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DMVH erroneously rescinded the driver’s license suspension of Respondent Lawanda
M. Pipkins (“Pipkins” or “Respondent”). 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 May 21, 2007, Officer Clyde R. Dean (“Officer Dean”)
was dispatched to the scene of a traffic stop initiated by Officer Darren
Yarborough (“Officer Yarborough”) on Sumter Street in Florence County, South Carolina. Pipkins was the subject of the traffic stop. She was stopped after Officer
Yarborough observed her driving erratically. Upon arriving at the scene,
Officer Dean informed Pipkins that she was under investigation for Driving
Under the Influence (“DUI”). After reading Pipkins her Miranda rights, Officer
Dean asked Pipkins to submit to a series of standardized field sobriety tests.
Pipkins performed poorly on these tests. Shortly thereafter, Officer Dean
placed Pipkins under arrest for DUI, read Pipkins her Implied Consent rights,
and transported her to the Florence County Law Enforcement Center for further testing.
Officer Dean is a certified DataMaster operator. At the
law enforcement center, he again read Pipkins her Implied Consent and Miranda
rights, and furnished a copy of the Implied Consent advisement form to Pipkins.
Pipkins refused to submit to a breath test.
Based on this refusal, Officer Dean issued Pipkins 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), Pipkins filed a
request for an administrative hearing to challenge the suspension. An administrative
hearing was held on July 18, 2007. Officer Dean appeared at the hearing on behalf
of the Department, but was not assisted by counsel. Pipkins was represented by
her attorney at the hearing.
On July
20, 2007, the DMVH hearing officer issued a Final Order and Decision, in which he
held the following:
The Petitioners
failed to present evidence or testimony that probable cause existed that the
Respondent was under the influence of alcohol to the extent that her faculties
to drive were materially and appreciably impaired. The Arresting Officer never
testified as to why the Respondent was arrested for driving under the
influence. The Arresting Officer did testify that the Respondent was driving
her car in an erratic manner. There is no testimony as to what made the
arresting officer decide to perform several field sobriety tests. The Arresting
Officer never testified to the odor or smell of alcohol on the Respondent’s
person, nor did he describe the appearance or demeanor of the Respondent as
unusual, or that there was an indication of the use of alcohol, e.g., slurred
speech, bloodshot eyes, unkept [sic] clothes, trouble finder her driver’s
license or registration, belligerent, or giddy. The officer did testify that
she failed the field sobriety tests, but there was still no testimony as to her
apparent condition or how he determined the field sobriety tests were not
performed satisfactorily. The Petitioners failed to meet the burden of proof
that the Respondent was lawfully arrested for Driving under the Influence….Accordingly,
the relief requested by the Respondent must be granted.
(R. at 25, 26).
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 Pipkins 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 Dean testified that: (i) he was dispatched to
the traffic stop in order to assist Officer Yarborough who observed Pipkins
driving erratically; (ii) Pipkins failed all of the field sobriety tests.
This testimony sufficiently demonstrated that Officer Dean
had probable cause to arrest Pipkins for DUI. The question before the hearing
officer was not whether Pipkins was guilty of DUI, but whether the circumstances
within Officer Dean’s knowledge were sufficient to lead a reasonable person to
believe that Pipkins 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 Dean's
testimony provided that Pipkins was driving erratically
and that she failed all of the field sobriety tests, it was clearly sufficient
to establish probable cause for a DUI arrest. The fact that Officer Dean did not
specifically testify that Pipkins smelled of alcohol, or that she 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 Dean'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 Pipkins’ driver’s license is reinstated.
AND IT IS SO
ORDERED.
______________________________
John D. McLeod
Administrative
Law Judge
February 25, 2008
Columbia, South Carolina
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