DMV can’t use hearsay evidence to suspend licenses

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By PAUL THARP, Staff Writer

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The Department of Motor Vehicles cannot use hearsay evidence to suspend a driver’s licenses, the S.C. Supreme Court ruled Jan. 24 in an apparent first-impression decision.

West Columbia attorney Heath P. Taylor, who represented the defendant on appeal, said the justices “reaffirmed general hearsay rules we’ve always had.” But the Administrative Law Court had departed from those principles, Taylor said, by adopting a rule from a 1999 decision that had been vacated.

The high court’s ruling came in South Carolina Department of Motor Vehicles v. McCarson (Lawyers Weekly No. 010-014-11, 9 pp.). It involved a driver suspected of DUI who challenged his license suspension in a hearing before the ALC.

At the hearing, an arresting officer testified about his sergeant’s observations of Larry McCarson’s driving, which had served as probable cause for McCarson’s eventual detention and arrest.

Justice Donald W. Beatty, who wrote the opinion, observed that the sergeant’s “observations as conveyed through [the officer’s] testimony … constituted quintessential hearsay.” Justice Beatty wrote that since no “enumerated hearsay exceptions … would permit the admissibility of this evidence … the only potential avenue for admissibility is through our state’s jurisprudence regarding probable cause.”

While South Carolina courts have admitted hearsay evidence “to establish probable cause in the limited context of a preliminary hearing,” Beatty wrote, those cases were distinguishable from a license-suspension hearing because “a license-suspension hearing may potentially terminate an important interest of the licensee,” whereas “[a] preliminary hearing is not a final adjudication of a defendant’s rights.”

S.C. Code Ann. § 56-5-2951 lists several prerequisites that must be established before a hearing officer suspends a citizen’s driver’s license, including a determination of whether a driver “was lawfully arrested or detained.” By including this language in the statute, Beatty wrote, the legislature “placed the burden on the department to present sufficient evidence of probable cause.”

The court held that the DMV failed to present admissible evidence that McCarson was lawfully arrested or detained for DUI. Accordingly, it found that the ALC erred by reversing a hearing officer’s order reinstating McCarson’s driving privileges.

DMV Deputy General Counsel Philip S. Porter said the department had “hoped (the suspension) would be sustainable on a number of different grounds, such as a recognized exception to hearsay rule,” but the court made a strict reading of the rules of evidence.

Porter said the case may have been one of first impression for the Supreme Court “at least to the extent set out under these circumstances.”

He said the key distinction in the case was the difference in the treatment of hearsay evidence in the preliminary-hearing context, where, presumably, “a person would later have the ability to contest the hearsay,” and the license-suspension context, where, as Justice Beatty wrote, “an important interest of the licensee may be terminated and which constitutes a final adjudication of an important interest”.

Background

McCarson had been detained and arrested after a sergeant on routine patrol observed him “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 near a divider wall.”

The sergeant asked an officer under his command to report to the scene because the sergeant did not have a dashboard video camera. The second officer arrested McCarson for DUI. Since McCarson’s blood-alcohol level was greater than 0.15 percent, his driver’s license was suspended pursuant to S.C. Code Ann. § 56-5-2951(A).

McCarson requested a hearing to challenge his license suspension. At the hearing, the arresting officer, but not the sergeant who had observed McCarson’s driving, appeared on the DMV’s behalf.

The hearing officer found that the DMV “failed to prove that [McCarson] was lawfully arrested for driving under the influence … and ordered the DMV to restore his driving privileges.”

The DMV appealed to the ALC. Relying on Summersell v. South Carolina Department of Public Safety, 334 S.C. 357 (Ct. App. 1999), an ALC judge concluded that the evidence offered by the arresting officer “should have been admitted to establish probable cause for McCarson’s arrest.”

On remand, the hearing officer again ordered the DMV to restore McCarson’s license. The DMV appealed, and a different administrative law judge reversed the hearing officer and reinstated McCarson’s license suspension.

McCarson appealed to the Court of Appeals, but the Supreme Court, pursuant to Rule 204(b), SCAR, certified the appeal.

Analysis

The question the court addressed was whether the sergeant’s observations of McCarson’s erratic driving were admissible through the arresting officer’s testimony “in order to establish probable cause for McCarson’s DUI arrest as required by section 56-5-2951(F)(1).”

Justice Beatty pointed out that S.C. courts “have permitted hearsay evidence to establish probable cause in the limited context of a preliminary hearing,” but that those “cases are inapplicable to a driver’s license suspension hearing.”

Taylor said the McCarson ruling buttressed rules of evidence under which lawyers had been operating in the normal course. The ALC’s interpretation of Summersell, he said, “was particularly disturbing, because the ramification was that hearsay could be used for any purpose to establish probable cause in all criminal cases.”

Taylor noted that the Supreme Court had vacated the portion of Summersell upon which the ALC relied. “It was not good law.”

Justice Beatty observed that in order to prove a driver “was lawfully arrested or detained for DUI, the department must present admissible evidence of probable cause.”

Porter couldn’t speculate on how often cases arise in which more than one officer is involved in a traffic arrest but only one is available for a hearing.

Taylor said it was rare to see two officers involved in different aspects of the same case. “They understand the rules of evidence,” Taylor said. “It doesn’t happen often.”

But, Porter said, “In some cases officers are deceased or retired or have moved to another state. If they were the ones who observed the driver, we would have to consider whether to contest the driver’s appeal.”

Opinion Brief

Case name: South Carolina Department of Motor Vehicles v. McCarson

Court: S.C. Supreme Court

Judges: Justice Donald W. Beatty wrote the opinion; Chief Justice Jean Hoefer Toal, Justice Costa M. Pleicones, and Justice Kaye G. Hearn, concurring; Justice John W. Kittredge concurred in the result only without a separate opinion.

Date: Jan. 24, 2011

Plaintiff’s attorney: Deputy General Counsel Philip S. Porter, General Counsel Frank L. Valenta Jr. and Assistant General Counsel Linda A. Grice (all of Blythewood)

Defendants’ attorneys: Carson McCurry Henderson (Greenwood) and Heath Preston Taylor (West Columbia)

Issue: Can a defendant’s driver’s license in a DUI case be suspended on the basis of hearsay evidence?

Holding: No, even though the state can present hearsay evidence at a preliminary hearing in a criminal case, the state cannot rely on hearsay evidence to support the suspension of a DUI defendant’s driver’s license.