ORDERS:
STATEMENT OF THE CASE
This matter is an appeal by the South Carolina Department of Motor Vehicles (Department) from a Final Order and Decision issued January 7, 2009 by the South Carolina Office of Motor Vehicle Hearings (OMVH). On December 8, 2008, the OMVH held an administrative hearing pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (2006). The Administrative Law Court (ALC or Court) has jurisdiction to hear this appeal pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2005). Appellant filed its Brief on March 26, 2009. Respondent did not file a Brief. Upon consideration of the brief and the Record on Appeal, the OMVH’s Final Order and Decision is reversed as set forth below.
BACKGROUND
“In South Carolina, operating a motor vehicle is a privilege of the State, not a right of the individual.” Taylor v. S.C. Dep’t. of Motor Vehicles, 368 S.C. 33, 36, 627 S.E.2d 751, 753 (Ct. App. 2006). Consistent with this principle, S.C. Code Ann. § 56-5-2950(a) (2006) provides in pertinent part:
A person who drives a motor vehicle in this State is considered to have given consent to chemical tests of his breath, blood, or urine for the purpose of determining the presence of alcohol or drugs or the combination of alcohol and drugs if arrested for an offense arising out of acts alleged to have been committed while the person was driving a motor vehicle while under the influence of alcohol, drugs, or a combination of alcohol and drugs. A breath test must be administered at the direction of a law enforcement officer who has arrested a person for driving a motor vehicle in this State while under the influence of alcohol, drugs, or a combination of alcohol and drugs.
Importantly, Section 56-5-2950(a) continues:
No tests may be administered or samples obtained unless the person has been informed in writing that: (1) he does not have to take the test or give the samples, but that his privilege to drive must be suspended or denied for at least ninety days if he refuses to submit to the tests and that his refusal may be used against him in court; (2) his privilege to drive must be suspended for at least thirty days if he takes the tests or gives the samples and has an alcohol concentration of fifteen one-hundredths of one percent or more; (3) he has the right to have a qualified person of his own choosing conduct additional independent tests at his expense; (4) he has the right to request an administrative hearing within thirty days of the issuance of the notice of suspension; and (5) if he does not request an administrative hearing or if his suspension is upheld at the administrative hearing, he must enroll in an Alcohol and Drug Safety Action Program.
Under S.C. Code Ann. § 56-5-2951(A) (2006), the license of a motorist who refuses to submit to the testing required under Section 56-5-2950(a) must be immediately suspended. However, under Section 56-5-2951(B)(2), a motorist who has his license so suspended may request an administrative hearing before the OMVH to challenge the suspension.
FACTS
On September 17, 2008, Officer Driggers of the Summerville Police Department responded to a call from Officer Catlit, who had stopped Respondent for a traffic stop. When Officer Driggers arrived, Respondent was in the driver’s seat and was the only occupant of the truck. Officer Driggers asked Respondent to exit his vehicle and read him his Miranda rights. She then administered two field sobriety tests to Respondent. Respondent failed these tests, and refused to complete any further field sobriety tests. Thus, Officer Driggers arrested Respondent for driving under the influence and transported him to the Summerville Police Department.
At the Police Department, Officer Driggers, who is a certified DataMaster operator, advised Respondent that he was being videotaped and again advised him of his Miranda rights. She advised Respondent of his implied consent rights. Officer Driggers then asked Respondent if he would like to submit to a breath test. Respondent refused. Based on this refusal, Respondent was issued a Notice of Suspension pursuant to Section 56-5-2951(A).
On September 25, 2008, pursuant to Section 56-5-2951(B)(2), Respondent filed a request for an administrative hearing to challenge the suspension. An administrative hearing was held on December 8, 2008. At the hearing, Respondent’s attorney contended that the lawfulness of the arrest was not established, because the Officer who made the traffic stop, Officer Catlit, did not testify at the hearing as to why he made the traffic stop. Thus, he maintained that the State had failed to carry its burden to prove that the arrest was lawful.
On January 7, 2009, the OMVH hearing officer issued a Final Order and Decision, in which she rescinded Respondent’s suspension. In doing so, she explained:
Generally, an officer is justified in stopping a vehicle when he has probable cause to believe that a traffic violation has occurred. State v. Butler, 343S.C.198, 539 S.E.2d 414, 416 (Ct. App. 2000). An officer may also stop and briefly detain a vehicle if he has reasonable suspicion that the occupants are involved in criminal activity. Here, Officer Driggers arrived on the scene of a traffic stop made by another officer and did not witness any of the events that led to the stop of [Beal’s] vehicle. Furthermore, the officer who stopped [Beal’s] vehicle did not appear at the hearing in this matter to offer any evidence regarding the reason for the stop. Therefore, because Petitioner did not present evidence to justify the stop of [Beal’s] vehicle, the arrest cannot be deemed to be lawful. Accordingly, I conclude that the suspension of [Beal’s] driver’s license or driving privilege must be rescinded.
The Department appeals.
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 OMVH are properly decided under the Administrative Procedures Act’s (APA) standard of review. 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) (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.
ISSUE ON APPEAL
Did the OMVH Hearing Officer err by determining that Respondent’s arrest was unlawful?
ANALYSIS
Respondent argues that the OMVH’s Final Decision and Order should be affirmed because the Department failed to establish the lawfulness of Respondent’s arrest for driving under the influence. Specifically, Respondent argues that because Officer Driggers did not witness the traffic stop made by Officer Catlit, and because Officer Catlit did not testify at the Hearing, the State failed to meet its burden to prove that the arrest was lawful.
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).
Here, the OMVH hearing officer found, and Respondent conceded at the Hearing that: (i) he had an odor of alcohol about his person at the time Officer Driggers arrived and (ii) he failed the field sobriety tests that he was asked to perform. Moreover, Officer Driggers testified that when she asked Respondent to exit his truck:
He appeared unsteady as he exited the truck. I asked him to walk to
the rear of the truck so we could discuss the traffic stop. While he was
out of the truck, he appeared unsteady. While he was closing the door,
he kind of used it to…got it closed and stood there for a minute and
used the side of the truck to guide him as he walked to the back of the
truck. He was unsteady while he was walking. I advised him of his
Miranda rights. And while speaking with him about the traffic stop,
I observed he had some difficulty pronouncing some words. We spoke
about why he was driving poorly.
I asked him to complete some field sobriety tests. I started
with the horizontal gaze nystagmus observation. I saw that his eyes
were tracking the stimulus together but not smoothly, there was lack
of smooth pursuit. There was a distinct and involuntary jerking of his
eyes while they were held at maximum deviation. And then he
stopped going along with the instructions. He stopped following the
stimulus and so I terminated the observation., wasn’t cooperating
with it.
I asked him to complete a walk and turn test. Asked him
To put his right foot in front of his left and stand with his hands
at his sides. He was unsteady while he did that. He used his arms
for balance while he was doing that and he interrupted the instructions
to say he wasn’t going to complete any additional field sobriety tests.
Based on the foregoing, uncontested evidence, the only reasonable inference to be drawn from the evidence is that Officer Driggers had probable cause to arrest Respondent for driving under the influence.
Officer Driggers’ testimony alone was sufficient to establish probable cause — there was no need for corroborating evidence. See State v. Goodstein, 278 S.C. 125, at 127, 292 S.E.2d 791, at 792 (S. C. Supreme Court 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). Finally, as noted above, Respondent conceded that he failed the field sobriety tests.
Respondent did not present any evidence that he was unlawfully arrested. The Respondent did not testify at the hearing. There is no evidence in the record that Officer Driggers did not follow proper procedures. In S. C. Department of Motor Vehicles v. Nelson, 364 S.C. 514, 523, 613 S.E.2d 544, 549 (Ct. App. 2005) the Court of Appeals 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 tosh and (5) refuse to submit to alcohol or drug testing.” The Court of Appeals did not interpret §§56-5-2950 and 56-5-2951 to require that the State prove “lawful arrest” as an element of the offense. Rather, once a prima facie case has been established, the burden shifts to the motorist to prove that the arrest was not lawful.
An officer can arrest for a misdemeanor when facts and circumstances observed or perceived by the officer justify the conclusion that a crime has been freshly committees; the officer need not observe all facts and circumstances at the crime scene. Fradella v. Town of Mount Pleasant,
325 S.C. 469, 482S.E.2d 53 (Ct. App. 1997).
For these reasons, the DMVH’s Final Order and Decision is reversed on the basis that Officer Driggers 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 the suspension of Respondent’s driver’s license and driving privileges is reinstated..
AND IT IS SO ORDERED.
______________________________
Carolyn C. Matthews
Administrative Law Judge
May 22, 2009
Columbia, South Carolina
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