ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before this tribunal pursuant to S.C. Code Ann. § 50-21-114(F) (Supp.
2002) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2002) on the request of Respondent
Richard Hutson for a hearing to challenge the administrative suspension of his boating privileges by
Petitioner South Carolina Department of Natural Resources (Department or DNR) for his failure to
submit to a blood alcohol test upon his arrest for boating under the influence. Specifically,
Respondent argues that, because he was not lawfully under arrest for boating under the influence of
alcohol, his refusal to submit to a blood alcohol test was justified and cannot, therefore, be grounds
for the suspension of his boating privileges. The Department, however, contends that the arresting
officers had probable cause to arrest Respondent for boating under the influence (BUI) and that,
because Respondent was lawfully under arrest, his refusal to submit to a blood alcohol test requires
that his boating privileges be suspended for 180 days.
After timely notice to the parties, a hearing of this case was held at the Administrative Law
Judge Division in Columbia, South Carolina, on April 2, 2003. Based upon the arguments and
evidence presented at the hearing and upon the applicable law, I find that the Department’s
suspension of Respondent’s boating privileges must be sustained.
STIPULATIONS OF FACT
On the record in open court at the hearing of this case, the parties stipulated to the following
facts:
1.The sole reason the DNR officers approached Respondent’s boat on the night in
question was to perform a routine safety check.
2.At the time of the arrest, Respondent had the odor of alcohol about his person, and
was unable to successfully complete all of the field sobriety tests administered to him by the DNR
officers.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the hearing
of this matter, and taking into account the credibility and accuracy of the evidence, I make the
following Findings of Fact by a preponderance of the evidence:
On the evening of August 2, 2002, DNR Officers Stuart White and Ferrallis McKnight were
patrolling Bohickett Creek near Rockville, South Carolina, and conducting routine safety checks of
boats in the area prior to a boat regatta scheduled for the following day. At approximately 11:15
p.m., Officers White and McKnight approached and stopped Respondent’s boat to perform a safety
check of the watercraft. At the time of the stop, Respondent’s boat was traveling at idle speed and
the DNR officers did not observe any problems with the manner in which Respondent was operating
the boat.
While conducting the safety check, Officer White noticed that Respondent had an odor of
alcohol about his person, bloodshot eyes, slurred speech, and a lack of physical coordination. Based
upon his suspicion that Respondent was intoxicated, Officer White administered a series of field
sobriety tests on Respondent, several of which Respondent was unable to complete successfully or
had significant difficulty in completing. During the stop, Respondent told Officer White that he had
consumed a few beers that evening and that he intended to idle his boat back to his dock on
Steamboat Creek, a creek some two miles up the North Edisto River from Bohickett Creek. Based
upon his observations, the results of the field sobriety tests, and Respondent’s statements, Officer
White placed Respondent under arrest for boating under the influence of alcohol and transported him,
with the assistance of Officer McKnight and another DNR Officer, to the Charleston County
Detention Center.
At the Detention Center, Respondent refused to submit to a blood alcohol test to be
conducted by a DNR Officer, despite having been warned of the potential consequences of such
refusal. As a result of his refusal, the Department suspended Respondent’s privilege to operate a
water device in South Carolina for 180 days.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
The administrative suspension of boating privileges for the refusal to submit to a blood alcohol
test is governed by S.C. Code Ann. § 50-21-114(E) (Supp. 2002), which provides that:
If a person under arrest refuses, upon the request of a law enforcement officer, to
submit to chemical tests provided in subsection (A), none may be given, but the
department, on the basis of a report from the law enforcement officer that the arrested
person was operating a water device within this State while under the influence of
alcohol, drugs, or a combination of them, and that the person had refused to submit
to the tests, must suspend his privilege to perform the above-mentioned activities for
one hundred and eighty days. . . . The report of the arresting officer must include
what grounds he had for believing the arrested person was conducting the above-mentioned activity while under the influence of alcohol, drugs, or a combination of
them.
Id. (emphasis added). In the instant case, Respondent does not contest the fact that he refused to
submit to a blood alcohol test, and he admits that he was properly warned of the possible
consequences of his refusal to submit to the test. Further, Respondent does not contest the fact that
Officer White submitted a report describing the grounds he had for believing Respondent was
operating his boat while under the influence of alcohol. Rather, the sole question at issue in this
matter is whether Respondent was lawfully under arrest at the time he refused to submit to the blood
alcohol test.
Here, Respondent contends that he was not lawfully under arrest for boating under the
influence when he refused to submit to a blood alcohol test. In particular, he maintains that, because
he was traveling at idle speed and was not observed to be having any difficulty operating the boat at
the time he was stopped by the DNR officers, the officers did not have probable cause to arrest him
for boating under the influence pursuant to S.C. Code Ann. § 50-21-112(A) (Supp. 2002). This
contention must fail.
“The fundamental question in determining whether an arrest is lawful is whether there was
‘probable cause’ to make the arrest.” Wortman v. City of Spartanburg, 310 S.C. 1, 4, 425 S.E.2d
18, 20 (1992). Probable cause for an 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.’” State v. Moultrie, 316 S.C. 547, 552,
451 S.E.2d 34, 37 (Ct. App. 1994) (quoting United States v. Miller, 925 F.2d 695, 698 (4th Cir.
1991)). Stated otherwise, “[a] police officer has probable cause to arrest without a warrant where
he, ‘in good faith, believes that a person is guilty of a felony, and his belief rests on such grounds as
would induce an ordinarily prudent and cautious man, under the circumstances, to believe likewise
. . . .’” State v. Roper, 274 S.C. 14, 17, 260 S.E.2d 705, 706 (1979) (quoting State v. Swilling, 249
S.C. 541, 558, 155 S.E.2d 607, 617 (1967)). Further, in determining whether probable cause exists,
“all the evidence within the arresting officer’s knowledge may be considered, including the details
observed while responding to information received.” Roper, 274 S.C. at 17, 260 S.E.2d at 706; see
also Moultrie, 316 S.C. at 552, 451 S.E.2d at 37 (“In assessing whether an officer has probable cause,
the totality of the circumstances surrounding the information at the officer’s disposal must be
considered.”).
Pursuant to S.C. Code Ann. § 50-21-112(A)(1) (Supp. 2002), the section under which
Respondent was charged, “[i]t is unlawful for a person to operate a moving motorized water device
or water device undersail upon the waters of this State while under the: (1) influence of alcohol to
the extent that the person’s faculties to operate are materially and appreciably impaired[.]” Id. Here,
a reasonable and ordinarily prudent man placed in Officer White’s position and armed with his
knowledge would conclude that Respondent was operating, and intended to further operate, a moving
motorized water device in State waters while his faculties were materially and appreciably impaired
by the influence of alcohol. At the time of the stop, Respondent was operating a moving motor boat
in Bohickett Creek, and was unable to successfully complete several field sobriety tests designed to
indicate whether a person’s faculties are impaired due to intoxication. Further, Respondent stated
that he had consumed alcohol that night and that he intended to continue operating his boat that
evening. Moreover, while Respondent may have only been operating his boat at idle speed and may
not have outwardly had difficulty steering his boat at that time of his arrest, these facts do not
preclude a finding that, under the totality of the circumstances, the arresting officer had probable
cause to arrest Respondent for boating under the influence of alcohol.
Finally, it must be recognized that this proceeding is not an inquiry into the merits of the BUI
charge, but rather is a limited review of the Department’s application of the implied consent statute.
To paraphrase the Court of Appeals in Summersell,
the question before [this tribunal] was not whether the state had proved its case, but
whether the arresting officer had probable cause to believe [Respondent] had
committed the offense of [boating] under the influence. This is not a trial in regard
to the guilt or innocence of [Respondent] on a [BUI] charge. Rather, the gravamen
of the administrative hearing is a determination of the efficacy and applicability of the
implied consent law.
Summersell, 334 S.C. at 368-69, 513 S.E.2d at 625 (emphasis in original). In this case, the
Department’s suspension of Respondent’s boating privileges complied with the applicable implied
consent law, Section 50-21-114(E), and must be sustained.
ORDER
Based upon the Stipulations of Fact, Findings of Fact, and Conclusions of Law stated above,
IT IS HEREBY ORDERED that the Department’s suspension of Respondent’s boating
privileges for 180 days pursuant to S.C. Code Ann. § 50-21-114(E) (Supp. 2002) is SUSTAINED.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
May 7, 2003
Columbia, South Carolina |