This matter is an appeal by the South Carolina Department of Motor Vehicles (Department) from a Final Order and Decision issued on October 11, 2007 by the South Carolina Department of Motor Vehicle Hearings (DMVH). On September 12, 2007, the DMVH held an administrative hearing pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (Supp. 2007) to evaluate whether Respondents Driver’s License should be suspended based on his refusal to submit to a Breath test. The Administrative Law Court (ALC or Court) has jurisdiction to hear this appeal pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2007). Upon consideration of the arguments and the Record on Appeal, the DMVH’s Final Order and Decision is reversed as set forth below.
FACTS
The Record reveals that on July 1, 2007, at approximately 2:15 a.m., Trooper M. W. Jones of the South Carolina Highway Patrol stopped Respondent Rhodes for failure to stop at a Driver’s License Checkpoint. The Highway Patrol had set up a Driver’s license checkpoint in Laurens County on Highway 14 between the Town of Gray Court and the Interstate 385 interchange [Exit 19]. Reflecting signs were placed at both ends of the checkpoint. Marked patrol Cars were in the parking lot of a store, broadside to the road, so any vehicles approaching from either direction would see them. The Highway Patrol officers were wearing reflective vests, and carrying flashlights. Officer Jones’ flashlight had a traffic want on his flashlight.
Respondent Rhodes approached the traffic stop in his l996 Chevrolet truck at approximately fifty (50) miles per hour. Rhodes was not slowing; people were yelling at him and waving flashlights. Trooper Jones attempted to stop Rhodes with the traffic wand. When Respondent did not stop or slow down, the officers jumped out of the roadway. Officer Jones observed Respondent talking on his cell phone.
Respondent Rhodes slowed briefly, but continued to drive away. At that point, Trooper jones jumped in his patrol car, turned the blue lights, and stopped Respondent at the railroad tracks. Trooper Rhodes drew his weapon, because, as he testified: “..there’s almost a hundred percent chance of criminal activity when somebody doesn’t stop at a driver’s license checkpoint.” Trooper Jones ordered Respondent to show his hands, handcuffed him, and placed him inside the patrol car.
At that point, another Trooper arrived and found an open liquor bottle Respondent’s car. Officer Jones read Respondent his Miranda rights. After Trooper Jones specified each right, Respondent stated that he knew his rights; Respondent was then taken to the Laurens County jail. As Trooper Jones testified at the hearing: “He was under arrest anyway whether he was going to be charged for DUI or charged for driving through the driver’s license checkpoint, disobeying the signs or officers…Based on everything I saw of his driving, you know, I’ve been in law enforcement for twenty years, I was convinced that he was under the influence, everything that I could see. I saw nothing to the contrary of that.”
Trooper Jones then asked Respondent to step into the Breathalyzer room. He again read Respondent his Miranda rights, and advised him he was under arrest for DUI. He informed Respondent that if he refused the test, his license would be suspended. Trooper Jones then told Respondent of his right to a hearing, and advised him he was being videotaped. He again read the Miranda rights and read the DUI implied consent, which was entered into the record in written form. Respondent declined to take the Breath test. He was notified that his license was suspended.
Respondent did not testify at the Hearing. On October 11, 1007, the DMVH hearing officer issued a Final Order and Decision, in which she rescinded Respondent’s suspension. In doing so, she stated:
The arresting officer failed to prove whether the Respondent was lawfully
arrested for driving under the influence. There was no evidence of what
led the officer to believe that [Rhodes] was operating a motor vehicle while
under the influence of alcohol, drugs or a combination of alcohol or drugs.
The Department timely appealed.
STANDARD OF REVIEW
The OMVH is authorized by law to determine contested case hearings of the Department of Motor Vehicles. See S.C. Code Ann. § 1-23-660 (Supp. 2007). Therefore, appeals from the decisions of the DMVH are properly decided under the Administrative Procedures Act’s (APA) standard of review. In fact, Section 1-23-660 provides that all appeals from decisions of the OMVH hearing officers must be taken to the ALC pursuant to the ALC’s appellate rules of procedure. Thus, the Administrative Law Judge sits in an appellate capacity under the Administrative Procedures Act (APA) rather than as an independent finder of fact. In South Carolina, the provisions of the APA — specifically Section 1-23-380(A)(6) — govern the circumstances in which an appellate body may review an agency decision. That section states:
The court may reverse or modify the decision 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(A)(6) (Supp. 2007).
A decision is supported by “substantial evidence” when the record as a whole allows reasonable minds to reach the same conclusion reached by the agency. Bilton v. Best Western Royal Motor Lodge, 282 S.C. 634, 641, 321 S.E.2d 63, 68 (Ct. App. 1984). The well-settled case law in this state has also interpreted the “substantial evidence” rule to mean that a decision will not be set aside simply because reasonable minds may differ on the judgment. Lark v. Bi-Lo, Inc., 276 S.C. 130, 136, 276 S.E.2d 304, 307 (1981). The fact that the record, when considered as a whole, presents the possibility of drawing two inconsistent conclusions from the evidence does not prevent the agency’s findings from being supported by substantial evidence. Waters v. S.C. Land Resources Conservation Comm’n, 321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996); Grant v. S.C. Coastal Council, 319 S.C. 348, 353, 461 S.E.2d 388, 391 (1995).
In applying the substantial evidence rule, the factual findings of the administrative agency are presumed to be correct. Rodney v. Michelin Tire Co., 320 S.C. 515, 519, 466 S.E.2d 357, 359 (1996) (citing Kearse v. State Health and Human Servs. Fin. Comm’n, 318 S.C. 198, 200, 456 S.E.2d 892, 893 (1995)). Furthermore, the reviewing court is prohibited from substituting its judgment for that of the agency as to the weight of the evidence on questions of fact. Grant v. S.C. Coastal Council, 319 S.C. 348, 353, 461 S.E.2d 388, 391 (1995) (citing Gibson v. Florence Country Club, 282 S.C. 384, 386, 318 S.E.2d 365, 367 (1984). Finally, the party challenging an agency action has the burden of proving convincingly that the agency’s decision is unsupported by substantial evidence. Waters, 321 S.C. at 226, 467 S.E.2d at 917. In this case, Appellant has established, and the record reflects, that the Hearing Officer’s Order is clearly erroneous in view of the reliable, probative, and substantial evidence in the whole record.
ISSUE ON APPEAL
Did the OMVH Hearing Officer err by determining that Respondent’s arrest for Driving Under the Influence of Alcohol was unlawful?
Appellant contends that the OMVH’s Final Decision and Order should be reversed because the Department to established the lawfulness of Respondent’s arrest for driving under the influence.
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). In South Carolina, the issue of probable cause is a question of fact and is ordinarily a question for the factfinder. Wortman v. Spartanburg, 310 S.C. 1, 4, 425 S.E.2d 18, 20 (1992); Jones v. City of Columbia, 301 S.C. 62, 65, 389 S.E.2d 662, 663 (1990). However, where the evidence supports only one reasonable inference, the issue of probable cause becomes a matter of law for the court to determine. See Parrott v. Plowden Motor Co., 246 S.C. 318, 323, 143 S.E.2d 607, 609 (1965) (“While the question of want of probable cause is essentially a question of fact and is ordinarily for the determination of the jury, we are of opinion that the evidence will support no finding other than that defendant had probable cause . . .”); see also Etheredge v. Richland Sch. Dist. One, 341 S.C. 307, 310, 534 S.E.2d 275, 277 (2000) (“[W]hile gross negligence ordinarily is a mixed question of law and fact when the evidence supports but one reasonable inference, the question becomes a matter of law for the court.”).
Probable Cause for Arrest
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. Baccus, 367 S.C. at 49, 625 S.E.2d at 220. 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).
As Trooper Jones testified at the hearing: “[Rhodes] was under arrest anyway whether he was going to be charged for DUI or charged for driving through the driver’s license checkpoint, disobeying the signs or officers…Based on everything I saw of his driving, you know, I’ve been in law enforcement for twenty years, I was convinced that he was under the influence, everything that I could see. I saw nothing to the contrary of that.” There is no question that Respondent did not stop at the checkpoint, and there was probable cause to arrest him for that offense. His failure to stop, coupled with the open liquor bottle discovered in his truck, established probable cause to arrest him for driving under the influence of alcohol The only reasonable inference to be drawn from the evidence is that Officer Jones had probable cause to arrest Respondent for driving under the influence.
Officer Jones’ testimony alone was sufficient to establish probable cause — there was no need for corroborating evidence. See Goodstein, 278 S.C. at 127, 292 S.E.2d at 792 (1982) (holding that the testimony of an arresting officer, which was given at trial without objection, was alone sufficient to prove that the arresting officer had probable cause to arrest a motorist for driving under the influence).
During Closing Argument, counsel for Respondent stated that “..we still contest all the issues….” He did not make a Motion to Dismiss on that basis. Issues that are neither raised to nor ruled upon by the trial court are not preserved for appellate review. Flowers v. S.C. Dep’t of Highways and Pub. Transp., 309 S.C. 76, 79, 419 S.E.2d 832, 834 (Ct. App. 1992).
There was no contemporaneous objection to Officer’s Jones’ testimony, and no Motion for Mistrial on the basis of the alleged improper traffic stop. Respondent’s attorney did not cross-examine Officer Jones. It is axiomatic that in order to preserve an issue for appellate review, a party must make a contemporaneous objection, and an issue which is not properly preserved cannot be raised for the first time on appeal. State v. Hoffman, 312 S.C. 386, 393, 440 S.E.2d 869, 873 (1994). An issue must be both raised to and ruled upon by the trial judge to be preserved for appellate review. State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 693 (2003).
For these reasons, the DMVH’s Final Order and Decision is reversed on the basis that Officer Jones had probable cause to arrest Respondent for driving under the influence.
ORDER
IT IS HEREBY ORDERED that the OMVH’s Final Order and Decision is REVERSED.
AND IT IS SO ORDERED.
______________________________
Carolyn C. Matthews
Administrative Law Judge
June 8, 2009
Columbia, South Carolina
