ORDERS:
ORDER
SCDL Number: 004110872
STATEMENT OF THE CASE
This matter is an appeal by Roland Hornsby (“Hornsby”) from a Final Order and Decision of the South Carolina Division of Motor Vehicle Hearings (“DMVH”). The DMVH issued a Final Order and Decision following an administrative hearing held pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (2006). The Administrative Law Court (“ALC”) has jurisdiction to review this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2005). Upon consideration of the briefs, the court affirms the DMVH’s Final Order and Decision.
BACKGROUND
The license to operate a motor vehicle upon South Carolina’s public highways is not a property right, but is a mere privilege subject to reasonable regulations in the interests of public safety and welfare. Sponar v. S.C. Dep’t of Pub. Safety, 361 S.C. 35, 39, 603 S.E.2d 412, 415 (Ct. App. 2004) (quoting Summersell v. S.C. Dep’t of Pub. Safety, 334 S.C. 357, 366, 513 S.E.2d 619, 624 (Ct. App. 1999), vacated in part on other grounds, 337 S.C. 19, 522 S.E.2d 144 (1999)), cert. granted (Nov. 17, 2005). Consistent with this principle, S.C. Code Ann. § 56-5-2950(a) (2006) provides in pertinent part:
A person who drives a motor vehicle in this State is considered to have given consent to chemical tests of his breath, blood, or urine for the purpose of determining the presence of alcohol or drugs or the combination of alcohol and drugs if arrested for an offense arising out of acts alleged to have been committed while the person was driving a motor vehicle while under the influence of alcohol, drugs, or a combination of alcohol and drugs. A breath test must be administered at the direction of a law enforcement officer who has arrested a person for driving a motor vehicle in this State while under the influence of alcohol, drugs, or a combination of alcohol and drugs.
Under S.C. Code Ann. § 56-5-2951(A) (2006), the license of a motorist who refuses to submit to the chemical testing required under Section 56-5-2950(a) must be immediately suspended. However, under S.C. Code Ann. § 56-5-2951(B)(2) (2006), a motorist who has his license so suspended may request an administrative hearing to challenge the suspension.
FACTS
On May 6, 2006, at around 3:45 a.m., Officer Ernest T. Reynolds of the City of Columbia Police Department observed Hornsby’s vehicle drive through a red traffic light at the intersection of Gervais and Assembly Streets in Columbia. Officer Reynolds initiated a traffic stop. While speaking to Hornsby, Officer Reynolds smelled alcohol on Hornsby’s breath. He asked Hornsby to step out of his vehicle and conducted several field sobriety tests on Hornsby. Hornsby failed all of the field sobriety tests. Officer Reynolds then arrested Hornsby for driving under the influence (“DUI”) and transported Hornsby to the Columbia Police Department for a breath test.
Upon reaching the Columbia Police Department, Officer Reynolds took Hornsby to a separate room designed for the administration of breath tests. Officer Chris Price of the City of Columbia Police Department was asked to administer the breath test to Hornsby. Officer Price gave Hornsby a copy of the implied consent form and read the form to him. Thereafter, a twenty-minute pre-test waiting period was observed. At the conclusion of the waiting period, Officer Price offered Hornsby an opportunity to provide a breath sample. According to Officer Price, Hornsby took the mouthpiece and attempted to blow, but did not put his lips firmly around the mouthpiece and gave only quick, short breaths. The breath test machine produced an “Invalid Sample” reading. After printing out the evidence ticket from the breath test machine, Officer Price asked Hornsby if he wanted to refuse testing or if he would like to attempt to take the test again. Hornsby stated that he would like to refuse testing. Based on this refusal, Hornsby was issued a written Notice of Suspension pursuant to Section 56-5-2951(A).
Thereafter, pursuant to Section 56-5-2951(B)(2), Hornsby filed a request for an administrative hearing to challenge the suspension. An administrative hearing was held on June 6, 2006. The DMVH hearing officer sustained Hornsby’s suspension. Hornsby now appeals.
ISSUES ON APPEAL
1. Should the DMVH hearing officer’s Final Order and Decision be reversed on the basis that Officer Reynolds failed to testify that the applicable events occurred within his jurisdiction and thus the lawfulness of the arrest was not established?
2. Should the DMVH hearing officer’s Final Order and Decision be reversed on the basis that Officer Price failed to testify that he was a certified DataMaster operator?
3. Should the DMVH hearing officer’s Final Order and Decision be reversed on the basis that Officer Price failed to comply with SLED implied consent policy 8.12.5(L)(2)(f)(iv) after the first breath test?
4. Should the DMVH hearing officer’s Final Order and Decision be reversed on the basis that Officer Price failed to testify that a twenty-minute pre-test waiting period was observed prior to the first breath test?
5. Should the DMVH hearing officer’s Final Order and Decision be reversed on the basis that law enforcement did not properly establish that two tests should be given instead of one?
STANDARD OF REVIEW
The DMVH is authorized by law to determine contested cases arising from the Department. See S.C. Code Ann. § 1-23-660 (amended by 2006 S.C. Act No. 387). Therefore, the DMVH is an “agency” under the Administrative Procedures Act (“APA”). See S.C. Code Ann. § 1-23-310(2) (2005). As such, the APA’s standard of review governs appeals from decisions of the DMVH. See S.C. Code Ann. § 1-23-380(A) (amended by 2006 S.C. Act No. 387); see also Byerly Hosp. v. S.C. State Health & Human Servs. Fin. Comm’n, 319 S.C. 225, 229, 460 S.E.2d 383, 385 (1995). The standard used by appellate bodies to review agency decisions is provided by S.C. Code Ann. §1-23-380(A)(5) (amended by 2006 S.C. Act No. 387). See S.C. Code Ann. § 1-23-380(B) (amended by 2006 S.C. Act No. 387) (directing Administrative Law Judges to conduct a review “in the same manner prescribed in [§1-23-380](A)”). This section provides:
The court may not substitute its judgment for the judgment of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision [of the agency] if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(a) in violation of constitutional or statutory provisions;
(b) in excess of the statutory authority of the agency;
(c) made upon unlawful procedure;
(d) affected by other error of law;
(e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
S.C. Code Ann. § 1-23-380(A)(5) (amended by 2006 S.C. Act No. 387).
Thus, pursuant to the APA, this court’s review is limited to deciding whether the DMVH’s Final Order and Decision is unsupported by substantial evidence or is affected by an error of law. Bass v. Kenco Group, 366 S.C. 450, 457, 622 S.E.2d 577, 581 (Ct. App. 2005). Substantial evidence is not a mere scintilla of evidence, nor the evidence viewed blindly from one side of the case, but is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion the agency reached in order to justify its action. Hargrove v. Titan Textile Co., 360 S.C. 276, 289, 599 S.E.2d 604, 611 (Ct. App. 2004). The possibility of drawing two inconsistent conclusions from the evidence does not prevent the agency’s findings from being supported by substantial evidence. Id. at 290, 599 S.E.2d at 611. The party challenging an agency’s decision has the burden of proving convincingly that the agency’s decision is unsupported by substantial evidence. Waters v. S.C. Land Resources Conservation Comm’n, 321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996).
DISCUSSION
Issue 1: Lawfulness of the Arrest
Hornsby argues that because “[t]he officers in the instant case failed to testify that the events in question occurred within the City limits of the City of Columbia where they were employed as police officers,” the arrest was unlawful under State v. McAteer, 340 S.C. 644, 532 S.E.2d 865 (2000). However, at the hearing, Officer Reynolds testified that he first observed Hornsby while he was at a traffic light at the intersection of Gervais and Assembly Streets, an intersection which is right in the middle of downtown Columbia. Because it is indisputable that the intersection of Gervais and Assembly Streets is within the city limits of Columbia, the court takes judicial notice of this fact. See SCRE 201; Masters v. Rodgers Dev. Group, 283 S.C. 251, 256, 321 S.E.2d 194, 197 (Ct. App. 1984) (holding that original judicial notice of adjudicative facts at the appellate level should be limited to facts that are indisputable). Because Officer Reynolds testified that he is a patrol officer for the City of Columbia Police Department and because the offense occurred within the City’s limits, the court finds that the arrest was lawful. Therefore, the DMVH Hearing Officer’s Final Order and Decision will not be reversed on this ground.
Issues 2-4: Arguments Relating to Alleged Failure to Follow Statutory and Regulatory Requirements
Next, Hornsby presents three arguments relating to whether Officer Price complied with the statutory and regulatory requirements relating to obtaining a breath sample and providing Hornsby with his implied consent rights. First, Hornsby argues that the DMVH hearing officer erred in sustaining his suspension since Officer Price did not present any evidence establishing that he was a certified DataMaster operator. Second, Hornsby argues that Officer Price failed to comply with SLED policy requiring the taking of a breath test. Third, Hornsby claims that Officer Price did not follow SLED policy requiring a twenty-minute observation period before testing.
None of these arguments avails Hornsby. Although Hornsby attempts to rest upon Officer Price’s alleged failure to follow the proper procedures required to obtain a breath test, none of those procedures is relevant or required in a refusal case. It is uncontroverted that after the initial invalid sample, Hornsby refused testing. In a refusal case such as this one, the scope of the administrative hearing is limited to whether the motorist: (1) was lawfully arrested; (2) was advised in writing of his Section 56-5-2950 rights; and (3) refused to submit to a test. See S.C. Code Ann. § 56-5-2951(F); S.C. Dep’t of Motor Vehicles v. Nelson, 364 S.C. 514, 526, 613 S.E.2d 544, 550 (Ct. App. 2005). As the Court of Appeals has noted:
This is not a trial in regard to the guilt or innocence of the defendant on a DUI charge. Rather, the gravamen of the administrative hearing is a determination of the efficacy and applicability of the implied consent law. The query posited to the administrative hearing officer is: did the person violate the implied consent law.
Id. at 525-26, 613 S.E.2d at 550 (quoting Summersell, 334 S.C. at 369, 513 S.E.2d at 625).
a. Officer Price’s Qualifications to Administer Breath Test
Because Hornsby refused to submit to breath testing, it was unnecessary for Officer Price to offer evidence regarding his qualifications to administer the breath test. While Hornsby argues that, because he submitted a breath sample in the first test, the scope of the hearing should have been expanded to include Officer Price’s qualifications, he does not provide any reasoning or cite any legal authority to support this position. There is nothing in Section 56-5-2951(F) that states, or even suggests, that the scope of a refusal case should ever be expanded to include any of the four issues listed under Section 56-5-2951(F)(4). Therefore, the court finds that the qualifications of Officer Price were not a relevant issue for the hearing.
Moreover, even if Officer Price’s qualifications were a relevant issue for the hearing, Officer Price did testify during his closing argument that he was a certified DataMaster operator. Although Hornsby’s attorney objected to the record being reopened to include this testimony, the hearing officer overruled his objection and allowed the testimony to be entered. The decision whether to reopen a record for additional evidence is within the trial court’s sound discretion and will not be disturbed on appeal absent an abuse of that discretion. Wright v. Strickland, 306 S.C. 187, 188, 410 S.E.2d 596, 597 (Ct. App. 1991). The court finds no abuse of discretion by the DMVH hearing officer in allowing this testimony. Because a trial is a search for the truth, liberality is the linchpin of the rule. State v. Wren, 322 S.C. 103, 105, 470 S.E.2d 111, 112 (Ct. App. 1996).
Finally, even if the issue of Officer Price’s qualifications was within the scope of the hearing, and even if the hearing officer abused his discretion in allowing Officer Price to testify regarding his qualifications, rescission of Hornsby’s suspension would still not be warranted. The Court of Appeals has held that, in refusal cases such as this one, a violation of Section 56-5-2950 without resulting prejudice will not lead to the rescission of a Section 56-5-2951 suspension. See Taylor v. S.C. Dep’t. of Motor Vehicles, 368 S.C. 33, 38, 627 S.E.2d 751, 754 (Ct. App. 2006); see also S.C. Code Ann. § 56-5-2950(e) (2006) (“The failure to follow . . . the provisions of this section, shall result in the exclusion from evidence any tests results, if the trial judge or hearing officer finds that such failure materially affected the accuracy or reliability of the tests results or the fairness of the testing procedure.”). Here, there is absolutely no evidence in the record that Hornsby’s decision to refuse the breath test was in any way influenced by the qualifications of Officer Price (or the lack thereof). In addition, one does not need special training to understand an individual’s clear statement of refusal. Therefore, a finding of prejudice is not warranted. For these reasons, the DMVH hearing officer’s Final Order and Decision will not be reversed because of Officer Price’s alleged failure to testify as to his qualifications.
b. Officer Price’s Alleged Violation of SLED Implied Consent Policy 8.12.5(L)(2)(F)(iv)
Similarly, Hornsby contends that reversal is warranted because Officer Price allegedly failed to comply with SLED Implied Consent Policy 8.12.5(L)(2)(f)(iv), which provides in pertinent part: “If an ‘Invalid Sample’ . . . reading is obtained and the arresting officer still desires a breath test, the checking of the mouth, time stamp, and observation period are required to be repeated.” Hornsby argues that the hearing officer erred in sustaining his suspension since, after the first test, which ended with a reading of “Invalid Sample,” the three procedures set forth in SLED implied consent policy 8.12.5(L)(2)(f)(iv) were not repeated. The court disagrees.
As discussed above, in refusal cases such as this one, the scope of the administrative hearing is generally limited to whether the motorist: (1) was lawfully arrested; (2) was advised in writing of his Section 56-5-2950 rights; and (3) refused to submit to a test. S.C. Code Ann. § 56-5-2951(F) (2006); Nelson, 364 S.C. at 526, 613 S.E.2d at 550. The only method by which the hearing may be expanded beyond these three issues to include a SLED policy compliance issue is through a motion pursuant to § 56-5-2950(e). Section 56-5-2950(e) provides:
Policies, procedures, and regulations promulgated by SLED may be reviewed by the trial judge or hearing officer on motion of either party. The failure to follow any of these policies, procedures, and regulations, or the provisions of this section, shall result in the exclusion from evidence any tests results, if the trial judge or hearing officer finds that such failure materially affected the accuracy or reliability of the tests results or the fairness of the testing procedure.
(emphasis added).
Thus, suspensions under Section 56-5-2951 cannot be rescinded simply because an arresting officer failed to comply with a SLED policy unless the motorist makes a motion during the hearing requesting the DMVH hearing officer to review such SLED policy and the hearing officer determines that law enforcement’s failure to comply with the SLED policy materially affected the accuracy or reliability of the tests results or the fairness of the testing procedure. Due process requires that such a motion be timely made so that the Department is given the opportunity to respond to the motion with evidence that either shows that the SLED policy was followed or that the violation of the SLED policy did not materially affect the accuracy or reliability of the tests results or the fairness of the testing procedure. See Murdock v. Murdock, 338 S.C. 322, 333, 526 S.E.2d 241, 248 (Ct. App. 1999) (“Procedural due process requires that a litigant be placed on notice of the issues which the court is to consider.”).
Here, at no point during the hearing did Respondent’s attorney mention, or even allude to, SLED implied consent policy 8.12.5(L)(2)(f)(iv). Therefore, the hearing officer did not commit error by not considering it. Moreover, based on the existing record, it is far from clear that any failure by law enforcement to comply with SLED implied consent policy 8.12.5(L)(2)(f)(iv) affected the fairness of the testing procedure.
Furthermore, SLED implied consent policy 8.12.5(L)(2)(f)(iv) requires the three procedures enumerated therein to be repeated only if “the arresting officer still desires a breath test.” In a refusal case, there is no completed breath test. SLED implied consent policies make it clear that the purpose of both the mouth-checking and the twenty-minute pre-test waiting period requirements is to ensure that test results, if obtained, are accurate. See SLED implied consent policies 8.12.5(G)(5) (allowing certain types of dental work to remain in a motorist’s mouth because they “will not affect breath test results” when pre-test waiting period is observed) and 8.12.5(J)(1) (“The purpose of the observation period is to allow for the deprivation of mouth alcohol.”). Regarding the time stamp, its purpose is simply to show that the twenty-minute pre-test waiting period was indeed observed; in fact, SLED policy explicitly states that the time stamp is unnecessary in refusal situations. See SLED implied consent policy 8.12.5(I)(1) (“A DataMaster will be used to time stamp the SLED evidence ticket to denote the beginning of the observation period unless a refusal has already occurred. In this case, a time stamp is not necessary.”). Thus, the objectives of these three procedures are not implicated in a refusal case. Therefore, whether or not a law enforcement officer failed to follow any of these three procedures is irrelevant in a refusal case.
There is simply no evidence to suggest that Hornsby’s decision to refuse testing was influenced by Officer Price’s failure to comply with SLED implied consent policy 8.12.5(L)(2)(f)(iv). In fact, based on Officer Price’s testimony regarding the lack of effort that Hornsby put into providing a sufficient breath sample for the first test, substantial evidence supports a finding that Hornsby decided to refuse testing prior to the first test. Therefore, the DMVH’s decision will not be reversed on this ground.
c. Lack of Evidence Regarding Observation of Twenty-Minute
Pre-Test Waiting Period During the First Test
Next, Hornsby argues that the DMVH hearing officer erred in sustaining his suspension since Officer Price did not testify that a twenty-minute pre-test waiting period was observed during the first breath test. According to Hornsby, Section 56-5-2950(a), S.C. Code Ann. § 56-5-2953(A)(2)(d) (2006) and SLED implied consent policy 8.12.5(J) all require that a twenty-minute pre-test waiting period be observed prior to the administration of the breath test.
This argument fails as well. First, at no point during the hearing did Hornsby mention SLED implied consent policy 8.12.5(J). Therefore, for the reasons discussed above, the scope of the hearing was limited to whether Hornsby: (1) was lawfully arrested; (2) was advised in writing of his Section 56-5-2950 rights; and (3) refused to submit to a test. Thus, Officer Price’s compliance with the twenty-minute pre-test waiting period requirement was outside the scope of the hearing.
Second, according to the official transcript of the hearing, Officer Price did in fact testify that he complied with the twenty-minute pre-test waiting period requirement. Specifically, Officer Price testified that, after checking Hornsby’s mouth during the first test, “we went into the 20 minute observation.” Officer Price then testified regarding what he and Hornsby discussed during this twenty-minute period. Thus, even if the twenty-minute pre-test waiting period requirement was a relevant issue for the hearing, substantial evidence supports a finding that Officer Price complied with this requirement. Therefore, the DMVH hearing officer’s Final Order and Decision will not be reversed on this ground.
Issue 5: Lack of Evidence Regarding Propriety of Second Test
Finally, Hornsby makes a cursory argument, without any citation to legal authority, that “[a] review of the transcript may reveal that no basis was given for asking the Appellant to submit to a second test and therefore the alleged refusal in that second test should not be held against the Appellant.”
Such a speculative and vague argument must be rejected. Because Hornsby has not provided any argument or supporting authority for his claim, he is deemed to have abandoned this issue. See First Sav. Bank v. McLean, 314 S.C. 361, 363, 444 S.E.2d 513, 514 (1994) (holding that appellant abandoned issue for which he failed to provide any argument or supporting authority); Eaddy v. Smurfit-Stone Container Corp., 355 S.C. 154, 164, 584 S.E.2d 390, 396 (Ct. App. 2003) (“This court has noted that short, conclusory statements made without supporting authority are deemed abandoned on appeal and therefore not preserved for our review.”); Shapemasters Golf Course Builders, Inc. v. Shapemasters, Inc., 360 S.C. 473, 480 n.4, 602 S.E.2d 83, 87 n.4 (Ct. App. 2004) (“It is not necessary for this court to address Appellants’ remaining issues because Appellants fail to provide legal authority to support their arguments.”). Moreover, it is Hornsby’s duty, not this court’s, to advance his arguments on appeal. See, e.g., Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala. 1994) (“We have unequivocally stated that it is not the function of this Court to do a party’s legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument.”). Therefore, the DMVH hearing officer’s Final Order and Decision will not be reversed on this ground.
ORDER
For all of the foregoing reasons, it is
ORDERED that the DMVH’s Final Order and Decision is AFFIRMED.
IT IS SO ORDERED.
______________________________
Paige J. Gossett
Administrative Law Judge
December 20, 2006
Columbia, South Carolina
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