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) (Supp. 2004). The Department claims that the
DMVH erroneously rescinded the suspension of Respondent’s driver’s license. 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 Department’s brief, the DMVH’s Final Order and Decision is reversed as set forth below.
BACKGROUND
On January 22, 2006, Deputy Bagwell of the Spartanburg
County Sheriff’s Department observed Respondent’s vehicle weave in its lane and
cross the lane divider. Deputy Bagwell initiated a traffic stop. While
speaking with Respondent, Deputy Bagwell smelled alcohol on Respondent’s breath
and noticed that Respondent appeared “very lethargic.” Deputy Bagwell asked Respondent
to complete three field sobriety tests. Based on Respondent’s performance on
the field sobriety tests, Deputy Bagwell concluded that Respondent was
impaired. Deputy Bagwell arrested Respondent for driving under the influence
(“DUI”) and transported him to the Spartanburg County Detention Facility for a
breath test. Respondent refused to submit to the test. Based on this refusal,
Deputy Bagwell issued Respondent a Notice of Suspension pursuant to S.C. Code
Ann. § 56-5-2951(A) (Supp. 2004).
Thereafter,
pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (Supp. 2004), Respondent filed a
request for an administrative hearing to challenge the suspension. An administrative
hearing was held on February 21, 2006. At the hearing, Deputy Bagwell
testified, without objection, that he offered Respondent a breath test “in
accordance with State laws and SLED policies.” Deputy Bagwell did not offer
any further testimony or other evidence to demonstrate which specific State
laws and SLED policies were followed, and he was not cross-examined on this
issue. Later in the hearing, Respondent’s attorney asked Respondent, “[I]s the
officer’s testimony fairly correct as far as what happened that night?”
Respondent answered, “Yes, sir.” At no point during the hearing did Respondent
present any evidence to show that the breath test was improperly administered.
On March
22, 2006, the DMVH hearing officer issued a Final Order and Decision, in which he
found that the breath test was given in accordance with State law and SLED
policies, and that Respondent refused testing. Nevertheless, the hearing
officer rescinded Respondent’s suspension. In doing so, he explained that “[t]here
being no evidence corroborating Deputy Bagwell’s testimony concerning what
State Law and SLED Policies are, I conclude as a matter of law that the
Petitioner has failed to meet its burden of proof.” The Department now
appeals.
ISSUE
ON APPEAL
1. Was
it error for the DMVH hearing officer to rescind Respondent’s suspension on the
grounds given in his Final Order and Decision?
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 (Supp. 2006); 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. 2006).
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).
DISCUSSION
The DMVH hearing officer rescinded Respondent’s
suspension on the grounds that there was no evidence submitted “corroborating
Deputy Bagwell’s testimony concerning what State Law and SLED Policies are.” The
Department argues that it was error to rescind Respondent’s suspension on this
basis. I agree.
The scope of a 56-5-2951(B)(2) hearing must be limited
to whether the motorist: (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. 2004); S.C. Dep’t of Motor Vehicles v. Nelson,
364 S.C. 514, 526, 613 S.E.2d 544, 550 (Ct. App. 2005). Of these three issues,
it is clear that Deputy Bagwell’s testimony that the test was administered in accordance
with State laws and SLED policies was offered to affirmatively prove the second
issue. As SLED policy clearly indicates, one portion of the breath test
administration process is the provision of the implied consent rights
advisement. See SLED Implied Consent Policy 8.12.5(C)(1). Thus, the
real question presented by this appeal is whether the Department sufficiently established
that Respondent was advised in writing of the rights enumerated in Section 56-5-2950.
Based
on the record, it is clear that the Department met this burden. As noted, Deputy
Bagwell testified that he administered the breath test in accordance with State
laws and SLED policies. Both State law and SLED policy mandate that motorists who
are arrested for DUI be advised in writing of the rights set forth in Section
56-5-2950 prior to the administration of a breath test. For instance, Section
56-5-2950(a) expressly prohibits a breath test from being administered unless
the motorist is first advised in writing of the implied consent rights set
forth therein. Moreover, SLED Implied Consent Policy 8.12.5(D)(2) requires
that SLED’s “Driving Under the Influence Advisement,” which sets forth the
rights enumerated in Section 56-5-2950, be read to motorists who are given breath tests for DUI violations. In
addition, SLED Implied Consent Policy 8.12.5(E)(1) makes clear that “[t]he
advisement process consists of the officer reading any applicable advisements and
furnishing the subject a copy.” (emphasis added). Thus, the only
reasonable conclusion to draw from Deputy Bagwell’s testimony is that Respondent
was advised in writing of the rights enumerated in Section 56-5-2950.
While it is true that the Department failed to offer
corroborating evidence to show that Deputy Bagwell administered the breath test
in accordance with State laws and SLED policies, such failure did not mandate
the rescission of Respondent’s suspension. Deputy Bagwell’s testimony on this
matter was uncontradicted, and he was not cross-examined on this issue. See, e.g., Elwood Constr. Co. v. Richards, 265 S.C. 228, 234, 217
S.E.2d 769, 771 (1975) (“[W]hile it is true that the court does not always have
to accept uncontradicted evidence as establishing the truth, the same should be
accepted unless there is reason for disbelief.”); Cheatham v. Gregory,
313 S.E.2d 368, 370 (Va. 1984) (“A trier of fact must determine the weight of
the testimony and the credibility of witnesses, but may not arbitrarily
disregard uncontradicted evidence of unimpeached witnesses which is not
inherently incredible and not inconsistent with facts in the record . . .”); see
also Mackey v. Montrym, 443 U.S. 1, 14 (1979) (noting, in a case
involving Massachusetts’ implied consent law, that, because law enforcement
officers are personally subject to criminal penalties for willful
misrepresentation of the facts, they have “every incentive to ascertain
accurately and truthfully report the facts”). Moreover, Deputy Bagwell’s
testimony was bolstered by the fact that Respondent agreed that Deputy
Bagwell’s testimony was “fairly correct” with respect to what happened on the
night of Respondent’s arrest. Finally, because Deputy Bagwell testified that
he was certified by the State to administer breath tests, it can be assumed
that he was familiar with State laws and SLED policies outlining the proper
procedure for administering breath tests. Thus, the Department’s failure to
introduce corroborating evidence to show that Deputy Bagwell administered the
breath test in accordance with State laws and SLED policies did not mandate the
rescission of Respondent’s suspension.
Furthermore, the fact that Deputy Bagwell did not
specifically testify as to each and every State law and SLED policy that he
followed in administering the breath test to Respondent also did not mandate
the rescission of Respondent’s suspension. The Department is not required, in
its case in chief, to anticipate and address every conceivable argument for
rescission that a motorist might raise. See State v. Bacote, 331
S.C. 328, 333, 503 S.E.2d 161, 164 (1998) (stating that an implied consent
hearing “should be a summary administrative proceeding designed to handle
license revocation matters quickly”). Here, Respondent had the opportunity,
through cross-examination, to elicit further testimony from Deputy Bagwell
regarding the specific State laws and SLED policies that he followed in
administering the breath test to Respondent. However, Respondent chose not to
utilize this opportunity. Therefore, the lack of specificity in Deputy Bagwell’s
testimony did not mandate the rescission of Respondent’s suspension.
ORDER
It
is hereby ordered that the DMVH’s Final Order and Decision is REVERSED and the
Department’s suspension of Respondent’s driver’s license is reinstated.
AND IT IS SO ORDERED.
______________________________
John D. McLeod
Administrative
Law Judge
April 16, 2007
Columbia, South Carolina
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