SCDMV v. Maxson

THIS OPINION
HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN
ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

South Carolina
Department of Motor Vehicles, Respondent,

v.

Andrew Charles
Maxson, Appellant.

Appeal from the Administrative Law Court

Carolyn C. Matthews, Administrative Law
Court Judge

Unpublished Opinion No. 2011-UP-258

Submitted May 1, 2011 – Filed June 1, 2011   

AFFIRMED

Reynolds H. Blankenship, Jr., Robert M.P.
Masella, and Sarah Prentiss Counts, of Columbia, for Appellant.

General Counsel Frank L. Valenta, Jr.,
Deputy General Counsel Philip S. Porter, Assistant General Counsel Linda
Annette Grace, of Blythewood, for Respondent.

PER CURIAM: Andrew Charles Maxson appeals the order of the
Administrative Law Court (ALC) reversing the hearing officer's decision to
rescind Maxson's driver's license suspension. On appeal, Maxson argues the ALC
erred in reversing the hearing officer because the arresting officer did not
meet his burden of proof by failing to present evidence at the license
suspension hearing that Maxson was lawfully arrested or detained. We affirm[1] pursuant to Rule 220(b), SCACR, and the following authorities: S.C. Code Ann.
1-23-380(5) (Supp. 2010) (stating the ALC may reverse the decision of the
hearing officer if the hearing officer's findings were "clearly erroneous
in view of the reliable, probative, and substantial evidence on the whole
record"); S.C. Dep't of Motor Vehicles v. McCarson, 391 S.C.
136, 149, 705 S.E.2d 425, 431 (2011) (holding the Department has the
burden of proving probable cause in a license suspension hearing); Lapp v. S.C.
Dep't of Motor Vehicles, 387 S.C. 500, 506, 692 S.E.2d 565, 568 (Ct. App.
2010) (finding "an implied consent hearing is not a trial in regard
to the guilt or innocence of the defendant on a DUI charge," and, thus,
"[a] finding of probable cause may be based upon less evidence than would
be necessary to support a conviction.").[2] 

AFFIRMED.

FEW, C.J.,
PIEPER, and LOCKEMY, JJ., concur.

[1] We decide this case without oral argument pursuant to
Rule 215, SCACR.

[2] Maxson also argued on appeal that the ALC did not
have the authority to change a "finding of fact" by the hearing
officer; however, the ALC did not reverse a finding of fact.  The hearing
officer ruled as "a matter of law" under his "conclusions of law"
that the Department had not met its burden of proof.  The hearing officer
explained under this legal ruling that, "[t]he smell of alcohol about
[Maxson's] breath and the failing of the field sobriety tests are evidence of
impairment; however, those factors alone do [not] establish probable cause that
[Maxson] was materially and appreciably impaired at the time of the stop."
 Furthermore, "[a]lthough the question of whether probable cause exists is
ordinarily a jury question, it may be decided as a matter of law when the
evidence yields but one conclusion." Law v. S.C. Dep't of Corr., 368
S.C. 424, 436, 629 S.E.2d 642, 649 (2006).  Here the determination of
probable cause, as stated in the hearing officer's order, was decided as a
matter of law.