ORDERS:
ORDER
STATEMENT
OF THE CASE
In
this appeal, Michael Bradley Morris Knight (“Knight”) challenges the Final
Order and Decision of the South Carolina Division of Motor Vehicle Hearings (“DMVH”)
issued following an administrative hearing held pursuant to S.C. Code Ann. §
56-5-2951(B)(2) (2006). Knight contends that the DMVH Hearing Officer erroneously
sustained his driver’s license suspension by the South Carolina Department of
Motor Vehicles (“Department”). The Administrative Law Court (“ALC”) 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 affirmed.
BACKGROUND
On
October 7, 2006, at approximately 1:30 a.m., Officer S. A. Ellis (“Officer Ellis”)
of the Summerville Police Department was on South Main when she observed Knight’s
vehicle tailgating another vehicle. Officer Ellis followed Knight’s vehicle
and further observed Knight’s vehicle leaving its lane of travel to the right
and crossing over the double yellow line before turning left into a parking
area as Officer Ellis signaled Knight to stop. Upon arriving at Knight’s
vehicle, Officer Ellis noticed a strong odor of alcohol coming from Knight’s
person. Officer Ellis advised Knight of his Miranda Rights and requested that
he perform several field sobriety tests. Knight performed poorly on two tests
and informed Officer Ellis he would not take any more tests. Officer Ellis arrested
Knight for driving under the influence (“DUI”).
Upon
arriving at the Summerville Police Department, Officer Ellis—a certified
DataMaster operator—advised Knight that he was being videotaped, advised him of
his Miranda rights, and provided the Implied Consent Advisement in writing. After
a twenty-minute observation period, Knight informed Officer Ellis that he did
not want to take the DataMaster test. Officer Ellis then recorded the incident
as a refusal and issued Knight a Notice of Suspension in accordance with S.C.
Code Ann. § 56-5-2951(A) (2006).
Pursuant
to S.C. Code Ann. § 56-5-2951(B)(2) (2006), Knight filed a request for an
administrative hearing to challenge the suspension. An administrative hearing
was held on November 20, 2006. Officer Ellis testified at the hearing on
behalf of the Department. Knight neither testified nor presented any other
evidence. On November 29, 2006, the DMVH Hearing Officer issued a Final Order
and Decision in which she sustained Knight’s suspension. Specifically, she
stated:
I find that [the Department] has met [its]
burden of proof in this case. Officer Ellis stopped [Knight] for following
another vehicle too closely and leaving [his] lane of travel. Upon stopping
[Knight] she observed an odor of alcohol . . . . [Knight] completed the [field
sobriety test], which he did poorly on and attempted to do the walk and turn,
stumbling. He refused to comply with any further testing. Officer Ellis
advised [Knight] of his Implied Consent Advisement in writing . . . . [Knight]
refused to submit to the DataMaster Test after the twenty minute waiting period
. . . . Therefore, I conclude as a matter of Law that the [Department] has met
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. 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(A) (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 to review agency decisions is
provided by S.C. Code Ann. § 1-23-380(A)(5) (Supp. 2007). See S.C. Code Ann. § 1-23-380(B) (Supp. 2007) (directing administrative law judges to conduct
appellate review in the same manner prescribed in § 1-23-380(A)). 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).
Thus,
pursuant to the APA, this court’s review is limited to deciding whether the
DMVH’s Final Order and Decision is unsupported by substantial evidence or is
affected by an error of law. Bass v. Kenco Group, 366 S.C. 450, 457,
622 S.E.2d 577, 581 (Ct. App. 2005). Substantial evidence is not a mere
scintilla of evidence, nor the evidence viewed blindly from one side of the
case, but is evidence which, considering the record as a whole, would allow
reasonable minds to reach the conclusion the agency reached in order to justify
its action. Hargrove v. Titan Textile Co., 360 S.C. 276, 289, 599
S.E.2d 604, 611 (Ct. App. 2004). The possibility of drawing two inconsistent
conclusions from the evidence does not prevent the agency’s findings from being
supported by substantial evidence. Id. at 290, 599 S.E.2d at 611. The
party challenging an agency’s decision has the burden of proving convincingly
that the agency’s decision is unsupported by substantial evidence. Waters
v. S.C. Land Resources Conservation Comm’n, 321 S.C. 219, 226, 467 S.E.2d
913, 917 (1996).
ISSUES
ON APPEAL
1. Did
the DMVH Hearing Officer err by concluding that Knight was lawfully stopped and
arrested for DUI?
2. Does
South Carolina’s implied consent law violate the Due Process Clause?
3. Are
orders of individual judges of the Administrative Law Court binding on other
judges of the court; specifically, are ALC decisions relying on the decision of
the Court of Appeals in Taylor v. South Carolina Department of Motor Vehicles binding on other administrative law judges?
DISCUSSION
1.
Lawfulness of the Stop and Arrest
Knight
argues that the DMVH Hearing Officer erred in concluding that both his stop and
arrest for DUI were lawful. The court disagrees. Because this case involves both
a traffic stop and an arrest, the two will be addressed separately. See State v. Nelson, 336 S.C. 186, 191-92, 519 S.E.2d 786, 788
(1999).
A
police officer may stop and detain an individual for investigative purposes
when the officer has a reasonable suspicion that the individual is involved in
criminal activity. See State v. Khingratsaiphon, 352 S.C. 62,
69, 572 S.E.2d 456, 459 (2000); Nelson, 336 S.C. at 192, 519 S.E.2d at
789 (citing Berkemer v. McCarty, 468 U.S. 420 (1984)). In this particular
case, Officer Ellis specifically observed Knight following a car too closely,
which is in violation of S.C. Code Ann. § 56-5-1930(a) (2006) (“The driver of a motor vehicle shall not follow another vehicle
more closely than is reasonable and prudent, having due regard for the speed of
such vehicles and the traffic upon and the condition of the highway.”). Furthermore,
S.C. Code Ann. § 56-1-720 (2006) authorizes the assessment of a four-point
ticket for following too closely. Officer Ellis further observed Knight
leaving his lane before making a turn, in violation of S.C. Code Ann. §
56-5-1900 (2006) (“A vehicle shall be
driven as nearly as practicable entirely within a single lane and shall not be
moved from the lane until the driver has first ascertained that such movement
can be made with safety.”). These two circumstances provide a
basis for reasonable suspicion for Officer Ellis’s detention of Knight. See City of Orangeburg v. Carter, 303 S.C. 290, 400
S.E.2d 140 (1991) (holding that an officer’s observation of an improper left
turn by the defendant justified a routine stop).
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 Ellis testified, and the DMVH Hearing Officer found, that: (i) at
approximately 1:30 a.m. on October 7, 2006, Officer Ellis observed Knight tailgating
another vehicle and leaving its lane of travel; (ii) after pulling Knight over,
Officer Ellis noticed a “strong odor” of alcohol coming from Knight’s person; and
(iii) Knight performed poorly on two field sobriety tests and refused to take
any further tests. Taken together, Officer Ellis’s testimony demonstrated that
Knight’s arrest for DUI was lawful. The question before the DMVH Hearing Officer
was not whether Knight 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” (emphasis in original)), 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 Ellis’s knowledge were sufficient to lead a
reasonable person to believe that Knight had committed the offense of DUI. See Baccus, 367 S.C. at 49, 625 S.E.2d at 220. Because Officer Ellis’s
testimony showed that Knight was operating his vehicle improperly, that he smelled
of alcohol, and that he performed poorly on field sobriety tests, that was
sufficient, as a whole, to establish probable cause for a DUI arrest. Cf. Kelly v. S.C. Dep’t of Highways, 323 S.C. 334, 474 S.E.2d 443 (Ct. App.
1996) (finding probable cause to arrest for DUI where the officer observed the motorist’s
car swerve abruptly to the right and nearly hit a median, the motorist smelled
of alcohol, the motorist admitted to having consumed a few beers, and the motorist
performed poorly on a field sobriety test). Knight’s failure to perform
additional field-sobriety tests may also have been a factor in Officer Ellis’s
decision to arrest him for DUI. See Farmer v. Commonwealth, 404 S.E.2d 371 (Va. Ct.
App. 1991), cited in Hammond v. Commonwealth, 439
S.E.2d 877, 878-79 (Va. Ct. App. 1994) (noting that “evidence of
the accused’s refusal to take the
test or his actions in voluntarily performing
the non-required field sobriety test may be relevant to prove the
accused’s guilt or innocence” (emphasis in original)).
Furthermore,
the fact that Officer Ellis did not specifically testify that Knight was
unsteady on his feet or that Knight had slurred speech or bloodshot eyes did
not preclude a finding of probable cause. Whether probable cause exists
depends upon the “totality of the circumstances”―not the existence of a
particular set of facts. See Baccus, 367 S.C. at 49, 625 S.E.2d
at 220. Our appellate courts have found probable cause to arrest for DUI in
cases where there was no mention of evidence that the motorist was unsteady on
his feet or that he had slurred speech or bloodshot eyes. See, e.g., Kelly, 323 S.C. 334, 474 S.E.2d 443; State v. Parker, 271 S.C.
159, 245 S.E.2d 904 (1978). In this case, Officer Ellis’s testimony that Knight
performed poorly on field sobriety tests supports the inference that Knight was
exhibiting signs of impairment at the time of his arrest. Knight also appears
to argue that if Officer Ellis had truly had reasonable suspicion to stop him,
she would have issued Knight a citation for the traffic laws he had violated,
and not just arrested him for DUI. This argument is without merit. See State v. Adams, 366 S.E.2d 326 (Ga. Ct. App. 1988) (“The fact that the officer did not charge defendant with
[improper lane change] but only with the more serious offense of driving under
the influence is immaterial.”).
2. Constitutionality of Implied Consent Statute
Knight
also argues that South Carolina’s implied consent statute violates the Due
Process Clause of the Fourteenth Amendment. Specifically, Knight argues that
it is unconstitutional for the Department to suspend Knight’s license prior to
a hearing. See S.C. Code Ann. § 56-5-2951(A) (2006). However, the
court cannot address this argument because the ALC does not have the authority
to rule on the facial constitutionality of statutes. See Video
Gaming Consultants, Inc. v. S.C. Dep’t of Revenue, 342 S.C. 34, 38, 535 S.E.2d
642, 644 (2000); Ward v. State, 343 S.C. 14,
538 S.E.2d 245 (2000).
3.
Binding Nature of Other Decisions
Knight
devotes a substantial portion of his briefs to the issue of whether the court
is required to follow the decision of the South Carolina Court of Appeals in Taylor
v. South Carolina Department of Motor Vehicles and other ALC decisions that
have applied it. In Taylor, the Court of Appeals held that “[i]n South Carolina, operating a motor vehicle is a privilege
of the State, not a right of the individual.” Taylor v. S.C. Dep’t
of Motor Vehicles, 368 S.C.
33, 36, 627 S.E.2d 751, 753 (Ct. App. 2006).
The
issues regarding precedential effect raised by Knight in his briefs can be
answered concisely. Non-en banc ALC decisions are not binding on other administrative
law judges. See Stephen P. Bates, The
Contested Case Before the ALJD, in South Carolina Administrative Practice & Procedure 161, 210 (Randolph R. Lowell & Stephen P. Bates eds., 2004) (“The
judges of the [ALC] are not bound by previous rulings of their peers.”). Published decisions of the Court of Appeals
are. See id. at 211 (“Decisions by the Court of Appeals and
Supreme Court on administrative law issues are controlling . . . .”); 20 Am.
Jur. 2d Courts § 142 (2005) (“Decisions of the court of appeals . . .
should be followed by all lower courts . . . .”); Rule 220(a), SCACR.
Moreover,
Knight’s argument that driving is a right rather than a privilege does not
avail him. Knight suggests that Taylor and recent ALC cases stating, in
dicta, that the license to operate a motor vehicle is a “privilege” rather than
a “right” are inconsistent with Bell v. Burson, 402 U.S. 535 (1971), and
subsequent United States Supreme Court cases holding that the requirements of
procedural due process apply to driver’s license suspensions. However, the
United States Supreme Court has long since abandoned “the wooden distinction
between ‘rights’ and ‘privileges’ that once seemed to govern the applicability
of procedural due process rights.” Bd. of Regents of State Colleges v. Roth,
408 U.S. 564, 571 (1972). In fact, this abandonment is evident in Bell,
where the U.S. Supreme Court described its holding as “an application of the
general proposition that relevant constitutional restraints limit state power
to terminate an entitlement whether the entitlement is denominated a ‘right’ or
a ‘privilege.’” Bell, 402 U.S. at 539. Therefore, whether driving in South Carolina is denominated a “right” or “privilege” has no bearing on Knight’s due
process rights.
For
these reasons, Knight has not shown that the DMVH Hearing Officer’s decision was
unsupported by the reliable, probative, and substantial evidence on the whole
record or otherwise reversible under § 1-23-380(A)(5). Accordingly, the DMVH’s
Final Order and Decision must be affirmed.
ORDER
For
the foregoing reasons, it is
ORDERED that the DMVH’s Final Order and Decision is AFFIRMED.
IT
IS SO ORDERED.
______________________________
Paige J. Gossett
Administrative
Law Judge
March 4, 2008
Columbia, South Carolina
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