Friday, January 28, 2011

Hearsay Not Admissible to Establish PC at IC Hearings

In South Carolina Department of Motor Vehicles v. Larson, --- S.E.2d ----, 2011 WL 204795 (S.C.) the issue was whether a non-testifying Sergeant’s observations of the driver could be admitted through the testimony of another officer at the implied consent hearing, even if it constituted hearsay. Recognizing that such hearsay was admissible for probable cause purposes at a preliminary hearing in the criminal case, the Supreme Court of South Carolina still said NO! The Court stated that by law, the IC hearing was governed by the ordinary rules of evidence, which bar hearsay. The court distinguished the important differences between a preliminary hearing, and a drivers license suspension hearing, and also distinguished the caselaw offered by the State in support of using hearsay at the implied consent hearing:

“We find these cases are inapplicable to a driver's license suspension hearing. A preliminary hearing, as its name suggests, is not a final adjudication of a defendant's rights. Instead, a preliminary hearing merely serves as a determination of whether there is sufficient evidence to subject a defendant to further criminal proceedings. See Rule 2, SCRCrimP (providing for preliminary hearings and stating in part that “Any defendant charged with a crime not triable by a magistrate shall be brought before a magistrate and shall be given notice of his right to a preliminary hearing solely to determine whether sufficient evidence exists to warrant the defendant's detention and trial”); State v. Ramsey, 381 S.C. 375, 376, 673 S.E.2d 428, 428-29 (2009) ( “The purpose of a preliminary examination is to determine whether probable cause exists to believe that the defendant committed the crime and to warrant the defendant's subsequent trial.”).

In contrast, a license-suspension hearing may potentially terminate an important interest of the licensee. See Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971) (“Once licenses are issued, ..., their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without the procedural due process required by the Fourteenth Amendment.”); Hipp v. S.C. Dep't of Motor Vehicles, 381 S.C. 323, 325, 673 S.E.2d 416, 417 (2009) (“A person's interest in his driver's license is property that a state may not take away without satisfying the requirements of due process.”).

Because a license-suspension hearing constitutes a final adjudication of an important interest, we believe the Legislature promulgated section 56-5-2951 in such a way that guards against an automatic or rote elimination of this interest. Specifically, this section sets forth several statutory prerequisites that must be established before a Hearing Officer suspends a citizen's driver's license following an arrest for DUI. In the instant case, a determination of whether McCarson was lawfully arrested or detained for DUI. By including this element in section 56-5-2951, the Legislature placed the burden on the Department to present sufficient evidence of probable cause.

Given the significant difference between a preliminary hearing and a license-suspension hearing, we decline to extend the probable cause cases relied on by the Department to circumvent the well-established rules against hearsay. Thus, in proving that a driver was lawfully arrested or detained for DUI, the Department must present admissible evidence of probable cause. If we were to find otherwise, we would essentially render meaningless the procedure established by our Legislature in section 56-5-2951.”

Many states have statutes that read “The hearing shall proceed in the same manner as in other civil proceedings” or language to that effect. Perhaps it is time for the defense bar to re-visit to your respective states’ forums for these suspension hearings, and ask that they too bar hearsay.

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