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 in connection with an administrative hearing that it held
pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (2006). The Administrative Law
Court (ALC) has jurisdiction to hear this matter pursuant to S.C. Code Ann. §
1-23-660 (Supp. 2005). Upon consideration of the brief filed by the Department
in this matter,
the DMVH’s Final Order and Decision is reversed as set forth below.
BACKGROUND
“In South Carolina, operating a motor vehicle is a privilege of the State, not a right of the
individual.” Taylor v. S.C. Dep’t. of Motor Vehicles, 368 S.C. 33,
36, 627 S.E.2d 751, 753 (Ct. App. 2006). 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.
Importantly,
Section 56-5-2950(a) continues to state:
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.
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 required under Section 56-5-2950. S.C. Code Ann. §
56-5-2951(F) (2006).
FACTS
On
October 23, 2005, at approximately 10:51 p.m., Officer Hyatt of the Greenville
Police Department was called to the scene of a traffic accident in the area of Augusta Road and Ferris Road. At that time, Officer Hyatt spoke with a number of witnesses
to the accident, who stated they observed the vehicle driven by Respondent
strike a vehicle that was stopped at a red light at the intersection. Upon
making contact with Respondent, Officer Hyatt observed a strong odor of
alcoholic beverage coming from her person. Respondent began arguing that the
other vehicle had backed into her. When asked for her license and
registration, Respondent presented her insurance card, and argued with the
officer that her insurance card was her registration. Officer Hyatt then
observed an open Bud Light can in the floorboard behind the passenger seat and
later discovered a 20 oz. plastic Sprite bottle containing a small amount of
liquid smelling like alcohol, two more beer cans, and a one liter bottle of
vodka with a small amount remaining. Officer Hyatt directed Respondent to exit
the vehicle, advised her of her rights, and attempted to administer two field
sobriety tests. Respondent was then arrested and taken to the detention
center, where Officer Hyatt directed Officer Barker to administer the
DataMaster test. In the DataMaster room, Officer Barker read to Respondent
Keyes the Miranda warning and the Implied Consent Advisement. Respondent
informed him that she did not wish to talk or answer any questions at that
time. Officer Barker then readied the DataMaster, waited the 20 minutes, and
offered Respondent an opportunity to submit a breath sample. She refused. He
then completed the Notice of Suspension, gave her copies of it, the BAC ticket
and the Implied Consent Advisement, and had her arraigned.
After
SCDMV received a Notice of Suspension from law enforcement, SCDMV suspended
Carter’s driver’s license for a period of ninety days in accord with state
law. Carter then requested an administrative hearing. On January 24, 2006,
AHO Tracy Holland convened the contested case hearing. Officers Hyatt and
Barker appeared and testified. AHO Holland subsequently issued an order
rescinding Carter’s suspension on the grounds that:
there was no
testimony or evidence that Officer Barker advised the Respondent of the Implied
Consent Advisement in writing: he did not give her a copy of the Advisement
before he offered her a breath test. I conclude as a matter of law that
Petitioner failed to meet its burden of proof.
DMV then timely
filed the instant appeal.
ISSUE
ON APPEAL
1. Did
the DMVH hearing officer err when she determined that Officer Barker’s reading
of the implied consent advisement form to Respondent did not satisfy the
requirements of Section 56-5-2950?
STANDARD OF REVIEW
The
DMVH is authorized by law to determine contested case hearings of the
Department of Motor Vehicles. See S.C. Code Ann. § 1-23-660 (Supp.
2005). Therefore, appeals from the decisions of the DMVH are properly decided
under the Administrative Procedures Act’s (APA) standard of review. In fact,
Section 1-23-660 now provides that all appeals from decisions of the DMVH hearing
officers must be taken to the ALC pursuant to the ALC’s appellate rules of
procedure. Thus, the Administrative Law Judge sits in an appellate capacity
under the Administrative Procedures Act (APA) rather than as an independent
finder of fact. In South Carolina, the provisions of the APA — specifically
Section 1-23-380(A)(6) — govern the circumstances in which an appellate body
may review an agency decision. That section states:
The court may reverse or modify the
decision 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)(6) (2005).
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). The well-settled case law in this state has also interpreted
the “substantial evidence” rule to mean that 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).
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)). Furthermore, the reviewing court is prohibited from
substituting its judgment for that of the agency as to the weight of the
evidence on questions of fact. Grant v. S.C. Coastal Council, 319 S.C.
348, 353, 461 S.E.2d 388, 391 (1995) (citing Gibson v. Florence Country Club, 282 S.C. 384, 386, 318 S.E.2d 365, 367 (1984)). Finally, 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.
DISCUSSION
Propriety of
Implied Consent Rights Advisement
The
Department argues that the DMVH hearing officer erred when she determined that
Officer Barker’s reading of the implied consent advisement form to Respondent
did not satisfy the requirements of Section 56-5-2950. According to the
Department, because there was no showing that Respondent was prejudiced as a
result of not receiving a written copy of the implied consent advisement form
prior to his refusal, the rescission was unwarranted pursuant to the Court of
Appeals’ decision in Taylor v. S.C. Dep’t. of Motor Vehicles, supra.
I agree.
In Taylor, a motorist’s driver’s license was suspended pursuant to
Section 56-5-2951(A) 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 written
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. The Department thereafter appealed to
the Court of Appeals, arguing that the circuit court erred because the motorist
did not demonstrate how he was prejudiced by the fact that he did not receive a
written copy of the form. The Court of Appeals ultimately reversed the circuit
court, relying heavily on State v. Huntley, 349 S.C. 1, 5, 562 S.E.2d
472, 474 (2002).
Importantly, 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. Therefore, the Court of Appeals
concluded that the motorist was not prejudiced by the fact that the arresting
officer did not provide a written copy of the implied consent advisement form
to the motorist. Id. Thus, the Court of Appeals held that the circuit court
erred in reversing the hearing officer’s order. Id. Therefore, based
on Taylor, the Final Order and Decision of the DMVH hearing officer must
be reversed.
ORDER
It is hereby ordered that the DMVH’s Final Order and Decision
is REVERSED and the suspension of Respondent’s Driver’s License and
privilege to drive REINSTATED.
AND
IT IS SO ORDERED.
______________________________
January 17, 2007 John D. McLeod
Columbia, South Carolina Administrative
Law Judge
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