ORDERS:
ORDER
STATEMENT
OF THE CASE
This
matter is an appeal by James E. Chambers (“Chambers”) 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. §
56-5-2951(B)(2) (2006). Chambers claims that the DMVH Hearing Officer
erroneously sustained the suspension of his driver’s license. The Administrative Law Court (“ALC”) has jurisdiction to hear this matter pursuant to 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 14, 2007, Corporal Justin Carabetta, a police officer for the Cayce
Department of Public Safety, responded to a police dispatch that there had been
a possible automobile accident at 910 Knox Abbott Drive in Cayce involving a
gold GMC sport utility vehicle. Upon arriving at the scene, Corporal Carabetta
observed a gold GMC sport utility vehicle pulling out onto Knox Abbott Drive
and heading south. Witnesses at the scene were pointing at the vehicle.
Corporal Carabetta followed the vehicle and conducted a traffic stop. Corporal
Carabetta noticed a strong smell of alcohol emitting from the passenger
compartment of the vehicle and asked the driver, Chambers, to exit the car.
Corporal Carabetta asked Chambers to perform field sobriety tests, which
Chambers refused. Corporal Carabetta placed Chambers under arrest and read Chambers
his Miranda rights. Chambers was transported to the Cayce Department of Public
Safety, where he was again read his Miranda rights, and also read the implied
consent advisement. Chambers refused to give a breath sample. Based on this
refusal, Chambers was issued a notice of suspension pursuant to S.C. Code Ann. §
56-5-2951(A) (2006).
Pursuant
to § 56-5-2951(B)(2), Chambers filed a request for an administrative hearing to
challenge the suspension. The DMVH held an administrative hearing on May 22,
2007. At the hearing, Corporal Carabetta testified that he was dispatched to Knox Abbott Drive because a possible automobile accident had occurred. Corporal Carabetta
further testified that, although he did not provide Chambers with his implied
consent advisement in writing until after Chambers’s refusal, Corporal
Carabetta read the advisement to Chambers.
On
June 21, 2007, the DMVH Hearing Officer issued a Final Order and Decision
sustaining Chambers’s suspension. Specifically, he stated:
The officer was allowed to
repeat what the dispatcher told him. The statement was not being offered for
the truth of the matter asserted. The officer then, through his personal
knowledge, concluded [Chambers] was under the influence of alcohol. . . .
The officer testified that he
read the Advisement to [Chambers] and [Chambers] replied that he would not
submit to a breath test. Moreover, [Chambers] testified that he was not going
to take a test or sign anything without the presence of his attorney.
[Chambers] failed to show prejudice when the officer failed to provide him with
a copy of the Advisement.
Chambers now
appeals.
ISSUES
ON APPEAL
1. Did
the DMVH Hearing Officer err in sustaining the suspension of Chambers’s driving
privileges where the initial stop and detention was based on an allegedly false
and uncorroborated anonymous tip?
2. Did
the DMVH Hearing Officer err in finding that Chambers was properly advised of
his implied consent rights prior to the request for a breath sample?
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
1.
Lawfulness of Stop
Chambers
argues that the suspension of his license is erroneous because Corporal
Carabetta lacked reasonable suspicion to detain him. See S.C. Code Ann.
§ 56-5-2951(F)(1) (Supp. 2007) (including the lawfulness of the arrest or
detention as an issue properly within the scope of the hearing before the DMVH
Hearing Officer). Relying on State v. Green, 341 S.C. 214, 532
S.E.2d 896 (Ct. App. 2000), and other case law interpreting the Fourth
Amendment to the United States Constitution, Chambers argues that because
Corporal Carabetta was dispatched to the scene based only on an anonymous tip,
Corporal Carabetta did not have reasonable suspicion to detain Chambers. The
court disagrees.
First,
there is no evidence in the record whatsoever that the stop was based upon an
anonymous tip. Corporal Carabetta simply testified that he was dispatched to 910 Knox Abbott Drive and informed by the dispatcher that a gold GMC sport utility vehicle
had possibly been involved in an accident. (DMVH Hr’g Tr. 4, May 22, 2007.) While
Corporal Carabetta did not have personal knowledge as to the source of the
dispatcher’s information, it does not necessarily follow that it was an
anonymous tip. Accordingly, it is questionable whether case law addressing the
reliability of anonymous tips is even applicable to the instant facts.
Even if the dispatch of Corporal Carabetta were based upon
an anonymous tip, however, the record shows that Corporal Carabetta had
reasonable suspicion to detain Chambers. See State v.
Khingratsaiphon, 352 S.C. 62, 69, 572 S.E.2d 456, 459 (2000) (holding that
a police officer may stop and detain an individual for investigative purposes
when the officer has reasonable suspicion that the individual is involved in
criminal activity); State v. Nelson, 336 S.C. 186, 192, 519 S.E.2d 786,
789 (1999) (“[A] policeman who lacks probable cause
but whose observations lead him reasonably to suspect that a particular person
has committed, is committing, or is about to commit a crime, may detain that
person briefly in order to investigate the circumstances that provoke that
suspicion.”) (citing Berkemer v. McCarty, 468 U.S. 420 (1984)).
By statute, “deputy sheriffs may for any suspected freshly
committed crime, whether upon view or upon prompt information or complaint,
arrest without warrant . . . .” S.C. Code Ann. § 23-13-60 (2007) (emphasis
added). Section 23-6-140 (2007) gives highway patrolmen the same authority as
deputy sheriffs “to arrest without warrants
and to detain persons found violating or attempting to violate any laws of the
State relative to highway traffic, motor vehicles or commercial motor carriers.”
In this particular case, Corporal Carabetta received a police dispatch that a
possible accident had occurred at 910 Knox Abbot Drive; upon arriving at the
scene, witnesses pointed to Chambers’s vehicle, indicating that it was the
vehicle in question. Thus, this case does not involve a routine traffic stop;
rather, having been advised of a possible automobile accident, coupled with an
at-the-scene identification by more than one witness, Corporal Carabetta
stopped Chambers based on a reasonable suspicion that Chambers had been
involved in an accident and was leaving the scene. See State v.
Easler, 327 S.C. 121, 489 S.E.2d 617 (1997) (“The
present case, however, does not involve a routine traffic stop. On the
contrary, the officers, having been advised there had been an accident and that
someone had left the scene, went looking for that individual based upon a
description given by two eyewitnesses.”).
Thus, the record shows that Corporal Carabetta had reasonable
suspicion to detain Chambers. See State v. Khingratsaiphon, 352
S.C. 62, 69, 572 S.E.2d 456, 459 (2000) (“‘Reasonable suspicion’ requires a ‘particularized
and objective basis that would lead one to suspect another of criminal
activity.’”) (quoting United States v. Cortez, 449 U.S. 411 (1981)); State v. Moultrie, 316 S.C. 547, 552, 451 S.E.2d 34, 37 (Ct. App. 1994) (“[P]robable cause for a warrantless arrest generally exists ‘where the facts
and circumstances within the arresting officer’s knowledge are sufficient for a
reasonable person to believe that a crime has been or is being committed by the
person to be arrested’”) (quoting United States v. Miller, 925 F.2d 695
(4th Cir. 1991)).
Therefore,
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 Chambers’s
license because he 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). Further, the record
supports the Hearing Officer’s rejection of Chambers’s defense that the stop
was unlawful.
2.
Implied Consent Advisement
Chambers
argues that the DMVH Hearing Officer erred in sustaining his suspension even
though Corporal Carabetta admitted to not giving Chambers the implied consent
form in writing prior to his refusal. The court disagrees.
It
is undisputed that Corporal Carabetta read the Implied Consent Advisement to
Chambers. The DMVH Hearing Officer further concluded that Chambers failed to
show he was prejudiced by not receiving his implied consent advisement in
writing. The decision by the South Carolina Court of Appeals in Taylor v.
S.C. Department of Motor Vehicles, 368 S.C. 33,
627 S.E.2d 751 (Ct. App. 2006), cert. granted (Aug. 9, 2007), requires that the motorist allege and prove that he was prejudiced by the
officer’s failure to provide those rights in writing. Taylor, 368 S.C.
at 38, 627 S.E.2d at 754. Chambers alleges prejudice in that he did not
understand his rights or the ramifications of refusal; however, Chambers does
not offer proof of the alleged prejudice. First, Corporal Carabetta testified
that Chambers refused multiple times to take a breathalyzer test. Further,
Chambers said that he would not do anything without his attorney present.
Second, although Chambers stated during the hearing that he did not understand
the ramifications of refusal because he was not provided with his advisement in
writing, Corporal Carabetta read this information to Chambers. Third, Chambers’s
attorney stated during the hearing that even if Corporal Carabetta had provided
Chambers a copy of the advisement in writing, Chambers would not have been able
to read it because he did not have his glasses. (DMVH Hr’g Tr. 17, May 22,
2007.) Accordingly, under Taylor, the DMVH Hearing Officer did not err
in sustaining Chambers’s suspension on this basis.
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
September 24, 2008
Columbia, South Carolina
Although certiorari has been granted in Taylor, the court notes that the decision is still binding on the ALC. See Stephen P. Bates, The Contested Case Before the ALJD, in South Carolina Administrative Practice & Procedure 161, 211
(Randolph R. Lowell & Stephen P. Bates eds., 2004) (“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.
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