ORDERS:
ORDER
STATEMENT OF THE 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) (2006). The Administrative Law Court (“ALC”) has jurisdiction to review this matter pursuant to S.C. Code Ann. § 1-23-660 (amended by 2006 S.C. Act No. 387). Upon consideration of the appellate briefs filed in this matter, the DMVH’s Final Order and Decision is reversed.
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.
Section 56-5-2950(a) continues:
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.
Thus, under S.C. Code Ann. § 56-5-2951(A) (2006), the license of a motorist who refuses to submit to the 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. If such a hearing is requested, the scope of the hearing must be limited to whether the person: (1) was lawfully arrested or detained; (2) was advised in writing of the rights enumerated in Section 56-5-2950; and (3) refused to submit to a test pursuant to Section 56-5-2950. S.C. Code Ann. § 56-5-2951(F) (2006).
FACTS
On June 2, 2006, Officer Joshua Batisto, a police officer for the town of Goose Creek, arrested the Respondent, Theresa Carroll Pryor (“Pryor”), for driving under the influence (“DUI”). He turned Pryor over to the custody of Officer William Harding, who had come onto the scene to assist Officer Batisto. Officer Harding transported Pryor to the Goose Creek Police Department for a breath test. After reaching the Goose Creek Police Department, Officer Harding, a certified DataMaster operator, offered Pryor the opportunity to submit a breath sample. Pryor refused. Based on this refusal, Officer Harding issued Pryor a notice of suspension pursuant to Section 56-5-2951(A).
Pursuant to Section 56-5-2951(B)(2), Pryor filed a request for an administrative hearing to challenge the suspension. The DMVH held an administrative hearing on June 21, 2006. At the hearing, Officer Harding offered into evidence a copy of an implied consent form. At the bottom of the form, on a line labeled “Subject’s Signature (Received Copy),” were a few very faint marks. Officer Harding also provided the following testimony on direct:
I transported [Pryor] to the Goose Creek Police Department DataMaster room where I . . . advised Ms. Pryor of her rights and . . . proceeded entering the information into the DataMaster machine . . . Between the observation period, I offered Ms. Pryor the opportunity to provide the breath sample. Ms. Pryor declined stating no. At which time I advised Ms. Pryor that her license was being suspended pursuant to the form. Ms. Pryor also attached all her signatures to all the forms I presented her.
On cross-examination, Officer Harding testified that he “advised [Pryor] pursuant to the form, implied consent form, that she had a right to a hearing and all that.” Pryor neither testified at the hearing nor presented any other evidence.
On July 11, 2006, the DMVH Hearing Officer issued a Final Order and Decision rescinding Pryor’s suspension. The DMVH Hearing Officer found that “Officer Harding did not offer any testimony or corroborating evidence to show that Respondent was advised of her Implied Consent Rights in writing according to Section 56-5-2950 and Sled Policies and procedures.” The Department now appeals.
ISSUE ON APPEAL
Did the DMVH Hearing Officer err in rescinding Pryor’s suspension on the ground that Officer Harding failed to offer any testimony or corroborating evidence to show that Pryor was advised in writing of her implied consent rights?
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
The Department argues that the DMVH Hearing Officer erred in rescinding Pryor’s suspension on the ground that Officer Harding failed to offer any testimony or corroborating evidence to show that he advised Pryor in writing of her implied consent rights. Specifically, the Department argues that “law enforcement’s failure to physically hand a copy of an Implied Consent Advisement to a motorist prior to an offer to submit a breath sample does not require rescission of the mandatory suspension.” In support of its argument, the Department cites the recent decision of the Court of Appeals in Taylor v. S.C. Department of Motor Vehicles, 368 S.C. 33, 627 S.E.2d 751 (Ct. App. 2006).
In Taylor, a motorist’s driver’s license was suspended pursuant to Section 56-5-2951(A), the same statute at issue in the case at bar, based on the motorist’s refusal to submit to a blood test after being arrested for driving under the influence. Although the arresting officer read aloud to the motorist a form which set forth the motorist’s implied consent rights, the officer did not provide the motorist with a tangible copy of the form. The motorist subsequently requested a hearing to challenge the suspension. The hearing officer sustained the suspension of the motorist’s license, but the circuit court reversed. On further appeal to the Court of Appeals, the Department argued that the circuit court erred because the motorist did not demonstrate how he was prejudiced by the fact that he did not receive a tangible copy of the form.
The Court of Appeals reversed the circuit court, relying heavily on State v. Huntley, 349 S.C. 1, 5, 562 S.E.2d 472, 474 (2002). The Taylor court interpreted the Huntley decision as follows:
[In Huntley], the supreme court reversed the suppression of the breathalyzer test results because the defendant was not prejudiced by the statutory violation committed by the breathalyzer operator. Consequently, the Huntley decision dictates 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 of Appeals then noted that the motorist did not argue that he was not advised of his implied consent rights, or that he would have provided a blood sample if he had been advised of his implied consent rights in writing. Id. It therefore concluded that the motorist was not prejudiced by the fact that the arresting officer did not provide him with a tangible copy of the implied consent advisement form. Id. Thus, the Court of Appeals held that the circuit court erred in reversing the hearing officer’s order. Id.
Pryor argues that the Taylor decision was incorrectly decided and that this court should not follow it. However, pursuant to the doctrine of stare decisis, this court must follow Taylor. See 20 Am. Jur. 2d Courts § 142 (2005) (“Decisions of the court of appeals . . . should be followed by all lower courts but will not bind the state supreme court.”). Accordingly, any argument that a showing of prejudice is not required must be addressed to a higher appellate court.
Here, the record demonstrates that Pryor was orally advised of her implied consent rights prior to being asked to submit a breath sample, and Pryor has not argued otherwise. Under Taylor, any failure by Officer Harding to advise Pryor in writing of these rights does not warrant rescission of Pryor’s suspension, since Pryor has neither argued nor proven that she was prejudiced by such failure. In the absence of such showing of prejudice, the DMVH Hearing Officer erred in rescinding Pryor’s suspension on the ground that Officer Harding failed to offer any testimony or corroborating evidence to show that Pryor was advised in writing of her implied consent rights.
ORDER
For the foregoing reasons, it is
ORDERED that the DMVH’s Final Order and Decision is REVERSED and the Department’s suspension of Pryor’s driver’s license is reinstated.
IT IS SO ORDERED.
______________________________
Paige J. Gossett
Administrative Law Judge
January 12, 2007
Columbia, South Carolina
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