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 Division of Motor Vehicle Hearings
(DMVH). The DMVH’s Final Order and Decision was issued in connection with an
administrative hearing that it held pursuant to S.C. Code Ann. §
56-5-2951(B)(2) (2006). The Administrative Law Court (ALC or Court) has
jurisdiction to hear this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp.
2005). Upon consideration of the briefs, the DMVH’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 on to state:
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 to challenge the suspension.
Importantly, prior to
January 1, 2006, the Department’s Office of Administrative Hearings held the
hearings requested under Section 56-5-2951(B)(2). However, in the summer of
2005, S.C. Code Ann. § 1-23-660 was extensively amended by Act No. 128, § 22,
2005 S.C. Acts 1503. Pursuant to Act No. 128, the DMVH was created as a
division of the ALC and, as of January 1, 2006, “the duties, functions, and
responsibilities of all hearing officers and associated staff” of the
Department were transferred to the DMVH. See S.C. Code Ann. § 1-23-660
(Supp. 2005). Therefore, it is now the DMVH that conducts these hearings.
FACTS
On April 21, 2006, while running stationary radar,
Officer Q.D. Hallman observed Respondent speeding and almost hitting another
vehicle in the rear. After he stopped Respondent, he smelled an odor of
alcohol on Respondent’s breath. He asked Respondent to exit his vehicle and
read Respondent his Miranda rights. He then administered field sobriety tests to
Respondent. Respondent failed these tests. Thereafter, Officer Hallman
arrested Respondent for driving under the influence and transported Respondent to
the Lexington County Detention Center.
Upon reaching the Lexington County Detention Center, Officer Hallman, who is a certified DataMaster operator, advised Respondent of
his implied consent rights. Officer Hallman 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 April 26, 2006, 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 May 22, 2006.
At the hearing, Officer Hallman did not offer into evidence a copy of the
videotape of the incident site. Moreover, on cross-examination, Officer
Hallman admitted that he had not yet complied with Respondent’s Rule 5,
SCRCrimP, request for a copy of such videotape. According to Respondent’s
attorney, the Rule 5 request was made on April 26, 2006.
Because of this failure by Officer Hallman to produce the videotape,
Respondent’s attorney argued during closing that the lawfulness of the arrest
was not established:
[I]f the State can’t prove
that they complied with the law by producing the video, then obviously the
arrest is not lawful because that’s part of the requirement now of the State to
have to prove that in fact they videotaped the stop . . . we would challenge
the State’s position that they lawfully suspended his license on the date that
he was actually arrested because they failed to establish that in fact they
complied with 56-5-2953(A)(1)(a) of the South Carolina Code of Laws. So for
that reason, we submit that the State has failed to carry its burden of proof
that the arrest was lawful.
On June 12, 2006, the DMVH hearing officer issued
a Final Order and Decision, in which she rescinded Respondent’s suspension. In
doing so, she explained:
I find that Trooper Hallman
did not offer any testimony to show that Respondent was advised of his Implied
Consent Rights in writing according to Section 56-5-2950 and Sled Policies and
procedures. I conclude as a matter of Law that Petitioner has failed to meet
its burden of proof. Accordingly, the relief requested by Respondent must be
granted.
The
Department now appeals.
ISSUES ON APPEAL
1. Should the Department’s appeal be dismissed on the grounds
that the Department violated ALC Rule 36(A) by failing to timely file the
Record on Appeal with this Court?
2. Should the Department’s appeal be dismissed on the
grounds that the Department violated ALC Rule 37(A) by failing to timely file
its appellate brief with this Court?
3. Did the DMVH hearing officer err in rescinding
Respondent’s suspension on the grounds that the Department failed to meet its
burden of proof in establishing that Respondent was advised in writing of his
Section 56-5-2950(a) rights?
4. Should the DMVH hearing officer’s Final Order and Decision
be affirmed on the grounds that Officer Harmon’s arrest of Respondent was
unlawful?
STANDARD
OF REVIEW
The DMVH is authorized by law to determine
contested case hearings of the Department of Motor Vehicles. See S.C.
Code Ann. § 1-23-660 (Supp. 2005). 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 now provides that all appeals
from decisions of the DMVH 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) (2005).
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.
DISCUSSION
Before discussing the substantive issues
presented by this appeal, it is necessary to address Respondent’s arguments
that the Department’s appeal should be dismissed based on its failure to timely
file the Record, as well as its appellate brief, with the ALC.
Timeliness of Filing of Record with
ALC
Respondent argues that the Department’s appeal
should be dismissed on the grounds that the Department violated ALC Rule 36(A)
by failing to timely file the Record with the ALC. I disagree.
ALC Rule 36(A) provides:
Within
thirty (30) days of receipt of the notice of assignment to an administrative
law judge and the transcript, the agency with possession of the Record shall file the Record with the Court and serve one (1) copy on each party to
the appeal, unless the time for filing the Record is extended by the
Administrative Law Judge assigned to the appeal.
(emphasis added). Because the DMVH was the agency that held
the administrative hearing and, thus, was the agency in possession of the
Record, it, not the Department, was responsible for filing the Record with the
ALC. Importantly, pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2005), the DMVH
is completely independent from the Department.
Notably, the Department complied with the thirty-day
time limit applicable to it under ALC Rule 33 with respect to notifying the ALC, the DMVH and Respondent of its appeal. It
filed its Notice of Appeal, along with a copy of its transcript request, with
the ALC on June 23, 2006, eleven days after the DMVH hearing officer issued her
Final Order and Decision. On the same day, it filed the transcript request,
along with a copy of its Notice of Appeal, with the DMVH and served Respondent
with copies of these documents. These filings were thus made within the
thirty-day time limit required by ALC Rule 33. Therefore, I find that the
Department’s appeal should not be dismissed on this ground.
Timeliness of Department’s Brief
Next, Respondent argues that the Department’s
appeal should be dismissed on the grounds that the Department violated ALC Rule
37(A) by failing to timely file its appellate brief with the ALC. I disagree.
ALC Rule 37(A) provides in pertinent part: “The
party first noticing the appeal shall file an original and two copies of its
brief within fifteen (15) days after receipt of the Record on Appeal.” (emphasis
added). ALC Rule 3(C) explains how this time period is calculated when the
Record is served on the parties by mail. It provides:
Whenever
a party has the right or is required to do some act or take some proceedings
within a prescribed period after the service of a notice or other paper upon
him and the notice or paper is served upon him by mail or upon a person
designated by statute to accept service, five days shall be added to the
prescribed period.
(emphasis added). ALC Rule 36(B) sets forth the items that
must be included in the Record. It states: “The Record shall consist of the
following: (1) All pleadings, motions, and intermediate rulings; (2) All
evidence received or considered; (3) A statement of matters judicially noticed;
(4) All proffers of proof of excluded evidence; (5) The final order or decision
which is subject to review; (6) The transcript of the testimony taken during
the proceeding. (emphasis added).
Here, although the DMVH filed most of the Record
on August 7, 2006, it did not file the complete Record until September 5, 2006,
the date on which it filed the transcript of the hearing. Assuming that the
transcript was served on the parties by mail, pursuant to ALC Rule 37(A) and ALC Rule 3(C), the Department had until
September 25, 2006 to file its brief. Thus, because the Department filed its
brief on September 25, 2006, it likely did not violate ALC Rule 37(A).
Moreover, under ALC Rule 38, this Court is permitted, but not required,
to dismiss appeals for failure to comply with the ALC Rules. In this case, the
Department’s brief, if it was indeed untimely, was only untimely by five days.
Thus, any violation by the Department of Rule 37(A) was minor. Therefore, the
Department’s appeal will not be dismissed on this ground and I now turn to the
substantive issues presented by this appeal
Propriety of Implied Consent Rights
Advisement
The Department argues that the DMVH hearing
officer erred in rescinding Respondent’s suspension on the grounds that the
Department failed to prove that Respondent was advised in writing of his Section
56-5-2950(a) rights. I agree.
During
cross-examination, Officer Hallman testified that:
The next thing, first thing I
always do is once I take off the handcuffs, of course, and everything is put him
into the DataMaster room and put in the videotape, make sure it’s recording,
give advisement of implied consent rights form, fill out the top portion, name,
license number, state and birth date, go in the other room and read it to Mr.
Upton, which is signed for . . .
Right after this testimony was given, the following exchange
occurred:
Respondent’s Attorney: And so this form here, advisement of implied
consent rights, this is what you signed and what you had him sign?
Officer
Hallman: Yes, sir. That’s the copy,
three copies.
. . .
Respondent’s Attorney: Okay. Now, did you actually read him what’s on
this form?
Officer Hallman: Yes, sir. I’m required to read it to him and
provide him a copy.
Based on this testimony, it appears that Officer Hallman did provide Respondent with a written copy of the implied consent advisement form.
In fact, in his brief, Respondent concedes that Officer Hallman testified to this
fact at the hearing.
Because Respondent did not present any evidence
that contradicted, or questioned the accuracy of Officer Hallman’s testimony
regarding this issue, I find that Officer Hallman’s testimony alone was
sufficient to establish that Respondent was advised of his Section 56-5-2950(a)
rights in writing. See, e.g., Johnson v. Painter, 279
S.C. 390, 392, 307 S.E.2d 860, 861 (1983) (“The court does not always have to
accept uncontradicted evidence as establishing the truth; however, it should be
accepted unless there is reason for disbelief.”); see also Mackey
v. Montrym, 443 U.S. 1, 14 (1979) (“The officer whose report of refusal triggers
a driver’s suspension is a trained observer and investigator . . . And, as he
is personally subject to civil liability for an unlawful arrest and to criminal
penalties for willful misrepresentation of the facts, he has every incentive to
ascertain accurately and truthfully report the facts.”). Although deference certainly
must be given to the findings of the DMVH hearing officer, there is absolutely no
reason indicated in the record or cited by the hearing officer suggesting
Officer Hallman’s testimony on this matter to be untrustworthy. As noted
above, the DMVH hearing officer’s decision to rescind Respondent’s suspension
was based on her finding that Officer Hallman did not provide any testimony regarding this issue. Because Respondent concedes that Officer
Hallman did provide pertinent testimony on this issue, reversal of the
hearing officer’s Final Order and Decision is warranted.
Furthermore, even if Respondent was not advised
in writing of his Section 56-5-2950(a) rights, then reversal would still be warranted
under the Court of Appeals’ decision in Taylor, supra. In Taylor, supra., a motorist’s driver’s license was suspended
pursuant to Section 56-5-2951(A) based on the motorist’s refusal to submit to a
blood test after being arrested for driving under the influence. Although the
arresting officer read aloud to the motorist a form which set forth the
motorist’s Section 56-5-2950(a) rights, the officer did not provide the
motorist with a written copy of the form. The Court relying heavily on State
v. Huntley, 349 S.C. 1, 5, 562 S.E.2d 472, 474 (2002) concluded that the motorist was not prejudiced by the fact that the arresting
officer did not provide a written copy of the Section 56-5-2950(a) advisement
to the motorist. Id. Importantly, the Taylor court interpreted
the Huntley decision as follows:
[In Huntley], the
supreme court reversed the suppression of the breathalyzer test results because
the defendant was not prejudiced by the statutory violation committed by the
breathalyzer operator. Consequently, the Huntley decision dictates that
a violation of section 56-5-2950 without resulting prejudice will not lead to a
suppression of the evidence obtained pursuant to this section.
Taylor, 368 S.C. at 38, 627 S.E.2d at 754.
Here, as in Taylor, the Record clearly
demonstrates, and the DMVH hearing officer found, that Respondent was orally advised
of his Section 56-5-2950(a) rights. On both direct and cross-examination,
Officer Hallman testified that he read Respondent his implied consent rights. Thus,
pursuant to Taylor, any failure by Officer Hallman to advise Respondent
in writing of his Section 56-5-2950(a) rights is actually irrelevant, since
Respondent has not argued that he was prejudiced by such failure. Therefore, even
if Respondent was not advised in writing of his Section 56-5-2950(a) rights,
the Taylor decision still mandates reversal of the hearing officer’s Final
Order and Decision.
Lawfulness of the Arrest
Respondent argues that the DMVH’s Final Decision
and Order should be affirmed even if the hearing officer erred on other grounds
because the Department failed to establish the lawfulness of Respondent’s
arrest for driving under the influence. Specifically, Respondent argues that
the importance of the videotape of the incident site is “clearly demonstrated”
by the Record and that, because Officer Hallman failed to produce a copy of the
videotape of the arrest, the lawfulness of the arrest was not established.
Indeed, an appellate court is not, as a general rule, bound by the reasoning
adopted below if the Record discloses a correct result. State v. Goodstein,
278 S.C. 125, 128, 292 S.E.2d 791, 793 (1982). “No principle in the disposition
of appeals is more firmly established than that a right decision upon a wrong
ground will be affirmed.” Moorhead v. First Piedmont Bank &
Trust Co. 273 S.C. 356, 360, 256 S.E.2d 414, 416 (1979) (quoting Foster
v. Taylor, 210 S.C. 324, 329, 42 S.E.2d 531, 534 (1947). Therefore, the
fact that the DMVH hearing officer may have given the wrong ground for her
decision does not preclude affirmance upon a proper ground sustained by the
Record. Goodstein, 278 S.C. at 128, 292 S.E.2d at 793 (1982).
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.”).
Because this case involved a traffic stop, it is
necessary for me to discuss both the propriety of the traffic stop as well as the
propriety of the actual arrest for driving under the influence. See State v. Nelson, 336 S.C. 186, 191-92, 519 S.E.2d 786, 788
(1999). I will also discuss whether Officer Hallman’s failure to produce the
incident site videotape warrants affirmance of the DMVH’s Final Order and
Decision.
A. Propriety of Traffic Stop
The Fourth Amendment guarantees “[t]he right of
the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.” U.S. Const. amend IV; State v.
Pichardo, 367 S.C. 84, 97, 623 S.E.2d 840, 847 (Ct. App. 2005). Temporary
detention of individuals during the stop of an automobile by the police, even
if only for a brief period and for a limited purpose, constitutes a seizure of
persons within the meaning of the Fourth Amendment. Pichardo, 367 S.C.
at 97, 623 S.E.2d at 847; State v. Maybank, 352 S.C. 310, 315, 573
S.E.2d 851, 854 (Ct. App. 2002). Thus, an automobile stop is “subject to the
constitutional imperative that it not be ‘unreasonable’ under the
circumstances.” Pichardo, 367 S.C. at 97, 623 S.E.2d at 847 (quoting Whren v. United States, 517 U.S. 806, 810 (1996). Where probable cause
exists to believe that a traffic violation has occurred, the decision to stop
the automobile is reasonable per se. Pichardo, 367 S.C. at 97, 623
S.E.2d at 847; State v. Williams, 351 S.C. 591, 598, 571 S.E.2d 703, 707
(Ct. App. 2002). The police may also stop and briefly detain a vehicle if they
have a reasonable suspicion that the occupants are involved in criminal
activity. Pichardo, 367 S.C. at 97-98, 623 S.E.2d at 847; State v. Butler, 343 S.C. 198, 201, 539 S.E.2d 414, 416 (Ct. App. 2000).
Here, on direct, Officer Hallman testified that
he stopped Respondent because Respondent had been speeding and had “almost hit
a truck in the rear end.” On cross-examination, the following exchanges further
occurred:
Respondent’s Attorney: [W]hat speed was [Respondent] going?
Officer Hallman: I don’t remember. I’ve been trying to view
videotape to see . . . with the new system, I’m still trying to get used to it
. . .
* * *
Respondent’s Attorney: So you can’t remember the speed?
Officer Hallman: No, sir, not off the top of my head . . . But again
also as I testified, he almost hit another vehicle in the rear when he was
approaching.
Respondent’s Attorney: How did that take place; what did you observe?
Officer Hallman: He was traveling at a high rate of speed . . . And
at the last second, what really drew my attention was not so much the speed, .
. . everybody speeds, but it was the fact that all of the sudden, there was a
lane change to avoid a collision in that area, you know, a serious collision,
so that’s what really peaked my decision to catch up with Mr. Upton and pull
him over.
* * *
Respondent’s Attorney: [D]id you in fact videotape the stop?
Officer Hallman: Yes, sir, had it videotaped.
Respondent’s Attorney: Where is that video?
Officer Hallman: It is in . . . it’s stored on our server. I’ve
been attempting to get it transferred over to you in response to your Rule 5,
but it’s a complicated system of computer work I’m trying to get used to.
* * *
Respondent’s Attorney: Did you tell Mr. Upton when you stopped him that
the reason for the stop was that he was swerving in his lane?
Officer Hallman: And he was speeding, yes, sir.
* * *
Respondent’s Attorney: Now, what is illegal about swerving in your lane?
Officer Hallman: He swerved in his lane to miss a truck . . .
* * *
Respondent’s Attorney: So, when you testified the reason why you stopped
him was that he was swerving in his lane; was that accurate, that he swerved
within his lane or did he make a lane change?
Officer Hallman: He swerved making an improper lane change.
Respondent’s Attorney: What was improper about his lane change?
Officer Hallman: No signal, abruptly changing. You have to properly
give your intentions to change lanes. You’re required to signal you
intentions. There was no signal.
Respondent’s Attorney: Why did you not testify that the defendant didn’t
give a signal when making a lane change on direct just a second ago?
Officer Hallman: All I said was that he swerved to miss a truck. I
just didn’t mention the turn signal because I was trying to get in a hurry. I
haven’t been to one of these in a couple of years, I get nervous, so. That’s
another reason why the videotape would be great to have.
Thus, Officer Hallman testified that the reason
why he stopped Respondent was because he had observed Respondent: (i) commit a
traffic violation by speeding; and (ii) abruptly swerve to avoid hitting a
truck in the rear. Officer Hallman also testified that, in connection with
Respondent’s attempt to avoid hitting the truck, Respondent made a lane change
without employing his turn signal.
As the Mackey decision indicates, law
enforcement officers have a clear incentive to accurately and truthfully report
the facts. Moreover, Respondent did not present any evidence that contradicted
Officer Hallman’s testimony in this regard; instead, his attorney merely
speculated that the videotape of the incident site might have disproved
Officer Hallman’s testimony. Finally, as discussed below, Respondent now
concedes that he failed the field sobriety tests that Officer Hallman
administered to him. This concession certainly adds credence to Officer Hallman’s
testimony regarding Respondent’s driving prior to the arrest. For these
reasons, I find that the only reasonable inference to be drawn from the
evidence is that the traffic stop was proper. See, e.g., Kelly
v. S.C. Dep’t of Highways, 323 S.C. 334, 337, 474 S.E.2d 443, 445 (Ct. App.
1996) (“The arresting officer testified he observed Kelly’s vehicle swerve
abruptly to the right and nearly hit the median, thus prompting a reasonable
suspicion on the officer’s part that Kelly was intoxicated to justify a stop
and brief detention.”); State v. Woodruff, 344 S.C. 537, 552, 544 S.E.2d
290, 298 (Ct. App. 2001) (officer’s observation of defendant speeding justified
traffic stop); State v. Smith, 329 S.C. 550, 557, 495 S.E.2d 798, 801 (Ct.
App. 1998) (same); City of Orangeburg v. Carter, 303 S.C. 290, 291, 400
S.E.2d 140, 141 (1991) (officer’s observation of an improper left turn by
defendant established probable cause for a traffic stop).
B. 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 DMVH hearing officer found, and Respondent
concedes in his brief, that: (i) he had an odor of alcohol about his person at
the time Officer Hallman stopped him; and (ii) he failed the field sobriety
tests that he was asked to perform.
Moreover, Officer Hallman testified that Respondent had committed a traffic
violation by speeding and had almost hit another vehicle in the rear. Based on
the foregoing, I find that the only reasonable inference to be drawn from the
evidence is that Officer Hallman had probable cause to arrest Respondent for
driving under the influence. Cf. Kelly, 323 S.C. at 337-38, 474
S.E.2d at 445 (finding probable cause to arrest for driving under the influence
where officer observed motorist’s car swerve abruptly to the right, motorist
smelled of alcohol, motorist admitted to having drunk a few beers, and motorist
performed poorly on field sobriety tests); Goodstein, 278 S.C. at 127,
292 S.E.2d at 792 (finding probable cause to arrest for driving under the
influence where officer observed motorist’s car travel above the speed limit
and swerve twice, motorist smelled strongly of alcohol, motorist staggered when
he walked, motorist’s speech was slurred, and motorist was hostile to officer).
C. Officer Hallman’s Failure to
Produce Incident Site Videotape
Respondent, however, contends that, because
Officer Hallman failed to produce a copy of the videotape of the incident site,
which he was required to make pursuant to S.C. Code Ann. § 56-5-2953(A) (2006),
probable cause was not established.
Pursuant to Section 56-5-2953(A), a person who
violates Sections 56-5-2930 (operating a motor vehicle while under the
influence of alcohol or drugs), 56-5-2933 (driving with an unlawful alcohol
concentration), and 56-5-2945 (causing great bodily injury or death by
operating a vehicle while under the influence of drugs or alcohol) must have
his conduct at the incident site and the breath test site videotaped.
According to Section 56-5-2953(A)(1)(a), the videotaping of the incident site
must begin no later than the activation of the officer’s blue lights and
conclude after the arrest of the person for a violation of Section 56-5-2930 or
Section 56-5-2933, or a probable cause determination that the person violated
Section 56-5-2945. Importantly, Section 56-5-2953(B) sets forth the
consequences for law enforcement’s failure to produce the videotape. It states
in pertinent part:
Nothing in this section may be
construed as prohibiting the introduction of other evidence in the trial of a
violation of Section 56-5-2930, 56-5-2933, or 56-5-2945. 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 the arresting officer submits a sworn
affidavit certifying that the videotape equipment at the time of the arrest,
probable cause determination, or breath test device was in an inoperable
condition, stating reasonable efforts have been made to maintain the equipment
in an operable condition, and certifying that there was no other operable
breath test facility available in the county or, in the alternative, submits a
sworn affidavit certifying that it was physically impossible to produce the
videotape because the person needed emergency medical treatment, or exigent
circumstances existed . . .
S.C. Code Ann. § 56-5-2953(B) (2006) (emphasis added).
A careful review of Section 56-5-2953 reveals
that nothing in Section 56-5-2953 requires a law enforcement officer to produce
a copy of the incident site videotape at a Section 56-5-2951(B)(2) implied
consent hearing. Notably, neither Section 56-5-2950 (the implied consent
statute) nor Section 56-5-2951 is ever mentioned in Section 56-5-2953. In
fact, the Court of Appeals has specifically held that the issue of law
enforcement’s compliance with Section 56-5-2953 is outside the scope of a Section
56-5-2951(B)(2) implied consent hearing. See S.C. Dep’t of Motor
Vehicles v. Nelson, 364 S.C. 514, 613 S.E.2d 544 (Ct. App. 2005).
In Nelson, a motorist’s driver’s license
was suspended under Section 56-5-2951 for refusing to submit to chemical testing
after being arrested for driving under the influence. On appeal, the circuit
court reversed the administrative hearing officer, concluding that the breath
test was not offered within three hours of the arrest as required by Section
56-3-2953. The Court of Appeals in reversing the circuit court’s decision
explained:
The Department concedes it did
not comply with the requirements of section 56-5-2953 . . . However, nothing in
the code instructs that a failure to comply with section 56-5-2953 warrants the
dismissal of prosecution for failure to submit to testing pursuant to section
56-5-2950.
Nelson, 364 S.C. at 524, 613 S.E.2d at 549.
The Court of Appeals then went to hold that the scope of the hearing was
limited to whether the motorist: (1) was lawfully arrested, (2) was advised in
writing of his section 56-5-2950 rights, and (3) refused to submit to a test. Nelson,
364 S.C. at 526, 613 S.E.2d at 550. In making this ruling, the Court of
Appeals quoted the following passage from Summersell v. Dep’t of Pub. Safety,
334 S.C. 357, 368-369, 513 S.E.2d 619, 625 (Ct. App. 1999), vacated in part
on other grounds, 337 S.C. 19, 522 S.E.2d 144 (1999):
[T]he question before the
hearing officer was not whether the state had proved its case, but whether the
arresting officer had probable cause to believe [the driver] had committed the
offense of driving under the influence. This is not a trial in regard
to the guilt or innocence of the defendant on a DUI charge. Rather, the
gravamen of the administrative hearing is a determination of the efficacy and
applicability of the implied consent law. The query posited to the
administrative hearing officer is: did the person violate the implied consent
law.
Id. at 525, 613 S.E.2d at 550 (emphasis in original).
Based on Nelson and Summersell, the
DMVH’s decision should not be affirmed on the grounds that Officer Hallman
failed to offer into evidence a copy of the videotape of Respondent’s conduct
at the incident site. The scope of the hearing simply did not include the issue
of whether or not Officer Hallman complied with Section 56-5-2953. Moreover,
Officer Hallman’s 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). Finally, as noted above, Respondent
conceded that he failed the field sobriety tests. Clearly, this concession
substantially diminishes the importance of the videotape.
Furthermore, the fact that, at the time of the
administrative hearing, Officer Hallman had not yet complied with Respondent’s request
pursuant to Rule 5, SCRCrimP, for a copy of the incident site videotape does
not mandate affirmance of the DMVH’s hearing officer’s Final Decision and Order.
Rule 5(a)(1)(C), SCRCrimP, provides that:
Upon request of the defendant
the prosecution shall permit the defendant to inspect and copy books, papers,
documents, photographs, tangible objects, buildings or places, or copies or
portions thereof, which are within the possession, custody or control of the
prosecution, and which are material to the preparation of his defense or are
intended for use by the prosecution as evidence in chief at the trial, or were
obtained from or belong to the defendant.
Importantly, Rule 5, SCRCrimP, is a rule of criminal
procedure that is applicable to criminal, not administrative, proceedings. The
procedural rule that was applicable to the present case was ALC Rule 22, which allows
for the issuance of subpoenas for the attendance and testimony of witnesses and
the production and examination of records, books, and papers. See S.C.
Code Ann § 1-23-660 (Supp. 2005) (“Notwithstanding another provision of law,
the hearing officers shall conduct hearings in accordance with . . . the rules
of procedure for the Administrative Law Court.”). Here, Respondent did not
subpoena the videotape pursuant to ALC Rule 22. Therefore, Officer Hallman’s
failure to produce the videotape at the DMVH hearing does not merit affirmance
of the DMVH’s Final Order and Decision.
Moreover, even if Rule 5, SCRCrimP, was applicable
to the administrative hearing, it does not appear that, at the time of the
administrative hearing, Officer Hallman had violated Rule 5. Notably, under Rule
5(a)(3), SCRCrimP, the prosecution has thirty (30) days to respond to a Rule 5 request,
unless a different timeframe is ordered by the criminal court. Here,
Respondent’s attorney stated at the hearing that the Rule 5 request was made on
April 26, 2006. No evidence was presented at the hearing to show that the
criminal court had shortened the thirty-day time limit for responding to
Respondent’s request. Thus, it appears that Officer Hallman was not required
to provide Respondent with a copy of the videotape until May 26, 2006, four
days after the administrative hearing.
For these reasons, the
DMVH’s Final Order and Decision will not be affirmed on the grounds that Officer
Hallman lacked probable cause to arrest Respondent for driving under the
influence.
ORDER
IT IS HEREBY ORDERED that the DMVH’s Final Order and Decision is REVERSED.
AND IT IS SO ORDERED.
______________________________
Ralph
K. Anderson
Administrative
Law Judge
November 6, 2006
Columbia, South Carolina
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