South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
SCDMV vs. Frank Xavier Gilig

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Petitioners:
South Carolina Department of Motor Vehicles and Mt. Pleasant Police Department

Respondents:
Frank Xavier Gilig

Appellant:
South Carolina Department of Motor Vehicles
 
DOCKET NUMBER:
07-ALJ-21-0453-AP

APPEARANCES:
n/a
 

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 (2006 & Supp. 2006). The Department contends that the DMVH hearing officer erroneously determined that law enforcement lacked probable cause to arrest Respondent Frank Xavier Gilig 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 affirmed.


BACKGROUND

On June 13, 2007, Officer Cardaronella of the Mt. Pleasant Police Department responded to a dispatch from Mt. Pleasant Communications advising her that a “green Ford Explorer” was seen traveling at “a high rate of speed” down a “lane”[2] located in the Shemwood II subdivision in Mt. Pleasant. Officer Cardaronella patrolled the area and found a green Ford Explorer parked at 927 Night Heron Drive. Another officer was waiting there. The two officers spoke with Respondent’s mother, who stated that the driver of the vehicle “should be inside.” The officers proceeded into Respondent’s home and found Respondent in his bedroom. According to Officer Cardaronella, Respondent stated that he “had driven” the vehicle, but he also stated that he had been sleeping when the officers arrived. Officer Cardaronella asked Respondent to step outside. After noticing that Respondent was unsteady on his feet, that his speech was “a little bit” slurred and that his eyes were bloodshot, Officer Cardaronella administered field sobriety testing to Respondent. According to Officer Cardaronella, Respondent “did not perform adequately.” Cardaronella arrested Respondent for DUI and transported him to the police station for a DataMaster test.

Upon arriving at the police station, Officer Cardaronella asked Officer Zeitner to administer the DataMaster test to Respondent. After being advised of his implied consent rights, Respondent consented to testing. The results of the DataMaster test indicated that Respondent’s alcohol concentration was 0.00%. After taking the DataMaster test, Respondent admitted that he had taken “one Lortab pill” and “three generic Valium pills” at lunchtime. Suspecting that Respondent might be under the influence of drugs other than alcohol, Officer Zeitner transported Respondent to a local hospital to provide a urine sample. Upon arriving at the hospital, Respondent was again advised of his implied consent rights. Respondent refused to provide a urine sample. As a result of his refusal, Respondent was issued 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), Respondent filed a request for an administrative hearing to challenge his suspension. The DMVH held an administrative hearing on August 6, 2007. The only witnesses who testified at the hearing were Officer Cardaronella and Officer Zeitner. On August 8, 2007, the DMVH hearing officer issued a Final Order and Decision rescinding Respondent’s suspension. Specifically, the hearing officer found that Officer Cardaronella did not have probable cause to arrest Respondent for DUI.

ISSUE ON APPEAL

Did the DMVH hearing officer err when she determined that Officer Cardaronella lacked probable cause to arrest Respondent 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).[3] See S.C. Code Ann. § 1-23-505(2) (as amended 2008). As such, the APA’s standard of review governs appeals from decisions of the DMVH. See S.C. Code Ann. § 1-23-380 (as amended 2008); 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(5) (as amended 2008). See S.C. Code Ann. § 1-23-600(E) (as amended 2008) (directing administrative law judges to conduct appellate review in the same manner prescribed in § 1-23-380). 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(5).

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 Cardaronella lacked probable cause to arrest Respondent for DUI. I disagree.

Probable cause has been defined as “a good faith belief that a person is guilty of a crime when this belief rests on such grounds as would induce an ordinarily prudent and cautious person, under the circumstances, to believe likewise.” Wortman v. Spartanburg, 310 S.C. 1, 4, 425 S.E.2d 18, 20 (1992). Whether probable cause exists depends upon the totality of the circumstances surrounding the information at the officer’s disposal. State v. Baccus, 367 S.C. 41, 49, 625 S.E.2d 216, 220 (2006).

Here, the evidence linking Respondent’s vehicle to the vehicle described in the dispatch was rather weak. The dispatch merely stated that a “green Ford Explorer” was seen traveling at “a high rate of speed” on a street located in the Shemwood II subdivision. The dispatch did not include any other distinguishing details about the vehicle, such as a license plate number, an estimate of the age of the vehicle, or the direction in which the vehicle was travelling.[4] Additionally, it is unclear from the record how much time elapsed between when the high-speed driving was reported to Mt. Pleasant Communications and when Officer Cardaronella arrived at the Shemwood II subdivision. Consequently, the driver of the vehicle referenced in the dispatch might have had time, after being reported, to drive numerous miles away from the subdivision. Moreover, while Respondent admitted that he had previously driven, there is no evidence that he admitted to driving on the street referenced in the dispatch or that he admitted to driving recently.

Furthermore, Respondent was found by Officer Cardaronella in the bedroom of his home, where he claimed that he had been sleeping. Certainly, being awakened from sleep could cause one to exhibit some of the characteristics that are common to those who are under the influence of alcohol or drugs. It could also affect a person’s performance on field sobriety tests.[5] Moreover, even assuming that the characteristics exhibited by Respondent on the day of his arrest and the results of the field sobriety testing were due to Respondent’s use of drugs, there is not much evidence from which to infer that Respondent became impaired before, rather than after, arriving at his home. For instance, as discussed above, the evidence presented to show that Respondent drove at a high rate of speed prior to arriving at his home was fairly tenuous. Moreover, Officer Cardaronella failed to testify as to how much time elapsed between the time she received the dispatch and the time she arrived at Respondent’s home.

In making its argument that the DMVH hearing officer committed error, the Department relies on Fradella v. Town of Mount Pleasant, 325 S.C. 469, 482 S.E.2d 53 (Ct. App. 1997). However, the facts of the present case are quite different than those in Fradella. In Fradella, law enforcement officers responded to a dispatcher’s report of an accident on a bridge. The officers arrived at the bridge shortly after being dispatched and discovered that the defendant’s vehicle had been involved in a single-vehicle accident. A man at the scene told the officers that he had driven the defendant home and that the defendant smelled of alcohol. At around the same time, the dispatcher informed the officers that the defendant had called 911 to report the accident. The officers then drove to the defendant’s home, arriving twenty minutes after first responding to the accident. The defendant admitted to the officers that he was the driver of the wrecked vehicle. The defendant further admitted that had previously consumed alcohol, clarifying that he had not had “anything else to drink” prior to the time the officers arrived at his home. After observing the defendant’s bloodshot eyes and the smell of alcohol on his breath, the officers asked the defendant to submit to field sobriety tests. Based on the defendant’s performance on the field sobriety tests, the officers concluded that the defendant was impaired. The defendant was arrested for DUI and subsequently convicted. On appeal, the Court of Appeals held that “an officer can arrest for a misdemeanor [not committed within his presence] when the facts and circumstances observed by the officer give him probable cause to believe that a crime has been freshly committed.” Id. at 475, 482 S.E.2d at 56 (quoting State v. Martin, 275 S.C. 141, 146, 268 S.E.2d 105, 107 (1980)) (emphasis in original). The court then upheld the conviction, concluding that “based on the facts and circumstances observed by these officers within their sensory awareness, we hold they had probable cause to believe Fradella had ‘freshly committed’ the crime of DUI.” Fradella, 325 S.C. at 476, 482 S.E.2d at 57.

The present case is distinguishable from Fradella in several ways. First, in Fradella, the Court of Appeals was reviewing a trial court’s determination that probable cause to arrest for DUI existed. Here, in contrast, this Court is reviewing a hearing officer’s determination that probable cause to arrest for DUI did not exist. In both criminal and administrative appeals, a trial court’s factual findings[6] are entitled to deference. See State v. Gentile, 373 S.C. 506, 646 S.E.2d 171 (Ct. App. 2007) (discussing standard of review for criminal appeals); Rodney, 320 S.C. 515, 466 S.E.2d 357 (discussing standard of review for administrative appeals). Thus, the Department, which seeks reversal of the hearing officer’s decision, faces a greater burden than that faced by the Town of Mount Pleasant in Fradella, where the Town sought to have the trial court’s decision affirmed.

Second, the defendant in Fradella admitted to being involved in a single-vehicle accident. Here, in contrast, the only evidence offered to show how Respondent was driving on the day of his arrest was an unsubstantiated report that “a green Ford Explorer” was travelling at “a high rate of speed” on a street in the Shemwood II subdivision. As noted above, that evidence was certainly lacking in precision.

Third, in Fradella, the evidence was relatively clear that the defendant had driven shortly before his encounter with law enforcement. For instance, the court noted that the arresting officers arrived at the scene of the defendant’s accident “shortly” after being dispatched and that they arrived at the defendant’s home twenty minutes after they arrived at the accident scene. Fradella, 325 S.C. at 476, 482 S.E.2d at 56. Moreover, the court mentioned that the officers were already at the accident scene when they were informed by the dispatcher that the defendant had called 911 to report the accident. Fradella, 325 S.C. at 472, 482 S.E.2d at 54.

In the present case, in contrast, the evidence is not nearly as clear in this regard. For instance, Officer Cardaronella did not specifically testify as to how much time elapsed between the time she received the dispatch and the time she arrived at Respondent’s home. Moreover, when Officer Cardaronella arrived at Respondent’s home, she found him in his bedroom, and he told her that he had been sleeping. Furthermore, while Respondent told Officer Cardaronella that he “had driven” his vehicle, there is no evidence that he told her when he had last done so.

Finally, in Fradella, the man who drove the defendant home told the arresting officers that the defendant smelled of alcohol, thus demonstrating that the defendant had consumed alcohol before arriving at his home. Moreover, the defendant in Fradella informed the officers that he had not had “anything else to drink” prior to the officers’ arrival at his home. Fradella, 325 S.C. at 473, 482 S.E.2d at 55. Here, in contrast, there was no direct evidence that Respondent had consumed alcohol or drugs prior to arriving at his home or that, after arriving at his home, he had abstained from using alcohol or drugs.

For these reasons, the Court concludes that the hearing officer’s determination that Officer Cardaronella lacked probable cause to arrest Respondent for DUI was not 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 AFFIRMED.

AND IT IS SO ORDERED.

______________________________

Ralph K. Anderson, III

Administrative Law Judge

July 9, 2008

Columbia, South Carolina



[1] Based on discussions with the parties, the caption has been amended to correct a misspelling in Respondent’s name.

[2] In the transcript, Officer Cardaronella’s testimony regarding the name of the lane is labeled as “inaudible.”

[3] The APA was amended and renumbered via R. 413, H. 3575, 117th Sess. (S.C. 2008) (eff. June 16, 2008). No Act number had been assigned as of the date of this Order. Accordingly, all citations to the APA in this Order are to the recently amended and renumbered sections enacted by R. 413.

[4] At the hearing, Officer Cardaronella offered no explanation, other than mentioning that Respondent’s vehicle was a green Ford Explorer, regarding why she concluded that Respondent’s vehicle was the vehicle referenced in the dispatch. Moreover, neither the person who reported the high-speed driving nor the officer who was waiting for Officer Cardaronella when she arrived at Respondent’s home testified at the hearing.

[5] With regard to Officer Cardaronella’s testimony about the field sobriety testing, she did not provide any details as to why she reached the conclusion that Respondent “did not perform adequately.” In fact, she did not even mention which, or how many, field sobriety tests were administered to Respondent. Thus, the record certainly does not rule out the possibility that Respondent’s performance was affected by being awakened from sleep.

[6] In South Carolina, the issue of probable cause is primarily a question of fact. See Wortman, 310 S.C. at 4, 425 S.E.2d at 20; State v. Brockman, 339 S.C. 57, 66, 528 S.E.2d 661, 665 (2000) (holding that a private search determination under the Fourth Amendment “is largely a question of fact in light of all the circumstances”).


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