ORDERS:
ORDER
STATEMENT
OF THE CASE
This
matter is an appeal by Jacqueline Katrina Wright (“Wright”) from a Final Order
and Decision of the South Carolina Division of Motor Vehicle Hearings (“DMVH”)
following an administrative hearing held pursuant to S.C. Code Ann. § 56-9-363
(Supp. 2007). Wright claims that the DMVH Hearing Officer erroneously sustained
the suspension of her driver’s license. The Administrative Law Court (“ALC”)
has jurisdiction to hear this matter pursuant to S.C. Code Ann. § 56-9-363 and S.C.
Code Ann. § 1-23-660 (Supp. 2007). Upon review of this matter, the DMVH’s Final
Order and Decision is affirmed.
BACKGROUND
On
April 26, 2007, Officer Bruce Burbage, a police officer for the Mt. Pleasant Police Department, responded to a police
dispatch regarding a reckless driver on Coleman Boulevard. While en route, Officer
Burbage received additional information via dispatch that the vehicle, which
was dark in color and had license plate 208BXT, had pulled into a parking lot.
Upon arriving at the parking lot, Officer Burbage found a dark 2003 Chevrolet Malibu,
with license plate 208BXT, parked at an angle in a parking space so that it was
almost touching a red Ford vehicle. Based on Officer Burbage’s observations,
he determined that the side mirrors of the two vehicles had previously touched
and that there had been a minor collision. Officer Burbage observed Wright stumbling
in the parking lot, and then fall down. When Officer Burbage approached her,
he could smell alcohol on her breath. The officer administered numerous field
sobriety tests to Wright; she failed all of them. Officer Burbage read Wright her
Miranda rights and placed her under arrest. Wright was transported to the Mt.
Pleasant Police Department, where she was again read her Miranda rights, and
also read and given a copy of the implied consent advisement. Wright refused
to give a breath sample. Based on this refusal, Wright was issued a notice of
suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (2006).
Pursuant
to § 56-5-2951(B)(2), Wright filed a request for an administrative hearing to
challenge the suspension. The DMVH held an administrative hearing on April 16,
2007. Officer Burbage testified. Wright neither testified at the hearing nor
presented any other evidence.
On
April 19, 2007, the DMVH Hearing Officer issued a Final Order and Decision sustaining
Wright’s suspension. Specifically, she stated:
I find that [the Department] has met its
burden of proof in this case. . . The testimony of the dispatcher was only
offered to explain why the officer took the action he did. It was not given to
prove [Wright] was driving under the influence. Upon his arrival at the scene
[the officer] observed the vehicle in question as well as another vehicle,
which appear to have been in a collision. [Wright] was observed in the vehicle
and admitted to being the driver of the vehicle and consuming alcohol.
Wright now
appeals.
ISSUES ON APPEAL
1. Did
the DMVH Hearing Officer err in making findings of fact supported by hearsay
testimony?
2. Did
the DMVH Hearing Officer err in finding that Officer Burbage “observed a lady
sitting behind the wheel”?
3. Did
the DMVH Hearing Officer err in finding that Officer Burbage stated that “there
was no way you could get in the vehicle the way the mirrors were touching”?
4. Did
the DMVH Hearing Officer err in finding that the Department 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. 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 (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 to review agency decisions is provided by S.C. Code
Ann. § 1-23-380(5). 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).
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).
DISCUSSION
The South Carolina
Court of Appeals has held that the
requirements for suspension for refusal to
consent are: (1) a person (2) operating a motor vehicle (3) in South Carolina
(4) be arrested for an offense arising out of acts alleged to have been
committed while the person was driving under the influence of alcohol, drugs,
or both, and (5) refuse to submit to alcohol or drug testing.
S.C. Dep’t of
Motor Vehicles v. Nelson, 364 S.C. 514, 523, 613 S.E.2d 544, 549 (Ct. App.
2005) (citing S.C. Code Ann. §§ 56-5-2950, -2951). Thus, once the Department
establishes a prima facie case by introducing evidence as to the five elements
listed in Nelson, the burden of production shifts to the motorist to present evidence, by
cross-examination or otherwise, that supports one or more of the statutory
defenses permitted by S.C. Code Ann. § 56-5-2951(F) (Supp. 2007).
Here,
Officer Burbage’s testimony established the elements required to enforce a
suspension. Although Wright appears to argue that the DMVH Hearing Officer’s specific
findings that Burbage saw Wright behind the wheel of the car and that a
collision had occurred are unsupported by substantial evidence, the court finds
that the inference that Wright had been operating a motor vehicle is reasonable
based upon the evidence presented. Moreover, Wright admitted driving the car;
therefore, any argument that the Department failed to prove the second Nelson element is manifestly without merit.
Nor
has Wright established that her arrest was unlawful. 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 Burbage testified, and the DMVH Hearing Officer reasonably found, that:
(i) Officer Burbage personally observed Wright’s vehicle parked at an odd angle
in a parking lot, and saw Wright stumble and fall in the parking lot; (ii)
after approaching Wright, Officer Burbage smelled alcohol on Wright; (iii) Wright
admitted to having driven and to having consumed alcoholic beverages; and (iv)
Wright performed poorly on numerous field sobriety tests. Taken together,
Officer Burbage’s testimony demonstrated that Wright’s arrest for DUI was
lawful. The question before the DMVH Hearing Officer was not whether Wright
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 Burbage’s knowledge were sufficient to lead a
reasonable person to believe that Wright had committed the offense of DUI. See Baccus, 367 S.C. at 49, 625 S.E.2d at 220. Officer Burbage’s testimony—based
on his personal knowledge—that
Wright admitted to having driven, that she smelled of alcohol, and that she
performed poorly on field sobriety tests was sufficient to show that he had probable
cause to arrest her for DUI. 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).
CONCLUSION
The DMVH
Hearing Officer did not err in holding that the Department met its burden of
proving that it complied with the implied consent law by suspending Wright’s
license for ninety days because she was arrested for driving under the
influence and refused to submit to a breath test. See S.C. Dep’t of
Motor Vehicles v. Nelson, 364 S.C. 514, 523, 613 S.E.2d 544, 549 (Ct. App.
2005); Ex Parte Horne, 303 S.C. 30, 31, 397 S.E.2d 788, 789 (Ct. App.
1990).
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
August 19, 2008
Columbia, South Carolina
Wright’s arguments regarding the Hearing Officer’s
findings relating to the dispatcher’s information are also without merit. As
discussed herein, even setting aside any of the testimony and findings
regarding the circumstances surrounding the dispatch of Officer Burbage, his
personal observations alone warranted Wright’s arrest for DUI. 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).
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