South Carolina Dep't of Motor Vehicles v. Mccarson

• Decision Date: 02 March 2011
• Docket Number: No. 26916.,26916.
• Citation: 391 S.C. 136,705 S.E.2d 425
• Court: South Carolina Supreme Court
• Parties: SOUTH CAROLINA DEPARTMENT OF MOTOR VEHICLES, Respondent,v.Larry McCARSON, Appellant.

391 S.C. 136

705 S.E.2d 425

SOUTH CAROLINA DEPARTMENT OF MOTOR VEHICLES, Respondent,

v.Larry McCARSON, Appellant.

No. 26916.

Supreme Court of South Carolina.

Heard Oct. 7, 2010.Decided Jan. 24, 2011.Rehearing Denied March 2, 2011.

Carson McCurry Henderson, of Greenwood, Heath Preston Taylor, of West Columbia, for Appellant.Deputy General Counsel Philip S. Porter, General Counsel Frank L. Valenta, Jr., Assistant General Counsel Linda A. Grice, of Blythewood, for Respondent.Justice BEATTY.

Larry McCarson appeals the order of the Administrative Law Court (ALC) that resulted in the suspension of his driver's license following an arrest for driving under the influence (DUI).¹ In his appeal, McCarson claims the ALC erred in reversing the decision of the Hearing Officer for the Division of Motor Vehicles Hearings (DMVH) that rescinded the initial license suspension. Specifically, McCarson contends his license should not have been suspended as there was no admissible evidence to establish probable cause for his DUI arrest. We agree and reverse the decision of the ALC.

I. Factual/Procedural History

At approximately 2:00 a.m. on January 1, 2006, First Sergeant Kimbrell was on routine patrol near the junction of US 221 and I–385 in Laurens County. While on patrol, Kimbrell observed McCarson drive his vehicle over a curb, fail to yield the right of way, make an improper turn, and make a wide turn on an entrance ramp of I–385 near a divider wall. Because his patrol vehicle was not equipped with a video camera, Kimbrell requested assistance after pulling McCarson over for the driving violations.

Shortly thereafter, Trooper Michael Jones arrived at the location where McCarson was being detained by his supervisor, Sergeant Kimbrell. Upon his arrival, Kimbrell advised Jones of the reason for the traffic stop. Jones then requested that McCarson step to the rear of the vehicle. After reading McCarson his Miranda ² rights, Jones ordered McCarson to perform several field sobriety tests. According to Jones, McCarson performed “poorly” on the Horizontal Gaze Nystagmus (HGN) test and the “one-leg stand” test. As a result, Jones arrested McCarson for DUI and transported him to the Laurens County Law Enforcement Center.

After being read the Advisement of Implied Consent rights ³ and his Miranda rights, McCarson agreed to submit to a DataMaster breathalyzer test. The test results revealed that McCarson had a blood alcohol level of 0.17 percent. Because McCarson's blood alcohol level was greater than 0.15 percent, Jones issued McCarson a Notice of Suspension pursuant to section 56–5–2951(A) of the South Carolina Code.⁴

Within the statutorily-prescribed time period,⁵ McCarson filed a request for an administrative hearing before the DMVH to challenge the license suspension.

On March 1, 2006, Hearing Officer Tracy Holland held a hearing on McCarson's license suspension.⁶ Trooper Jones, but not Sergeant Kimbrell, appeared on behalf of the Department of Motor Vehicles (the “Department”). At the hearing, Jones offered an Incident Report to supplement his own testimony. The Incident Report detailed Kimbrell's observations of McCarson's erratic driving prior to Jones's arrival at the scene. Jones also sought to introduce the following documents: his DataMaster certification, the implied consent advisement form, the notice of suspension, and the traffic ticket.

McCarson's counsel objected to the admission of the Incident Report on the ground it constituted inadmissible hearsay. In conjunction, counsel sought to exclude the other documents on the basis that “there is no foundation and in trying to lay the foundation, there's hearsay, without the other officer here.” Holland agreed and, as a result, excluded the proffered evidence. In turn, Holland ruled:

I find that the testimony of Trooper Jones failed to prove that [McCarson] was lawfully arrested for driving under the influence. Trooper Jones failed to present any testimony or other evidence which led him to believe that [McCarson] was operating a motor vehicle while under the influence of alcohol or drugs ... There was no testimony about the reason for the stop, no testimony about attributes or behavior which typically lead an officer to believe someone is under the influence, and no testimony about [McCarson's] performance on the field sobriety tests. The only testimony given was that the field sobriety tests indicated he was under the influence.

Ultimately, Holland concluded that the Department failed to meet its burden of proof. Consequently, by order dated March 30, 2007, Holland rescinded McCarson's license suspension and ordered the Department to restore McCarson's driving privileges.

The Department appealed Holland's order to the ALC. In challenging the order, the Department primarily asserted Holland erred in excluding the documentary evidence that served as the basis for establishing probable cause for McCarson's arrest.

Based on the parties' briefs, the Honorable John McLeod considered the central question of whether Sergeant Kimbrell's statements should have been admitted pursuant to an exception to the rule against hearsay. Finding no enumerated hearsay exception,⁷ Judge McLeod relied on the decision of the Court of Appeals in Summersell v. South Carolina Department of Public Safety, 334 S.C. 357, 513 S.E.2d 619 (Ct.App.1999), vacated in part by 337 S.C. 19, 522 S.E.2d 144 (1999).

In Summersell, an officer responded to the call of a citizen who had witnessed Summersell drive an automobile into a ditch. When the officer arrived at the scene, she observed Summersell “passed out” in the driver's seat of the automobile with the keys in the ignition. The citizen assisted Summersell in exiting the vehicle because Summersell could not do so on his own. Id. at 361, 513 S.E.2d at 621. According to the officer, Summersell smelled strongly of alcohol, was unsteady on his feet, and had extremely red eyes. Id. at 362, 513 S.E.2d at 622. Although the officer did not witness Summersell driving the automobile, her investigation of the scene revealed the tire tracks near the automobile were “fresh” and the incident occurred “sometime that evening.” Id.

As a result, the officer arrested Summersell for DUI. After refusing to submit to a breathalyzer test, the Department suspended Summersell's driving privileges. The circuit court upheld the Hearing Officer's decision to sustain the suspension of Summersell's driver's license. Id. at 362, 513 S.E.2d at 622.

On appeal to the Court of Appeals, Summersell raised several issues including whether the Hearing Officer erred in allowing the Department to elicit hearsay testimony during the administrative hearing. Because the citizen-witness did not testify at the hearing, Summersell claimed the officer could not testify as to the citizen's observations of Summersell driving the automobile into the ditch. Id. at 364, 513 S.E.2d at 623. Summersell's hearsay objection was overruled by the Hearing Officer. Id.

The Court of Appeals affirmed the decision of the circuit court, finding the officer's hearsay testimony was admissible as it was related to probable cause for the arrest of Summersell. Id. at 366, 513 S.E.2d at 624. The court stated:

Although it is generally correct to state the purpose of a preliminary hearing is to “apprise the defendant of the nature of the State's evidence,” its purpose is more specifically “... to establish that probable cause exists to continue the criminal process. The State has the burden of proving probable cause, but is not required to call all of its potential witnesses.” To this end, we have previously held that hearsay testimony as to the nature of the State's evidence is permissible.

Id. at 365, 513 S.E.2d at 624 (quoting State v. Dingle, 279 S.C. 278, 283–84, 306 S.E.2d 223, 226 (1983)).

Relying on Summersell, Judge McLeod concluded that “South Carolina courts have promulgated a common law exception to hearsay, to wit, that hearsay testimony is admissible to establish probable cause to arrest.” Thus, Judge McLeod concluded that the Incident Report as well as the other proffered evidence should have been admitted to establish probable cause for McCarson's arrest. Accordingly, Judge McLeod reversed Hearing Officer Holland's order and remanded for a new hearing on the merits as the record on appeal was “woefully inadequate.”

On remand, Hearing Officer Holland conducted a hearing on March 12, 2008. Trooper Jones appeared on behalf of the Department. At the onset of Jones's testimony, McCarson's counsel posited his hearsay objection to Jones testifying as to Sergeant Kimbrell's observations of McCarson's erratic driving. In support of this objection, counsel challenged Judge McLeod's reliance on Summersell given the subsequent history.⁸ Because Kimbrell's observations, which were conveyed to Jones and included in the Incident Report, constituted inadmissible hearsay, counsel claimed this evidence and the resultant documentary evidence should be suppressed.

By order dated April 7, 2008, Hearing Officer Holland specifically rejected Judge McLeod's ruling and declined to consider the Department's hearsay testimony regarding probable cause for McCarson's arrest. In rejecting Judge McLeod's reasoning, Holland not only discounted the ruling in Summersell but declared it as without precedential value. Without the proffered evidence, Holland found that Trooper Jones failed to prove McCarson was lawfully arrested for DUI. Specifically, Holland found there was no evidence of probable cause for the initial stop as Jones failed to present testimony that McCarson was operating a motor vehicle while under the influence of alcohol. Consequently, Holland ordered the Department to restore Respondent's driver's license.

Subsequently, the Department appealed the order to the ALC. By order dated June 29, 2009, the Honorable Carolyn Matthews reversed the Hearing Officer's order and reinstated McCarson's license...