ORDERS:
ORDER
STATEMENT
OF THE CASE
This
matter is an appeal by Appellant Paul Spear 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 (2006 & Supp. 2006). Spear contends that the
DMVH hearing officer erroneously sustained his driver’s license suspension for
refusing to submit to a breath test. Specifically, Spear claims that he was
not properly advised of his implied consent rights prior to the administration
of the test. The Administrative Law Court (ALC or Court) has jurisdiction to
review this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2007). Upon
consideration of the briefs, the DMVH’s Final Order and Decision is reversed.
BACKGROUND
On November 20, 2007, Officer
Barnett of the Newberry Police Department arrested Spear for driving under the
influence (DUI) and transported him to the Newberry County Detention Center for a breath test. Upon arriving at the detention center, Officer Barnett
read the implied consent advisement to Spear, but he did not provide Spear with
a tangible copy of the advisement form. Officer Barnett subsequently issued Spear
a Notice of Suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (2006) for
refusing to submit to breath testing.
Spear
subsequently filed a request with the DMVH for an administrative hearing to
challenge his suspension. An administrative hearing was held on February 13,
2008. On March 13, 2008, the DMVH hearing officer issued a Final Order and
Decision, in which she sustained Spear’s suspension. Spear now appeals.
ISSUE
ON APPEAL
Did the DMVH hearing officer err by sustaining
Spear’s suspension when Spears was not advised in writing of his implied
consent rights prior to the administration of the breath test?
STANDARD
OF REVIEW
The DMVH is authorized
by law to determine contested cases arising from the South Carolina Department
of Motor Vehicles (Department). See S.C. Code Ann. § 1-23-660 (Supp.
2007). Therefore, the DMVH is an “agency” under the Administrative Procedures
Act (APA). See S.C. Code Ann. § 1-23-505(2) (as amended by 2008 S.C. Act
No. 334). As such, the APA’s standard of review governs appeals from decisions
of the DMVH. See S.C. Code Ann. § 1-23-380 (as amended by 2008 S.C. Act
No. 334); 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(5) (as amended by 2008 S.C. Act No.
334). See S.C. Code Ann. § 1-23-600(E) (as amended by 2008 S.C. Act No.
334) (directing administrative law judges to conduct appellate review in the
same manner prescribed in § 1-23-380). 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(5) (as amended by 2008 S.C. Act No. 334).
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 v. Bi-Lo, Inc., 276 S.C. 130,
136, 276 S.E.2d 304, 307 (1981). 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).
DISCUSSION
Spear argues that the
DMVH hearing officer erred by sustaining his suspension since he was not
advised in writing of his implied consent rights prior to the administration of
the breath test. The Court agrees.
S.C. Code Ann. §
56-5-2950(a) (2006) provides in pertinent part:
No tests may be administered or samples obtained unless the
person has been informed in writing that: (1) he does not have to
take the test or give the samples, but that his privilege to drive must be
suspended or denied for at least ninety days if he refuses to submit to the
tests and that his refusal may be used against him in court; (2) his privilege
to drive must be suspended for at least thirty days if he takes the tests or
gives the samples and has an alcohol concentration of fifteen one-hundredths of
one percent or more; (3) he has the right to have a qualified person of his own
choosing conduct additional independent tests at his expense; (4) he has the
right to request an administrative hearing within thirty days of the issuance
of the notice of suspension; and (5) if he does not request an administrative
hearing or if his suspension is upheld at the administrative hearing, he must
enroll in an Alcohol and Drug Safety Action Program.
S.C. Code Ann. § 56-5-2950(a) (2006)
(emphasis added).
Here, the videotape of
the test-site shows that, while Officer Barnett did read the implied consent
advisement to Spear, he did not give Spear a tangible copy of the advisement form
prior to the administration of the breath test. Thus, Section 56-5-2950(a) was
clearly violated.
Nevertheless, the
Department, relying on Taylor v. S.C. Dep’t. of Motor Vehicles,
368 S.C. 33, 627 S.E.2d 751 (Ct. App. 2006), cert. granted, Shearouse
Adv. Sh. No. 35 (2007), argues that the hearing officer did not err by
sustaining Spear’s suspension. In Taylor, a motorist was arrested for
DUI after being involved in an accident. Upon determining that the motorist
could not take a breath test due to the heavy mouth injuries that he sustained
from the accident, the arresting officer requested the motorist to submit to a
blood test. The arresting officer read out loud to the motorist a form which
set forth the motorist’s implied consent rights, but he did not provide the
motorist with a tangible copy of the form. The motorist refused the blood test
and, as a result, was issued a Notice of Suspension pursuant to Section
56-5-2951(A). An administrative hearing was subsequently held regarding the
suspension, at which the motorist argued that the arresting officer violated
Section 56-5-2950 by failing to give him a tangible copy of the implied consent
form. On review of the matter, the Court of Appeals held that “a violation of
section 56-5-2950 without resulting prejudice will not lead to a suppression of
the evidence obtained pursuant to this section.” Taylor, 368 S.C. at
38, 627 S.E.2d at 754. The court then concluded that the motorist did not
suffer prejudice as a result of the officer’s violation of § 56-5-2950,
explaining:
Taylor argues he was not informed of the implied consent
rights in writing as provided by section 56-5-2950. Taylor does not argue that
he did not receive the implied consent rights, or that he would have provided a
blood test if he had received the implied consent rights in writing. Therefore,
Taylor was not prejudiced by the fact that Officer Hamm read the implied
consent rights out loud. Because Taylor was not prejudiced, the trial court
erred in reversing the administrative hearing officer’s order.
Id.
In this case, the
following exchange occurred between Spear and his attorney, Heath Taylor, at the hearing:
Mr. Taylor: Do you think it would
have helped you in your decision whether or not to refuse or take the test if
you had had this piece of paper [the implied consent advisement form] in your
hands that evening?
Mr. Spear: I believe it would.
Mr. Taylor: You think it would have changed your
decision?
Mr. Spear: Yes, sir.
Thus, unlike the motorist in Taylor, Spear testified that being advised of his implied consent rights in writing
would have changed his decision to refuse testing. This difference is very
significant since the Taylor court, in making its prejudice
determination, expressly noted that the motorist had not argued that “he would
have provided a blood test if he had received the implied consent rights in
writing.”
The hearing officer in
this case gave two reasons for her decision not to accept Spear’s testimony.
The first was that Spear “verbally stated that he was not going to take the
breath test before and after he was read the Advisement of Implied Consent
Rights.” However, while this statement is true, the hearing officer’s reasoning
fails to account for the purpose of the requirement that the implied consent be
given in writing. “The Court must presume the legislature did not intend a
futile act, but rather intended its statutes to accomplish something.” Denene,
Inc. v. City of Charleston, 352 S.C. 208, 212, 574 S.E.2d 196, 198 (2002)
(citing TNS Mills, Inc. v. S.C. Dep’t of Revenue, 331 S.C. 611, 503
S.E.2d 471 (1998)). The purpose of requiring that a motorist be given a
written copy of the implied consent form is clearly to insure that the motorist
receives sufficient notice of the consequences of his actions. The reasoning
of Taylor thus establishes that though written notice is a prerequisite
to lawfully establishing informed consent, if there is no prejudice from that failure, then there is no harm to the motorist and if there is no
harm, then the defective notice is immaterial.
Here, there is evidence
of prejudice and thus material evidence of harm resulting from the failure to
give written notice. The decision below nonetheless discounts that harm by
inferring that an assertion to refuse the test before any notice and a
subsequent affirmation after defective notice establishes that no harm
occurred. The import of that reasoning is that evidence of defective notice
may establish that there is evidence of no harm. In other words, the
prerequisite of written notice may be made immaterial by evidence of verbal
notice. That reasoning follows the fallacy of petition principii (begging the question) – i.e., assuming as a premise for one’s argument the
very conclusion that one intends to prove. See Irving M. Copi, Introduction
to Logic 97-98 (5th ed. 1978).
Furthermore, the fact that lack of harm negates the implication of defective
notice does not inversely lead to the logical conclusion that verbal notice, no
matter how sufficient, discounts the prerequisite of written notice. Rather,
the harm emanates from the failure to give adequate notice, and it cannot necessarily
be assuaged by giving defective notice.
The second reason cited
by the hearing officer was that Spear “refused to sign any of the documents.” This
fact, on its face, inferentially supports a conclusion that Spear would have
refused the test even if properly advised of his implied consent rights. However,
when put in context with the evidence of Spear’s conduct at the test site, the
inference fails. Here, the test-site videotape shows that Officer Barnett
asked Spear, “Since you refused the test, am I to understand that you’re going
to refuse signing anything?” To which Spear answered, “Correct.” Officer
Barnett then stated, “I just need to know so I can write ‘Refused’ on there,” and
dropped the matter. The videotape further shows that, throughout the testing
process, Spear respectfully responded to all of Officer Barnett’s questions. While
a court does not have to accept uncontroverted testimony as establishing the
truth, the same should be accepted unless there is reason for disbelief. See Elwood Constr. Co. v. Richards, 265 S.C. 228, 234, 217 S.E.2d 769, 771
(1975). In other words, “[a] court may not base its findings on a suspicion
which is contrary to undisputed positive testimony.” Hankerson v. Moody,
329 S.E.2d 791, 794 (Va. 1985); see also Hatcher v. Sec’y, Dep’t of Health
and Human Servs., 898 F.2d 21, 24 (4th Cir. 1989) (finding
evidence was insufficient to warrant “a wholesale rejection” of claimant’s
testimony). In this case, the simple fact that Spear refused to sign the
documents does not establish an adequate basis to negate his testimony that he
would not have refused the test had he been properly advised of his implied
consent rights.
Accordingly,
the Court finds that, in light of Spear’s express testimony to the contrary,
the hearing officer’s conclusion that Spear did not suffer prejudice as a
result of Officer Barnett’s failure to comply with Section 56-5-2950 was clearly
erroneous in view of the reliable, probative, and substantial evidence on the
whole record. Accordingly, the DMVH’s Final Order and Decision must be
reversed.
ORDER
IT
IS THEREFORE ORDERED that the DMVH’s Final Order and Decision is REVERSED,
and that the administrative suspension of Spear’s driver’s license shall be
rescinded.
IT
IS SO ORDERED.
______________________________
Ralph K. Anderson, III
Administrative
Law Judge
September 8, 2008
Columbia, South Carolina
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