25004 - Summersell v. SCDPS
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Department of Public
ON WRIT OF CERTIORARI TO THE COURT OF
Appeal From Charleston County
A. Victor Rawl, Circuit Court Judge
Opinion No. 25004
Submitted October 5, 1999.- Filed October 11, 1999
L. Scott Harvin, of Hetrick Law Firm, of Walterboro,
General Counsel of the South Carolina Department.
of Public Safety Frank L. Valenta, Jr., and Senior
Assistant General Counsel of the South Carolina
Department of Public Safety Patrick M. Teague, both
of Columbia, for respondent.
PER CURIAM: This matter is before the Court on a petition for a writ of
certiorari seeking review the Court of Appeals' opinion in Summersell v.
South Carolina Department of Public Safety, 334 S.C. 357, 513 S.E.2d 619
(Ct. App. 1999), which affirmed the administrative hearing officer's and
circuit court's suspension of petitioner's driver's license for failure to submit
to a breathalyzer test. We grant certiorari, in part, to review that portion of
the Court of Appeals' decision addressing the admissibility of hearsay
testimony in an administrative proceeding, and dispense with further
briefing. In all other respects, the petition for a writ of certiorari is denied.
On December 13, 1996, petitioner was arrested for driving while
intoxicated (DUI) by Officer Sheri Avenel. He was transported to the Mt.
Pleasant police station where he refused to take a breathalyzer test.
Petitioner was informed that his driver's license would be suspended
pursuant to the informed consent statute if he did not take the test.
Petitioner again refused.
Officer Avenel submitted a "Report of Refusal to Submit to Breath
Alcohol Test" to the Department, which in turn suspended petitioner's
driver's license for ninety days pursuant to the informed consent statute.
Petitioner appealed, and a hearing was convened. At the hearing, Officer
Avenel testified that she responded to a telephone call regarding a disabled
car. She arrived at the Angler's Mini-Mart and spoke with Mr. Fort, a
passenger in the car, who told her that petitioner had driven the car off Long
Point Road into a ditch. When Officer Avenel arrived at the scene, petitioner
was passed out behind the wheel of the car. When Officer Avenel was able to
waken petitioner, he was unable to exit the car without assistance, he was
unable to walk without assistance, he was unresponsive to questioning, and
he smelled of alcohol.
Did the Court of Appeals err in addressing
whether Officer Avenel's hearsay testimony
was properly admitted under the Rules of
At the administrative hearing, counsel for petitioner objected to the
Officer Avenel's hearsay testimony regarding what Mr. Fort told her. The
hearing officer overruled the objection. In her order, the hearing officer
summarized the testimony and argument of counsel, noted that petitioner
had objected to Officer Avenel's hearsay testimony, and overruled the
On appeal to the circuit court, petitioner argued in his brief that the
hearing officer erred in allowing into evidence Officer Avenel's hearsay
testimony. In part, petitioner argued that the Rules of Evidence did not
permit hearsay testimony under the circumstances of this case. Petitioner
argued that the South Carolina Rules of Evidence, as applied in civil cases,
govern administrative hearings pursuant to S.C. Code Ann. § 1-23-330
(Supp. 1998). Specifically, petitioner argued that Rule 802, SCRE, does not
permit hearsay testimony unless there is an applicable exception. The
applicable exceptions, listed in Rule 1101(d)(3), SCRE, only allow the
introduction of hearsay testimony in proceedings for extradition; preliminary
hearings in criminal cases; sentencing and dispositional. hearings in juvenile
delinquency matters, or granting or revoking probation; issuance of warrants
for arrest, criminal summonses, and search warrants; and proceedings with
respect to release on bail or otherwise.
In its judgment, the circuit court affirmed the order of the hearing
officer. However, the trial court never specifically addressed petitioner's
argument regarding the admissibility of Officer Avenel's hearsay testimony
under the Rules of Evidence. Petitioner made no Rule 59, SCRCP, motion.
Despite petitioner's failure to obtain a specific ruling from the circuit
court on the admissibility of Officer Avenel's hearsay testimony under the
Rules of Evidence, the Court of Appeals addressed the issue but in a very
abbreviated fashion. The Court of Appeals held that hearsay evidence was
admissible during a criminal preliminary hearing to determine the issue of
probable cause to arrest. Because Avenel's testimony related to probable
cause to arrest for DUL the Court of Appeals concluded the hearsay
testimony was properly admitted into evidence. Summersell, supra.
We find that the issue of the admissibility of Officer Avenel's hearsay
testimony under the Rules of Evidence is not preserved for review. The
circuit court did not specifically address the issue, and where an issue
presented to the circuit court in a civil case is not explicitly ruled upon in the
final order, the issue must be raised by an appropriate post-trial motion to be
preserved for appellate review. Summer v. Carpenter, 328 S.C. 36, 492
S.E.2d 55 (1997). If the issue is not raisedin a post-trial motion, it is error
for the appellate court to consider it. Id; White v. Wilkerson, 328 S.C. 179,
493 S.E.2d 345 (1997).
Accordingly, the Court of Appeals erred in addressing the admissibility
of Officer Avenel's hearsay testimony, and that portion of the Court of
Appeal's judgment is vacated.
Waller, A.J., not participating.