ORDERS:
ORDER
SCDL Number: 004552540
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”) issued August 8, 2006. 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 Department contends
that the DMVH hearing officer erroneously rescinded the driver’s license
suspension of Respondent Jerry Stevens (“Stevens”). The Administrative Law
Court (“ALC” or “Court”) has jurisdiction to review 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.
BACKGROUND
On
the evening of July 15, 2006, Trooper Gaskin, a South Carolina Highway Patrol
Officer, stopped Stevens after observing Stevens driving erratically.
Specifically, Stevens began veering left of the center line. Trooper Gaskin
activated his video camera and again noticed Stevens crossing the center line,
this time towards another vehicle. According to Trooper Gaskin, Stevens
smelled strongly of alcohol and had trouble retrieving his driver’s license,
vehicle registration, and insurance information. Stevens acknowledged that he
had been drinking but stated that he was only “buzzing.” Trooper Gaskin began
administering the field sobriety test, to which Stevens exhibited positive
characteristics of being under the influence of alcohol. However, due to the
limited space on the shoulder of the highway and Trooper Gaskin’s
safety-related concerns, Trooper Gaskin did not finish administering the field
sobriety test to Stevens. Therefore, Trooper Gaskin arrested Stevens and
transported him to the Lancaster County Sheriff’s Department for a breath/blood
test. Trooper Gaskin escorted Stevens to the datamaster room and read Stevens his
implied consent rights. Stevens acknowledged that he understood his implied
consent rights, but he refused to submit to a breath test and requested
additional sobriety tests. Based on this refusal, Stevens was issued a Notice
of Suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (2006).
Pursuant
to S.C. Code Ann. § 56-5-2951(B)(2) (2006), Stevens filed a request for an
administrative hearing to challenge the suspension. The DMVH held an administrative
hearing on August 8, 2006. At the hearing, Trooper Gaskin testified that Stevens
was read his implied consent rights. However, he did not testify, or present
any other evidence to show, that Stevens was given a tangible copy of the
implied consent advisement form. Stevens neither testified nor presented any
other evidence at the hearing.
On August 8, 2006, the DMVH hearing officer issued a Final
Order and Decision rescinding Stevens’s suspension. The DMVH hearing officer
found that “no testimony was offered that [Stevens] was advised in writing
prior to the test being offered.” The Department now appeals.
ISSUE ON APPEAL
1. Was
it error for the DMVH hearing officer to rescind Stevens’s suspension on the
ground that Trooper Gaskin failed to offer evidence to show that Stevens was advised
in writing of his 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 (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. 2006); see also S.C. Code Ann. § 56-5-2951(G) (Supp. 2006); 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) (Supp. 2006). See S.C. Code Ann. § 1-23-380(B) (Supp. 2006) (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) (Supp. 2006).
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
Summary
of Applicable Law
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.
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) (Supp. 2006).
Failure to Offer Evidence
to Show that
Implied Consent
Advisement Was Given in Writing
The
Department argues that Trooper Gaskin’s failure to offer evidence to show that Stevens
was advised in writing of his implied consent rights does not warrant a
rescission of Stevens’s suspension. In support of its argument, the Department
cites the recent decision of the Court of Appeals in Taylor v. S.C. Dep’t 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) 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, 562 S.E.2d 472 (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.
Here, the record clearly demonstrates that Stevens was orally
advised of his implied consent rights, and Stevens has not argued otherwise. Under Taylor, any failure by Trooper Gaskin to advise Stevens in writing of these rights does not warrant a rescission of Stevens’s suspension, since Stevens
has neither argued nor proven that he was prejudiced by such failure. In the
absence of such showing of prejudice, the DMVH hearing officer erred in rescinding
Stevens’s suspension based on Trooper Gaskin’s failure to offer evidence to
show that Stevens was advised in writing of his implied consent rights.
ORDER
IT
IS THEREFORE ORDERED that that the DMVH’s Final Order and Decision is REVERSED and the Department’s suspension of Stevens’s driver’s license is reinstated.
AND
IT IS SO ORDERED.
______________________________
JOHN
D. GEATHERS
Administrative
Law Judge
March 19, 2007
Columbia, South Carolina
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