SC Administrative Law Court Decisions

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 (2006 & Supp. 2006). The Department contends that the DMVH hearing officer erroneously determined that law enforcement lacked probable cause to arrest Respondent Michael James Vetter for driving under the influence (DUI). The Administrative Law Court (ALC or Court) has jurisdiction to review 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

In the late evening of May 1, 2007, Officer Matthew J. Smetana of the Mount Pleasant Police Department arrested Vetter for DUI and transported him to a detention center for a breath test. Vetter was subsequently issued a Notice of Suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (2006) for refusing to submit to breath testing.

Pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (2006), Vetter filed a request for an administrative hearing to challenge the suspension. The DMVH held an administrative hearing on June 5, 2007. The following day, the DMVH hearing officer issued a Final Order and Decision rescinding Vetter’s suspension. Specifically, the hearing officer held in pertinent part:

I find that Officer Smetana did have probable cause to stop Respondent due to his driving, however he did not have probable cause to detain Respondent for driving under the influence based on the testimony given at the hearing. The officer said that he smelled an odor of alcohol coming from Respondent’s person and he failed the field sobriety tests, which is only the officer’s opinion, but did not offer any testimony to show that Respondent’s mental or physical abilities were materially or appreciably 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: slurred speech, red bloodshot eyes or being unsteady on his feet. There was no evidence other than an odor of alcohol to show why the officer believed Respondent’s bad driving to be because his faculties were materially or appreciably impaired because of alcohol use.

ISSUE ON APPEAL

Did the DMVH hearing officer err when she determined that Officer Smetana lacked probable cause to arrest Vetter for DUI?

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).[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. 2007).

A decision is supported by “substantial evidence” when the record as a whole allows reasonable minds to reach the same conclusion reached by the agency. Bilton v. Best Western Royal Motor Lodge, 282 S.C. 634, 641, 321 S.E.2d 63, 68 (Ct. App. 1984). A decision will not be set aside simply because reasonable minds may differ on the judgment. Lark v. Bi-Lo, Inc., 276 S.C. 130, 136, 276 S.E.2d 304, 307 (1981). The fact that the record, when considered as a whole, presents the possibility of drawing two inconsistent conclusions from the evidence does not prevent the agency’s findings from being supported by substantial evidence. Waters v. S.C. Land Resources Conservation Comm’n, 321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996); Grant v. S.C. Coastal Council, 319 S.C. 348, 353, 461 S.E.2d 388, 391 (1995).

In applying the substantial evidence rule, the factual findings of the administrative agency are presumed to be correct. Rodney v. Michelin Tire Co., 320 S.C. 515, 519, 466 S.E.2d 357, 359 (1996) (citing Kearse v. State Health and Human Servs. Fin. Comm’n, 318 S.C. 198, 200, 456 S.E.2d 892, 893 (1995)). The party challenging an agency action has the burden of proving convincingly that the agency’s decision is unsupported by substantial evidence. Waters, 321 S.C. at 226, 467 S.E.2d at 917.

DISCUSSION

The Department argues that the DMVH hearing officer erred by determining that Officer Smetana lacked probable cause to arrest Vetter for DUI. I agree.

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. State v. Baccus, 367 S.C. 41, 49, 625 S.E.2d 216, 220 (2006). 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 Smetana testified without objection that: (i) Vetter’s vehicle swerved back and forth and touched the white line twice; (ii) Vetter nearly ran a stop sign, stopping only when he reached the middle of the intersection; (iii) after apparently passing the street he intended to turn onto, Vetter drove his vehicle in reverse so that he could make the turn; (iv) Vetter admitted to drinking two beers; (v) Vetter smelled of alcohol; and (vi) Vetter performed poorly on field sobriety tests.[2] None of this testimony was contradicted on cross-examination in any way.

Taken together, this testimony demonstrated that Officer Smetana had probable cause to arrest Vetter for DUI. The question before the DMVH hearing officer was thus not whether Vetter was guilty of DUI,[3] but rather, the question was merely whether the circumstances within Officer Smetana’s knowledge were sufficient to lead a reasonable person to believe that Vetter had committed the offense of DUI. See Baccus, 367 S.C. at 49, 625 S.E.2d at 220. Because Officer Smetana’s testimony showed that Vetter was driving erratically,[4] that he smelled of alcohol, that he admitted to consuming alcohol, and that he performed poorly on field sobriety tests, it was sufficient, as a whole, to establish probable cause for a DUI arrest. Cf. Kelly, 323 S.C. 334, 474 S.E.2d 443 (finding probable cause to arrest for DUI where officer observed motorist’s car swerve abruptly to the right and nearly hit median, motorist smelled of alcohol, motorist admitted to having consumed a few beers, and motorist performed poorly on a field sobriety test).

Furthermore, the fact that Officer Smetana did not specifically testify that Vetter was unsteady on his feet or that Vetter 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 specific 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 Smetana’s testimony regarding Vetter’s erratic driving and his performance on the field sobriety tests demonstrated that Vetter was exhibiting signs of impairment at the time of his arrest.

Vetter, however, argues that since there is no evidence that Officer Smetana read him the Miranda[5] warnings prior to administering field sobriety tests to him, the results of the field sobriety tests should have been excluded.[6] According to Vetter, administering field sobriety tests to a motorist without first Mirandizing the motorist constitutes a violation of SLED policies, as well as a violation of the motorist’s constitutional rights.

Exclusion of the field sobriety test results on this basis is not warranted. First, regarding Vetter’s argument that Officer Smetana violated SLED policies, Vetter failed to cite any specific SLED policy that requires a law enforcement officer to Mirandize a motorist before he administers field sobriety tests to the motorist. Even if such a SLED policy exists and can be validly relied upon to exclude the field sobriety test results, it is not the responsibility of this Court to perform legal research for a party.[7] Therefore, because Vetter’s argument is not supported by any specific legal authority, it is deemed abandoned on appeal and therefore not preserved for review. See Eaddy v. Smurfit-Stone Container Corp., 355 S.C. 154, 164, 584 S.E.2d 390, 396 (Ct. App. 2003) (“This court has noted that short, conclusory statements made without supporting authority are deemed abandoned on appeal and therefore not preserved for our review.”); Shapemasters Golf Course Builders, Inc. v. Shapemasters, Inc., 360 S.C. 473, 480, 602 S.E.2d 83, 87 n.4 (Ct. App. 2004) (“It is not necessary for this court to address Appellants’ remaining issues because Appellants fail to provide legal authority to support their arguments.”).

Second, as to the alleged constitutional violation, any failure by Officer Smetana to read Vetter the Miranda warnings prior to administering field sobriety testing to Vetter did not constitute a violation of Vetter’s constitutional rights. Roadside field sobriety testing does not generally constitute a “custodial interrogation” for the purposes of Miranda.[8] See, e.g., State v. Peele, 298 S.C. 63, 378 S.E.2d 254 (1989); State v. Simmons, 329 S.C. 154, 494 S.E.2d 460 (Ct. App. 1997); State v. Salisbury, 330 S.C. 250, 498 S.E.2d 655 (Ct. App. 1998), aff’d as modified, 343 S.C. 520, 541 S.E.2d 247 (2001); Berkemer v. McCarty, 468 U.S. 420 (1984); Pennsylvania v. Bruder, 488 U.S. 9 (1988). In this case, because it does not appear that Vetter was subjected to restraints comparable to those associated with a formal arrest at the time the field sobriety tests were administered, Miranda warnings were not constitutionally required. See Berkemer, 468 U.S. at 440 (“It is settled that the safeguards prescribed by Miranda become applicable as soon as a suspect’s freedom of action is curtailed to a ‘degree associated with formal arrest.’”); Peele, 298 S.C. at 66, 378 S.E.2d at 256 (concluding that field sobriety test results were properly admitted since appellant’s freedom of action was not curtailed “to a degree associated with formal arrest”).

For these reasons, the Court concludes that the DMVH hearing officer’s determination that Officer Smetana lacked probable cause to arrest Vetter for DUI was clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.

ORDER

IT IS THEREFORE ORDERED that that the DMVH’s Final Order and Decision is REVERSED and the Department’s suspension of Vetter’s driver’s license is reinstated.

AND IT IS SO ORDERED.

______________________________

Ralph K. Anderson, III

Administrative Law Judge

June 5, 2008

Columbia, South Carolina