ORDERS:
ORDER
STATEMENT
OF THE CASE
This matter is an appeal by Appellant Ernest Dana Vera from a
Final Order and Decision of the South Carolina Office of Motor Vehicle Hearings
(“OMVH”) issued February 9, 2006.
The OMVH’s Final Order and Decision, which sustained the administrative suspension
of Appellant’s driver’s license, was issued following a hearing held pursuant
to S.C. Code Ann. § 56-5-2951(B)(2) (Supp. 2004). In this appeal, Appellant makes
several arguments relating to the lawfulness of Appellant’s arrest for driving under
the influence (“DUI”), Appellant’s alleged refusal to submit to a breath test,
and the OMVH’s hearing officer’s conduct at the administrative hearing. The
Administrative Law Court (ALC) has jurisdiction to review this matter pursuant
to S.C. Code Ann. § 1-23-660 (Supp. 2008). Upon consideration of the briefs,
the OMVH’s Final Order and Decision is affirmed.
BACKGROUND
On December
3, 2005, at approximately 11:30 p.m., Trooper R.D. Gatch of the South Carolina
Highway Patrol was traveling on S.C. 654 when he came upon a two-car collision
involving Appellant. In speaking with Appellant, Trooper Gatch noticed an odor
of alcohol coming from Appellant’s person. He asked Appellant if he had been
drinking. Appellant stated that he had consumed three beers at a bar earlier
that night. Trooper Gatch administered the Horizontal Gaze Nystagmus (HGN)
field sobriety test to Appellant. Thereafter, Trooper Gatch placed Appellant under
arrest for DUI and transported him to a detention center for a DataMaster test.
After
arriving at the detention center, Trooper Gatch advised Appellant of his
implied consent rights. Appellant did not submit to the DataMaster test, and
his driver’s license was suspended pursuant to S.C. Code Ann. § 56-5-2951(A) (Supp.
2004).
Appellant subsequently requested an administrative
hearing to challenge his suspension. The hearing was held on January 9, 2006
by Administrative Hearing Officer Kevin Patterson (“AHO Patterson”). On February 9, 2006, AHO Patterson issued
a Final Order and Decision sustaining the suspension of Appellant’s driver’s
license. Thereafter, on March 8, 2006, Administrative Hearing Officer Robert Harley
(“AHO Harley”) issued, sua sponte, an Order that rescinded Appellant’s
suspension based upon the South Carolina Court of Appeals’ decision in Starnes
v. S.C. Dep’t of Pub. Safety, 342 S.C. 216, 535 S.E.2d 665 (Ct. App. 2000).
The Department later appealed AHO Harley’s Order to the ALC. In an Order
dated April 9, 2007, Administrative Law Judge John D. McLeod determined that
AHO Harley lacked the authority to issue his Order. See S.C. Dep’t
of Motor Vehicles v. Vera, 06-ALJ-21-0325-AP (April 9, 2007). He therefore
vacated AHO Harley’s Order and reinstated AHO Patterson’s Final Order and
Decision. Id. On May 11, 2007, Appellant filed a Notice of Appeal with
the ALC, appealing AHO’s Patterson’s reinstated Final Order and Decision.
ISSUES
ON APPEAL
1. Did AHO Patterson err by finding that Appellant failed the
Horizontal Gaze Nystagmus Test?
2. Did AHO Patterson err by concluding that Appellant was
lawfully placed under arrest for DUI?
3. Did AHO Patterson err by concluding that the DataMaster
videotape shows Appellant refusing to submit to a breath test?
4. Did AHO Patterson exceed his authority as a neutral
decision-maker in this case?
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 (Supp. 2008). Therefore, the OMVH is an
“agency” under the Administrative Procedures Act (“APA”). See S.C. Code
Ann. § 1-23-505(2) (Supp. 2008). As such, the APA’s standard of review governs
appeals from decisions of the OMVH. See S.C. Code Ann. § 1-23-380 (Supp.
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) (Supp. 2008). See S.C. Code
Ann. § 1-23-600(E) (Supp. 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) (Supp. 2008).
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). 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
HGN
Test
Appellant
argues that AHO Patterson erred by finding that Appellant failed the HGN test.
Specifically, Appellant contends that Trooper Gatch did not provide any
testimony at the administrative hearing to support such a finding.
According
to the transcript, Trooper Gatch provided the following testimony at the
hearing regarding the HGN test:
Due to the vehicles in the roadway
at the time, I could not perform all three field sobriety tests, but I did do
the HGN and I felt that he was over the limit of .038, so I placed him under
arrest for driving under the influence.
Appellant
contends that this testimony demonstrates that Trooper Gatch did not conclude
that Appellant was legally intoxicated, since the legal limit with respect to South Carolina’s DUI laws is .08%. See S.C. Code Ann. § 56-5-2933. Thus, Appellant
argues that AHO Patterson erred by finding that Appellant failed the HGN test.
The Department, on the other hand, contends that the reference to “.038” is an
“apparent transcription error.” It points to the closing argument of
Appellant’s attorney, where, according to the transcript, the attorney stated
that “the trooper testified that he felt in his opinion that the petitioner was
over .08.”
The Department also asserts that the “clear implication” of Trooper Gatch’s
testimony is that Appellant failed the HGN test since Trooper Gatch cited
Appellant’s performance on the test as a contributing factor in his decision to
arrest Appellant for DUI.
The
court finds the Department’s argument to be more persuasive. The transcript
itself is inconsistent as to whether Trooper Gatch said .038 or .08, and Appellant
has not moved to supplement the Record to include the audiotape of the
hearing. As noted above, the possibility of drawing two inconsistent
conclusions from the evidence does not prevent the agency’s findings from being
supported by substantial evidence. Hargrove, 360 S.C. at 290, 599
S.E.2d 604, 611. In this case, where the transcript is unclear, it is sensible
to defer to the findings of the OMVH hearing officer, who was present at the
hearing. Furthermore, while Trooper Gatch did not expressly testify that Appellant
failed the HGN test, AHO Patterson was permitted to make reasonable inferences
based on the evidence presented to him. See, e.g., Garrett v.
Pilot Life Ins. Co., 241 S.C. 299, 303, 128 S.E.2d 171, 173 (1962) (noting
that courts may draw “reasonable and legitimate inferences” based on testimony
taken in open court). Here, it was reasonable for AHO Patterson to infer that Trooper
Gatch concluded that Appellant failed the HGN test since Trooper Gatch cited
Appellant’s performance on the test as a basis for his decision to arrest
Appellant for DUI. Accordingly, the court concludes that AHO Patterson’s
finding that Appellant failed the HGN test was supported by substantial
evidence.
Lawfulness
of Appellant’s Arrest
Next,
Appellant argues that AHO Patterson erred by finding that Appellant was
lawfully arrested for DUI. The court disagrees.
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.
Here,
Trooper Gatch testified without objection that: (i) he arrived at the scene of an
accident involving Appellant at approximately 11:30 p.m. on a Saturday night; (ii)
when he arrived, both drivers were still present at the scene; (iii) while
speaking with Appellant, he noticed “an odor of alcohol” coming from Appellant’s
person; (iv) Appellant admitted to drinking three beers at a bar earlier that
night; and (v) based on Appellant’s performance on the HGN field sobriety test,
Trooper Gatch decided to arrest Appellant for DUI. The court concludes that, taken
together, this testimony was sufficient to establish that Trooper Gatch had
probable cause to arrest Appellant for DUI. Cf. State v. Martin,
275 S.C. 141, 268 S.E.2d 105 (1980) (holding that DUI arrest was lawful where
officer, who had been dispatched to the scene of an accident, found defendant
to be “highly intoxicated,” defendant admitted that he was the driver of one of
the vehicles involved in the accident, and crowd was gathered around the
accident scene, thereby indicating that the accident had recently occurred).
Appellant,
however, also contends that his arrest for DUI was unlawful since Trooper Gatch
did not present any evidence to show that he read Appellant his Miranda rights
prior to administering the HGN test as required by S.C. Code Ann. § 56-5-2953.
The court disagrees. Relying on S.C. Code Ann. § 56-5-2951(F) and S.C. Dep’t of Motor Vehicles v. Nelson, 364 S.C. 514, 613 S.E.2d 544
(Ct. App. 2005), the ALC has consistently held that law enforcement’s
compliance with Section 56-5-2953 is not a relevant issue at implied consent
hearings. See, e.g., S.C. Dep’t of Motor Vehicles v. Carlisle,
06-ALJ-21-0535-AP (August 29, 2007); Wiggins v. S.C. Dep’t of Motor Vehicles,
08-ALJ-21-0301-AP (February 12, 2009).
Furthermore,
Appellant’s reliance on City of Rock Hill v. Suchenski, 374 S.C. 12, 646
S.E.2d 879 (2007) is misplaced. In that case, the defendant, who was charged
with a violation of S.C. Code Ann. § 56-5-2933 (Driving with an Unlawful
Alcohol Concentration), argued that the arresting officer’s failure to provide
a complete videotape of the incident-site events as required by Section
56-5-2953 mandated dismissal of his charges. On appeal, the South Carolina
Supreme Court agreed with the defendant. Specifically, the Supreme Court
reasoned:
[Section 56-5-2953(B)] provides,
“Failure by the arresting officer to produce the videotapes required by this
section is not alone a ground for dismissal of any charge made pursuant to
Section 56-5-2930, 56-5-2933, or 56-5-2945 if [exceptions apply] ...”
Conversely, failure to produce videotapes would be a ground for dismissal if no
exceptions apply.
Suchenski,
374 S.C. at 16, 646 S.E.2d at 881 (emphasis omitted). However, in the present
case, unlike in Suchenski, the underlying hearing was not held to
adjudicate a “charge made pursuant to Section 56-5-2930, 56-5-2933, or
56-5-2945.” Moreover, unlike in Suchenski, there is an applicable
statute – Section 56-5-2951(F) – that states that compliance with Section
56-5-2953 is not a relevant issue in hearings such as the one held below.
Therefore, Suchenski is inapplicable to the present case.
DataMaster
Videotape
Next, Appellant argues that AHO Patterson erred in concluding that the DataMaster
videotape shows Appellant refusing to submit to a breath test. The court
disagrees.
The DataMaster
videotape shows Trooper Gatch giving Appellant a copy of the implied consent
advisement form. A few moments later, it shows Trooper Gatch making the
following statement to Appellant: “I am of offering you a breath test, which
you said that you were going to refuse.” The videotape then shows Appellant
nodding in affirmation. Thus, despite Appellant’s claims to the contrary, the
videotape does present evidence that Appellant refused to submit to the breath
test. Accordingly, the Final Order and Decision will not be reversed on this
basis.
AHO
Patterson’s Authority
Finally,
Appellant argues that AHO Patterson did not act as a neutral decision-maker in
this case. Specifically, Appellant contends that AHO Patterson asked Trooper
Gatch “question after question in an effort to make his case for him.” The
court disagrees.
In
dealing with similar matters, South Carolina appellate courts have stated the
following:
A grave responsibility rests upon a
trial judge. It is his duty to see to it that justice be done in every case,
if it can be done according to law; and, if he thinks that the attorney for
either party, either from inadvertence or any other cause, has failed to ask
the witnesses the questions necessary and proper to bring out all the testimony
which tends to ascertain the truth of the matter under investigation, we can
see no legal objection to his propounding such questions; but, of course, he
should do so in a fair and impartial manner . . .
State v.
Nicholson, 366 S.C. 568, 576-77, 623 S.E.2d 100, 104 (Ct. App. 2005)
(quoting State v. Gaskins, 284 S.C. 105, 119, 326 S.E.2d 132, 140-41
(1985)). Upon a review of the transcript, the court finds no error here.
While AHO Patterson did ask Trooper Gatch several questions, he did not act in
an unfair or partial manner in doing so.
ORDER
IT
IS THEREFORE ORDERED that the OMVH’s Final Order and Decision is AFFIRMED.
AND
IT IS SO ORDERED.
______________________________
Carolyn
C. Matthews
Administrative
Law Judge
March 3, 2009
Columbia, South Carolina
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