South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
SCDMV vs. Matthew Stack

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Appellant:
South Carolina Department of Motor Vehicles

Respondents:
Matthew Stack
 
DOCKET NUMBER:
07-ALJ-21-0478-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 Office of Motor Vehicle Hearings (“OMVH”)[1] 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,[2] 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)[3]; 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,[4] 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.[5]

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



[1] Pursuant to 2008 S.C. Act No. 279, the name of the Department of Motor Vehicle Hearings (“DMVH”) was changed to the Office of Motor Vehicle Hearings (“OMVH”) effective October 1, 2008.

[2] Stack did not file an appellate brief in this matter as required by ALC Rule 37(A).

[3] The APA was amended and renumbered via 2008 S.C. Act No. 334. Accordingly, all citations to the APA in this Order are to the recently amended and renumbered sections.

[4] Whether or not the Department must prove the second element set forth in Nelson is not completely clear in light of other South Carolina appellate cases. For instance, in Summersell v. South Carolina Department of Public Safety, 334 S.C. 357, 513 S.E.2d 619 (Ct. App.), vacated in part on other grounds, 337 S.C. 19, 522 S.E.2d 144 (1999), the Court of Appeals rejected a motorist’s claim that the Department of Public Safety was required to prove, at an implied consent hearing, that he had been driving. Specifically, the court held that “[n]othing in the statutory provisions requires a specific finding [that] the individual was operating a motor vehicle in this state.” Summersell, 334 S.C. at 368, 513 S.E.2d at 625. Additionally, in State v. Martin, 275 S.C. 141, 147, 268 S.E.2d 105, 108 (1980), the Supreme Court held that “[t]he mere fact that the [breathalyzer] test was not made at the direction of an officer who actually viewed the respondent’s vehicle in motion does not render the test illegal.”

[5] During the OMVH hearing, Stack’s attorney challenged whether there was “probable cause” for the stop, and in the OMVH’s final decision, the Hearing Officer found that there was not “probable cause” for the stop. It is important to note that “reasonable suspicion” is the standard for evaluating the lawfulness of a stop, while “probable cause,” a more stringent standard, is used for evaluating the lawfulness of an arrest. See State v. Lesley, 326 S.C. 641, 643, 486 S.E.2d 276, 277 (Ct. App. 1997) (“Police may stop a motor vehicle and briefly detain and question an occupant if they have a reasonable suspicion that the occupant is involved in criminal activity.”) (citing Michigan v. Long, 463 U.S. 1032 (1983)); State v. Hamilton, 251 S.C. 1, 4, 159 S.E.2d 607, 609 (1968) (stating that whether an arrest is “constitutionally valid” depends on whether “at the moment the arrest was made, the officers had probable cause to make it”) (citing Beck v. Ohio, 379 U.S. 89 (1964)). Thus, it appears the sole basis of Stack’s argument is to challenge the sufficiency of the stop and he does not appear to challenge whether Officer Lapp lacked probable cause to arrest him for DUI. However, to the extent Stack challenges both the stop and the arrest, the court finds that neither was unlawful. 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)).


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