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” 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). 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. 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.
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
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