Summersell v. SC DEPT. OF PUBLIC SAFETY

• Decision Date: 01 February 1999
• Docket Number: No. 2934.,2934.
• Citation: 513 S.E.2d 619,334 S.C. 357
• Court: South Carolina Court of Appeals
• Parties: John Patrick SUMMERSELL, Appellant, v. SOUTH CAROLINA DEPARTMENT OF PUBLIC SAFETY, Respondent.

334 S.C. 357

513 S.E.2d 619

John Patrick SUMMERSELL, Appellant, v. SOUTH CAROLINA DEPARTMENT OF PUBLIC SAFETY, Respondent.

No. 2934.

Court of Appeals of South Carolina.

Heard January 14, 1999.

Decided February 1, 1999.

Rehearing Denied March 27, 1999.

L. Scott Harvin, of Hetrick Law Firm, of Walterboro, for Appellant.

Senior Assistant General Counsel Patrick M. Teague and General Counsel Frank L. Valenta, Jr., both of South Carolina Department of Public Safety, of Columbia, for Respondent. ANDERSON, Judge:

John Patrick Summersell was arrested for driving under the influence. He refused to submit to a breathalyzer test. As a result, the South Carolina Department of Public Safety (the Department) suspended Summersell's driving privileges. Upon Summersell's request, the Department held an administrative hearing for the purpose of determining whether the Department properly suspended Summersell's license because he refused to submit to a breathalyzer test. The hearing officer recommended the Department's decision to suspend Summersell's driver's license be sustained. The circuit court affirmed. Summersell appeals. We affirm.

FACTS/PROCEDURAL BACKGROUND

On December 13, 1996, at approximately 2:23 a.m., Officer Sheri Avenel responded to a call from Angler's Mini-Mart reporting a disabled vehicle. Upon arrival at the store, Avenel spoke with Fort,¹ who explained Summersell had driven an automobile off of Long Point Road into a ditch.

Avenel accompanied Fort to the scene, where she observed Summersell "passed out" in the driver's seat of the automobile with the keys in the ignition. Avenel knocked on the window in an effort to get Summersell's attention. Fort opened the driver's side door and assisted Summersell in getting out of the automobile after Summersell was unable to do so on his own.

Once outside of the vehicle, Summersell was unsteady on his feet and fell onto the vehicle several times while "trying to catch his balance." Summersell stumbled and almost fell as Avenel helped him to the rear of the automobile. Summersell failed to respond when Avenel asked for his driver's license and for a recount of the incident. Summersell did not answer when Avenel questioned whether he had been drinking. According to Avenel, Summersell smelled strongly of alcohol. She observed Summersell's eyes were extremely red, he could not "keep his balance," and he was unable to focus during questioning. When Avenel arrested Summersell for driving under the influence, Summersell "said something to the effect that there was nothing wrong with sitting in a car and having something to drink."

Officer Avenel did not witness Summersell driving the automobile. However, Avenel stated the roads were wet. She could see the tire tracks where the automobile left Long Point Road, and the tracks made when Summersell was backing and turning the automobile in an effort to escape the ditch. Avenel testified her investigation of the scene revealed the tire tracks were "fresh," and the incident occurred "sometime that evening."

At the police station, Officer Robert C. Catlett read an implied consent warning to Summersell, who responded he understood the warning. Catlett testified Summersell appeared to be alert. Summersell refused to submit to the breathalyzer test when it was offered to him. Catlett filled out a report indicating Summersell's refusal to consent to the breathalyzer test.

Thereafter, the Department suspended Summersell's driving privileges based upon Summersell's refusal to submit to the breathalyzer test. Summersell requested an administrative hearing pursuant to S.C.Code Ann. § 56-5-2950(e) (1991)². The Department informed Summersell in writing the sole issues to be resolved by the hearing were limited by statute as follows: 1) was he placed under arrest, 2) was he informed he did not have to take the test, but that upon refusal his driving privileges would be suspended, and 3) did he refuse to take the test upon request by the officer. The hearing officer ruled (1) Summersell was placed under arrest for driving under the influence; (2) Summersell was advised of his right not to take the test and his driving privileges would be suspended upon refusal to take the test; (3) Summersell refused to submit to the breathalyzer test when it was offered to him; and (4) the Department's decision to suspend Summersell's driver's license should be sustained.

Summersell appealed to the circuit court. The circuit judge found there was substantial evidence in the record to support the hearing officer's decision and denied the appeal. This appeal followed.

STANDARD OF REVIEW

The South Carolina Administrative Procedures Act, S.C.Code Ann. § 1-23-310, et seq. (Rev.1986 & Supp.1998), establishes the "substantial evidence" rule as the standard for judicial review of a decision of an administrative agency. Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981). South Carolina Code Ann. § 1-23-380(A)(6) (Supp.1998) provides:

The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. 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.

The findings of an administrative agency are presumed correct and will be set aside only if unsupported by substantial evidence. Kearse v. State Health & Human Servs. Fin. Comm'n, 318 S.C. 198, 456 S.E.2d 892 (1995). A court may not substitute its judgment for that of an agency as to the weight of the evidence on questions of fact unless the agency's findings are clearly erroneous in view of the reliable, probative and substantial evidence on the whole record. Rodney v. Michelin Tire Corp., 320 S.C. 515, 466 S.E.2d 357 (1996). Substantial evidence is not a mere scintilla of evidence, nor the evidence viewed blindly from one side of the case, but is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion the administrative agency reached in order to justify its action. Miller v. State Roofing Co., 312 S.C. 452, 441 S.E.2d 323 (1994); Stokes v. First Nat'l Bank, 306 S.C. 46, 410 S.E.2d 248 (1991). See also Palmetto Alliance, Inc. v. South Carolina Public Serv. Comm'n, 282 S.C. 430, 319 S.E.2d 695 (1984) (substantial evidence is something less than weight of evidence and possibility of drawing two inconsistent conclusions from evidence does not prevent administrative agency's finding from being supported by substantial evidence). In reviewing a final decision of an administrative agency, the circuit court essentially sits as an appellate court to review alleged errors committed by the agency. Kiawah Resort Assocs. v. South Carolina Tax Comm'n, 318 S.C. 502, 458 S.E.2d 542 (1995). See also Byerly Hosp. v. South Carolina State Health and Human Servs. Finance Comm'n, 319 S.C. 225, 460 S.E.2d 383 (1995)

(in appeal from administrative agency, APA requires Supreme Court to affirm if decision of agency is supported by substantial evidence and Court may not substitute its judgment for that of agency upon questions as to which there is room for difference of intelligent opinion).

LAW/ANALYSIS

I. Probable Cause/Hearsay Evidence

Summersell argues the hearing officer erred in allowing the Department to elicit hearsay testimony during the administrative hearing. We disagree.

At the hearing, Officer Avenel testified Fort³ said Summersell drove the automobile into the ditch. Summersell objected on hearsay grounds. The objection was overruled by the hearing officer.

The first prong at issue under the statute is whether Summersell was placed under arrest. The determination of whether a person was "lawfully arrested" for driving under the influence is one of the pertinent issues to be decided in an administrative appeal from the Department's suspension of a person's driving privileges. S.C.Code Ann. § 56-5-2950(e) (1991). See also 1970 S.C. Att'y Gen. Op. No. 2897 (question of lawful arrest is appropriate issue in hearing pursuant to refusal to submit to breathalyzer test). The fundamental question in determining the lawfulness of an arrest is whether probable cause existed to make the arrest. Wortman v. City of Spartanburg, 310 S.C. 1, 425 S.E.2d 18 (1992).

"Probable cause is defined as a good faith belief that a person is guilty of a crime when this belief rests on such grounds as would induce an ordinarily prudent and cautious person, under the circumstances, to believe likewise." Wortman, 310 S.C. at 4, 425 S.E.2d at 20. "[P]robable cause for arrest in misdemeanor cases without a warrant is something more than a mere suspicion of the guilt of the accused and ... an arrest made on a hunch, or on a mere belief or guess unsupported by facts, circumstances or credible information pointing to the guilt of the person arrested cannot be justified as having been made on probable cause." Thompson v. Smith, 289 S.C. 334, 336-37, 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)

. Probable cause may be found somewhere between suspicion and sufficient evidence to convict. Id. 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.

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