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25004 - Summersell v. SCDPS

Shearouse Adv. Sh. No.
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

John Patrick

Summersell, Petitioner

v.

South Carolina

Department of Public

Safety, Respondent.

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

Appeal From Charleston County

A. Victor Rawl, Circuit Court Judge

Opinion No. 25004

Submitted October 5, 1999.- Filed October 11, 1999

VACATED

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

for petitioner.

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.

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Summersell v. SCDPS

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.

FACTS

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.

ISSUE

Did the Court of Appeals err in addressing

whether Officer Avenel's hearsay testimony

was properly admitted under the Rules of

Evidence?

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Summersell v. SCDPS

DISCUSSION

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

objection.

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. ยง 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

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Summersell v. SCDPS

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.

,o~

Waller, A.J., not participating.

C.J.

A.J.

A.J.

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