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Unpublished Opinion No. 2011-UP-258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.