ORDERS:
ORDER
STATEMENT
OF CASE
THIS
MATTER is an appeal by the South Carolina Department of Motor Vehicles
(“Department”) from a Final Order and Decision of the South Carolina Division
of Motor Vehicle Hearings (“DMVH”). The DMVH’s Final Order and Decision was
issued following an administrative hearing held pursuant to S.C. Code Ann. §
56-5-2951(B)(2) (Rev. 2006). The Department claims that the DMVH lacked
jurisdiction over Respondent’s contested case hearing and contends that
Respondent’s suspension should be reinstated. The Administrative Law Court
(“ALC” or “Court”) has jurisdiction to hear this matter pursuant to S.C. Code
Ann. § 1-23-660 (Supp. 2006). Upon consideration of the briefs, the DMVH’s Final
Order and Decision is REVERSED.
FACTS
On November 9, 2007, Respondent was arrested for driving under the
influence and refused to submit to a breath test. Pursuant to Section
56-5-2951(A), the Department suspended Respondent’s license to drive and issued
a Notice of Suspension, which explained in detail that Respondent had thirty
(30) days to schedule an implied consent hearing, by written request and
payment of the filing fee, in order to challenge the suspension. As evidenced
from the filing fee receipt in the record on appeal, Respondent did not request
a hearing until December 27, 2007.
On December 31, 2007, the Notice of Hearing was issued notifying
the parties that a hearing would be held on January 15, 2008. On January 7,
2008, prior to the hearing, the Department attempted to dismiss that matter by
filing a motion to dismiss based on lack of jurisdiction. The Department
concedes in its brief on appeal that service of the motion was defective
because it failed to serve all parties involved in this matter. However, the
Department argues that its motion is inconsequential because the Hearing
Officer did not have jurisdiction because of Respondent untimely hearing
request.
The hearing was held as scheduled, on January 15, 2008, with the
Hearing Office and attorney for Respondent present. Neither the Department,
the arresting officer, nor Respondent attended. After the record was opened, attorney
for Respondent motioned for dismissal. In the Order of Dismissal, the Hearing
Officer noted the Petitioner’s failure to attend the hearing and lack of
notification thereof and rescinded Respondent’s suspension pursuant to Rule 13
of the DMVH Rules of Procedure. The Department now appeals.
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 (Supp. 2006). 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) (Supp. 2007); 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, including the ALC, to review agency
decisions is provided by S.C. Code Ann. §1-23-380(A)(5) (Supp. 2007). See S.C. Code Ann. § 1-23-380(B) (Supp. 2007) (directing Administrative Law Judges
to conduct appellate review in the same manner prescribed in Section
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) (Supp. 2007).
A
decision is supported by “substantial evidence” when the record as a whole
allows reasonable minds to reach the same conclusion reached by the agency. Bilton
v. Best Western Royal Motor Lodge, 282 S.C. 634, 641, 321 S.E.2d 63, 68
(Ct. App. 1984). A decision will not be set aside simply because reasonable
minds may differ on the judgment. Lark, 276 S.C. at 136, 276 S.E.2d
304, 307. The fact that the record, when considered as a whole, presents the
possibility of drawing two inconsistent conclusions from the evidence does not
prevent the agency’s findings from being supported by substantial evidence. Waters
v. S.C. Land Resources Conservation Comm’n, 321 S.C. 219, 226, 467 S.E.2d
913, 917 (1996); Grant v. S.C. Coastal Council, 319 S.C. 348, 353, 461
S.E.2d 388, 391 (1995).
In
applying the substantial evidence rule, the factual findings of the
administrative agency are presumed to be correct. Rodney v. Michelin Tire
Co., 320 S.C. 515, 519, 466 S.E.2d 357, 359 (1996) (citing Kearse
v. State Health and Human Servs. Fin. Comm’n, 318 S.C. 198, 200, 456 S.E.2d
892, 893 (1995)). The party challenging an agency action has the burden of
proving convincingly that the agency’s decision is unsupported by substantial
evidence. Waters, 321 S.C. at 226, 467 S.E.2d at 917.
ISSUE
ON APPEAL
Did the DMVH Hearing
Officer err in failing to dismiss this matter for lack of jurisdiction?
A person who gets behind the wheel of a motor vehicle in
this State impliedly consents to submit to a chemical test of breath, blood or
urine if found to have driven while under the influence. S.C. Code Ann. § 56-5-2950(a).
While submission to a chemical test is not compulsory, refusal to do so will
result in an immediate suspension of the driving privilege for at least ninety
days. S.C. Code. Ann. § 56-5-2951(A). However, pursuant to Section
56-5-2951(B)(2), a person may request an administrative hearing within 30 days
from the issuance of the notice of suspension. DMVH Rule 4(B) specifically
states that “unless otherwise provided by statute, a request for a contested
case hearing must be filed and served with thirty days after actual notice of the Department of Motor Vehicles’ determination.”
The record on appeal indicates that the Notice of Suspension
was served upon Respondent on the date of his arrest, November 9, 2007, after
he refused to submit to testing. Although Respondent complied with the filing
requirements set forth in Rule 4(A), Respondent failed to do so within the
timeframe dictated by subsection (B). Respondent’s right to a hearing expired
after the thirty (30) days passed. Furthermore, the DMVH Hearing Officer’s
powers and duties over procedural matters depend upon its jurisdiction. See DMVH Rule 20. Although the Motion of Dismiss was not properly served and the
arresting officer failed to provide notice that he would not be attending the
hearing, the DMVH Hearing Officer lacked jurisdiction in this matter and was in
error in ruling upon any procedural aspects of this contested case. Jurisdiction
is a question of law and can be raised at any time. Lake v. Reeder
Constr. Co., 330 S.C. 242, 498 S.E.2d 650 (Ct. App. 1998). Pursuant to
Section 1-23-380(A)(5)(c), this Court may reverse a decision made upon unlawful
procedure.
IT IS THEREFORE ORDERED, that the Order of the DHO is REVERSED and the suspension
of Respondent’s driving privilege is reinstated.
________________________________
John D. McLeod, Judge
S.C. Administrative Law Court
September 17, 2008
Columbia, SC
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