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 Office of
Motor Vehicle Hearings (“OMVH”) issued August 27, 2007. The OMVH’s Final Order and Decision was issued
following an administrative hearing held pursuant to S.C. Code Ann. § 56-5-2951(B)(2)
(2006). The Administrative Law Court (“ALC”) has jurisdiction to hear this
matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2007). Upon careful review
of this matter, the OMVH’s Final Order and Decision is reversed.
BACKGROUND
On
July 15, 2007, Officer Diana Lapp, a police officer for the Mount Pleasant
Police Department, responded to a police dispatch regarding a possible drunk
driver. As Officer Lapp was waiting at a stop light on Bowman Road, a truck matching
the description from dispatch turned onto Bowman Road and entered a fast food
restaurant’s parking lot. Officer Lapp followed the truck into the parking
lot. The driver, Matthew Stack (“Stack”), parked his vehicle, and as he exited
his vehicle, Officer Lapp approached him on foot. As Officer Lapp approached
him, she asked Stack if he had been drinking; Stack replied affirmatively.
Officer Lapp smelled alcohol on Stack and noticed that Stack appeared unsteady
on his feet. The officer requested that Stack perform a field sobriety test,
which Stack refused. Officer Lapp read Stack his Miranda rights and placed him
under arrest. Stack was transported to the Mount Pleasant Police Department,
where he was again read his Miranda rights, and also read and given a copy of
the implied consent advisement by Officer Carter Baldwin. Stack refused to
give a breath sample. Based on this refusal, Stack was issued a notice of
suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (2006).
Pursuant
to § 56-5-2951(B)(2), Stack filed a request for an administrative hearing to
challenge the suspension. The OMVH held an administrative hearing on August 21,
2007. Officers Lapp and Baldwin testified. Stack neither testified at the
hearing nor presented any other evidence.
On
August 27, 2007, the OMVH Hearing Officer issued a Final Order and Decision rescinding
Stack’s suspension. Specifically, she stated:
I find that the [Department] did not meet
the burden of proof necessary to stop [Stack]. The officer proceeded to the
area in question and observed the vehicle described to her by dispatch. She
did not give any testimony to show that [Stack] had committed any type of
violation or driving infraction. There was no testimony of any action to make
her reasonably believe that he was driving under the influence, such as:
speeding, weaving on the road, crossing the center or fog lines or not stopping
for a traffic light. I conclude that the officer may give testimony as to what
dispatch told her to make her go to the location looking for the individual.
However, since it is hearsay, it can not be used for proof of the matter
asserted. It can not be used as probable cause for a stop that the person was
driving under the influence. There was no corroboration on the part of the
officer.
The Department
now appeals.
ISSUE
ON APPEAL
Did
the OMVH Hearing Officer err when she found that the arresting officer did not lawfully
detain and stop the Respondent?
STANDARD
OF REVIEW
The
OMVH is authorized by law to determine contested cases arising from the
Department. See S.C. Code Ann. § 1-23-660. Therefore, the OMVH 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 OMVH. 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 OMVH’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).
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). 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). See generally Alex Sanders & John S. Nichols, Trial Handbook for South Carolina
Lawyers § 9.1 at 387 (4th ed. 2007) (discussing the burden of production).
Here, Officer Lapp’s testimony established the elements required to enforce a
suspension. The issue presented in this appeal is whether the OMVH Hearing
Officer erred in finding that Officer Lapp’s detention and arrest of Stack was
unlawful. 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 OMVH Hearing Officer).
The
Department argues that the OMVH Hearing Officer erred in finding that Officer
Lapp lacked reasonable suspicion to detain Stack. The court agrees. 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). The
South Carolina Supreme Court has extended this rule
to local police officers. See State v. Clark, 277
S.C. 333, 287 S.E.2d 143 (1982) (citing State v. Retford, 276
S.C. 657, 281 S.E.2d 471 (1981)). In this particular
case, Officer Lapp received a police dispatch regarding a possible drunk
driver; upon identifying the vehicle from the dispatch, Officer Lapp approached
the motorist after he had already parked his vehicle in a parking lot. Thus,
having been advised of a possible drunk driver, and having witnessed the
motorist voluntarily park his vehicle, Officer Lapp approached Stack based on a
reasonable suspicion that Stack had been driving while intoxicated. See United States v. Erwin, 155
F.3d 818 (6th Cir. 1998) (“[S]topping
[the motorist] was proper in light of the fact that both he and his vehicle
matched the description given by the general police broadcast of a possible
drunk or reckless driver.”); cf. United States v.
Hensley, 469 U.S. 221 (1985) (holding that police may stop an
individual and ask for identification when relying on information from a valid
police flyer or bulletin.). Moreover, reasonable suspicion and
probable cause may be established by hearsay. See United States v.
DeQuasie, 373 F.3d 509, 518 (4th Cir. 2004) (“It is well
settled that probable cause may be
founded upon hearsay and information received from
informants.”). Thus, the record shows that
Officer Lapp had reasonable suspicion to detain Stack. 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)).
Once Officer Lapp approached Stack, she personally observed that
he smelled of alcohol, was unsteady on his feet, and had bloodshot and glassy
eyes. Further, Stack refused to perform field sobriety tests, commenting that
he would “just fail [them].” (Hr’g Tr. at 5.) Finally, Stack
admitted to having driven while under the influence. See State
v. Sawyer, 283 S.C. 127, 129, 322 S.E.2d 449, 449
(1984) (“[T]he driver’s admission [that he had
been driving] should be treated as part of the officer’s sensory awareness of
the commission of the offense which satisfies the presence requirement
[under § 56-5-2950].”) (emphasis in original); see also Fradella v. Town of Mount Pleasant, 325
S.C. 469, 482 S.E.2d 53 (Ct. App. 1997) (holding that a driver’s admission to
police that the driver was involved in a collision, made twenty minutes after
the collision and not at the scene of the collision, was sufficient to justify
a warrantless arrest for DUI, when coupled with the officers’ other
observations). These facts establish probable cause to arrest Stack.
Therefore,
the OMVH Hearing Officer erred in holding that the Department failed to meet
its burden of proof and in finding that the detention and arrest were unlawful.
ORDER
For
the foregoing reasons, it is
ORDERED that the OMVH’s Final Order and Decision is REVERSED and the
Department’s suspension of Stack’s driver’s license is reinstated.
IT
IS SO ORDERED.
______________________________
Paige J. Gossett
Administrative
Law Judge
October 10, 2008
Columbia, South Carolina
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