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) (Rev. 2006). The Department claims that the
DMVH erroneously rescinded the driver’s license suspension of Respondent Eddie
L. King (“King”). The Administrative Law Court (“ALC” or “Court”) 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.
BACKGROUND
On March 24, 2007, Officer Clyde R. Cochrane (“Officer Cochrane”)
was dispatched to the scene of an accident on Highway 6 in Berkeley County, South Carolina. Upon arriving at the scene, Officer Cochrane determined that King was the
operator of one of the vehicles involved in the accident. Shortly thereafter,
Officer Cochrane concluded that King was highly intoxicated, whereupon he
pulled King from the vehicle in order to conduct field sobriety testing.
Officer Cochrane advised King of his Miranda rights. King was unresponsive to
Officer Cochrane’s requests and would not submit to testing. As a result,
Officer Cochrane arrested King for Driving Under the Influence (“DUI”) and
transported him to the Berkeley County Jail where Officer Cochrane initiated
the breath-testing sequence.
Officer Cochrane is a certified DataMaster operator. At
the jail, he read King his implied consent rights and again read him his
Miranda rights. Officer Cochrane then furnished a copy of the implied consent
advisement form to King. King refused to submit to a breath test. Based on this
refusal, Officer Cochrane issued King a Notice of Suspension pursuant to S.C.
Code Ann. § 56-5-2951(A) (Rev. 2006).
Thereafter,
pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (Rev. 2006), King filed a request
for an administrative hearing to challenge the suspension. An administrative
hearing was held on April 30, 2007. Officer Cochrane appeared at the hearing
on behalf of the Department, but was not assisted by counsel. King was
represented by his attorney at the hearing.
On May
3, 2007, the DMVH hearing officer issued a Final Order and Decision, in which she
held the following:
I find that Trooper
Cochrane has not met the burden of proof in this case. He testified that he was
called to the scene of an accident. Upon his arrival he determined that
Respondent was very intoxicated. The trooper did not offer any testimony to
show that Respondent’s mental or physical abilities were materially impaired
due to the ingestion of alcohol or drugs or a combination of both. There was no
evidence of attributes usually indicative of alcohol use such as: odor of
alcohol, slurred speech, red bloodshot eyes or being unsteady on his feet.
There was no evidence to show why the officer believed Respondent’s bad driving
to be because his faculties were materially or appreciably impaired because of
alcohol use. There was no evidence offered to support the officer’s opinion
that the Respondent was very intoxicated. I conclude that the Officer has not
met the burden of proof in this case. Accordingly, the relief requested by the
Respondent must be granted.
(R. at 22, 23).
The
Department now appeals.
ISSUE
ON APPEAL
1. Did
the hearing officer err in concluding that appellant was not lawfully arrested?
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. 2007). 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. 2007); 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. 2007).
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. 2007).
DISCUSSION
Summary
of Applicable Law
The license to
operate a motor vehicle upon South Carolina's public highways is not a property right, but is a mere
privilege subject to reasonable regulations in the interests of public safety
and welfare. Sponar v. S.C. Dep't of Pub.
Safety, 361 S.C. 35,
39, 603 S.E.2d 412, 415 (Ct. App. 2004) (quoting 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)), cert.granted,
(Nov. 17, 2005). Consistent with this principle, S.C. Code
Ann. § 56-5-2950(a) (Rev. 2006) provides,
in pertinent part:
A person who drives a motor vehicle in this State is
considered to have given consent to chemical tests of his breath, blood, or
urine for the purpose of determining the presence of alcohol or drugs or the
combination of alcohol and drugs if arrested for an offense arising out of acts
alleged to have been committed while the person was driving a motor vehicle
while under the influence of alcohol, drugs, or a combination of alcohol and
drugs. A breath test must be administered at the direction of a law enforcement
officer who has arrested a person for driving a motor vehicle in this State
while under the influence of alcohol, drugs, or a combination of alcohol and drugs.
S.C. Code Ann. § 56-5-2950(a) (Rev. 2006).
Under S.C. Code Ann. § 56-5-2951(A) (Rev. 2006),
the driver’s license of a motorist who refuses to submit to the testing
required under Section 56-5-2950(a) must be immediately suspended. However, under S.C. Code Ann. § 56-5-2951(B)(2) (Rev. 2006), a motorist who
has his license so suspended may request an administrative hearing to challenge
the suspension. If such a hearing is requested, the scope of the hearing must
be limited to whether the person: (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).
Probable Cause
The Department argues that the DMVH hearing officer
erroneously determined that the Department failed to establish that King was
lawfully arrested for DUI. I agree.
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 Cochrane testified without objection that: (i)
he observed that a vehicle operated by King had been involved in a collision;
(ii) King appeared to be very intoxicated; (iii) when asked to perform sobriety
tests, King was unresponsive.
This testimony sufficiently demonstrated that Officer Cochrane
had probable cause to arrest King for DUI. The question before the hearing officer
was not whether King was guilty of DUI, but whether the circumstances within
Officer Cochrane’s knowledge were sufficient to lead a reasonable person to
believe that King had committed the offense of DUI. See Summersell v. S.C. Dep't of Pub.
Safety, 334 S.C.
357, 368-69, 513 S.E.2d 619, 625 (Ct. App. 1999), vacated in part on other grounds, 337 S.C. 19,
522 S.E.2d 144 (1999). Because Officer Cochrane's
testimony provided that King was operating a vehicle that
was involved in a collision, that King appeared to be very intoxicated, and
that King was unresponsive to Officer Cochrane’s requests, it was clearly
sufficient to establish probable cause for a DUI arrest. The fact that Officer Cochrane did not
specifically testify that King smelled of alcohol, or that he had bloodshot
eyes or slurred speech, did not preclude a finding of probable cause. See, e.g., State v. Parker, 271 S.C. 159, 245 S.E.2d 904
(1978) (finding probable cause to arrest for DUI where officer observed motorist's vehicle drive across the
middle of a two-lane road and officer had previously received tip that motorist
was driving while intoxicated); State v. Martin, 275 S.C. 141, 268 S.E.2d 105
(1980) (holding that DUI arrest was lawful
where officer, who had been dispatched to the scene of a reported accident,
found motorist to be “highly intoxicated” and where motorist admitted that he
was the driver of one of the vehicles involved in the accident).
Moreover, because Officer Cochrane's testimony alone was
sufficient to establish probable cause, there was no need for corroborating evidence. See, e.g., State v. Goodstein, 278 S.C. 125, 292 S.E.2d 791
(1982). Therefore, the DMVH hearing officer's conclusion that the
Department failed to establish that there was probable cause to arrest was
clearly erroneous in view of the reliable, probative, and substantial evidence
on the whole record.
Accordingly, the DMVH's Final Order and Decision must be
reversed.
ORDER
It is HEREBY
ORDERED that the DMVH’s Final Order and Decision is REVERSED and the
Department’s suspension of King’s driver’s license is reinstated.
AND IT IS SO
ORDERED.
______________________________
John D. McLeod
Administrative
Law Judge
February 19, 2008
Columbia, South Carolina
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