is to determine the intent of the legislature. Georgia-Carolina Bail Bonds, Inc. v. County of Aiken, 354 S.C. 18, 22, 579 S.E.2d 334, 336 (Ct. App. 2003). The real purpose and intent of the lawmakers will prevail over the literal import of the words. Browning v. Hartvigsen, 307 S.C. 122, 125, 414 S.E.2d 115, 117 (1992). Statutes dealing with the same subject matter are in pari materia and must be construed together, if possible, to produce a single, harmonious result. Howell v. U.S. Fid. & Guar. Ins. Co., 370 S.C. 505, 636 S.E.2d 626 (2006). If the language of an act gives rise to doubt or uncertainty as to legislative intent, the construing court may search for that intent beyond the borders of the act itself. Liberty Mut. Ins. Co. v. S.C. Second Injury Fund, 363 S.C. 612, 624, 611 S.E.2d 297, 303 (Ct. App. 2005). Any ambiguity in a statute should be resolved in favor of a just, beneficial, and equitable operation of the law. Id. Courts will reject a statutory interpretation which would lead to a result so plainly absurd that it could not have been intended by the legislature or would defeat the plain legislative intention. Unisun Ins. Co. v. Schmidt, 339 S.C. 362, 368, 529 S.E.2d 280, 283 (2000).

While the Department is a state agency in the general sense, it is not an agency for APA purposes with respect to license suspensions under Section 56-5-2951. In 2005, the legislature transferred decision-making authority in contested cases under Section 56-5-2951 from the Department to the DMVH. See 2005 Act No. 128, § 22 (eff. July 1, 2005) (transferring the Department’s hearing officers to the Division of Motor Vehicle Hearings under the ALC). Therefore, the Department is not excluded from the APA's definition of a person. Therefore, Mudd's argument against the Department's standing to appeal must fail.

Appearance at Administrative Hearing

Mudd argues that the Department waived its right to appeal the order because it failed to appear at the administrative hearing. This argument is patently without merit. The only two parties to the case were the Department and Mudd, and Trooper Martin did not testify in support of Mudd's case challenging her driver's license suspension. Trooper Martin’s obvious purpose in appearing at the hearing was to give testimony in support of the suspension of Mudd’s driver’s license. While Trooper Martin was responsible for issuing the Notice of Suspension to Mudd, it was the duty of the Department to perform the actual suspension of Mudd's driver's license. S.C. Code Ann. § 56-5-2951(A) (2006). Therefore, Trooper Martin's submission of evidence in support of the suspension served as an appearance on the Department’s behalf. His employment status with a separate state agency does not disqualify him from appearing on behalf of the Department.

Lawfulness of Arrest

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) (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). In the instant case, the hearing officer concluded that the Department failed to carry its burden of proof on the lawfulness of Mudd's 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 hearing officer did not discuss probable cause in his order. Rather, he merely concluded that the Department was required to present evidence that Mudd was "materially and appreciably impaired." See S.C. Code Ann. § 56-5-2930 (2006) (prohibiting the operation of a motor vehicle while under the influence of alcohol or other substances causing impairment to the extent that the person's faculties to drive are materially and appreciably impaired). While it was necessary for the Department to present evidence that Mudd was materially and appreciably impaired, the quantum of evidence need not have risen to the level required for a criminal conviction, but rather need only have established that a reasonable and cautious person would have believed that Mudd was materially and appreciably impaired. See Thompson v. Smith, 345 S.E.2d at 502.

"Impairment" is defined as the fact or state of being damaged, weakened or diminished. Black's Law Dictionary (8^th ed. 2004). "Intoxication" is similarly defined as a diminished ability to act with full mental and physical capabilities because of alcohol or drug consumption. Id. If a driver appears to a law enforcement officer to be intoxicated, a reasonable and cautious law enforcement officer would certainly believe that the driver was materially and appreciably impaired. Significantly, the Final Order and Decision included a finding of fact that Mudd appeared intoxicated and was slow and sloppy in her movements just prior to arrest. Mudd has not challenged that finding of fact. Therefore, the finding is the law of the case,[2] and this Court may safely assume that the hearing officer believed Trooper Martin's testimony that Mudd appeared intoxicated at the time of her arrest.

Given his belief that Mudd appeared intoxicated when arrested, the hearing officer's conclusion that the evidence of the lawfulness of the arrest was insufficient was obviously affected by his failure to apply the probable cause standard and his improper application of a higher standard. See State v. Baccus, 625 S.E.2d at 220 (fundamental question in determining lawfulness of arrest is whether probable cause existed to make arrest and probable cause for warrantless arrest exists when circumstances within arresting officer’s knowledge are sufficient to lead reasonable person to believe that crime has been committed by person being arrested).

Based on the foregoing, the hearing officer’s conclusion that the Department failed to carry its burden of proof must be reversed because it is affected by an error of law. See S.C. Code Ann. § 1-23-380(A)(5) (Supp. 2006) (court may reverse or modify agency decision if substantial rights of the appellant have been prejudiced because administrative findings, inferences, conclusions, or decisions are affected by error of law). Because this conclusion requires reversal, this Court need not address Appellant’s remaining arguments. See Commander Health Care Facilities, Inc. v. S.C. Dep’t of Health & Envtl. 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 and the Department’s suspension of Mudd’s driver’s license is reinstated.

AND IT IS SO ORDERED.

______________________________

October 29, 2007 JOHN D. GEATHERS

Columbia, South Carolina Administrative Law Judge