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 Department claims that the DMVH
erroneously rescinded the driver’s license suspension of Respondent Ronald
Vignone (“Vignone”). 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 April 1, 2006, while traveling on Savannah Highway, Officer
Douglas Heffner (“Officer Heffner”) of the Charleston County Sheriff’s
Department observed Vignone’s vehicle move quickly across two lanes of traffic without
signaling. He then witnessed Vignone’s vehicle “lurch” into an adjoining lane,
causing another vehicle to swerve to avoid a collision with Vignone’s vehicle.
Officer Heffner initiated a traffic stop. While speaking with Vignone, Officer
Heffner noticed that Vignone’s movements were sluggish and that his eyes were
“droopy.” He asked Vignone to step out of his vehicle. As he exited his
vehicle, Vignone stumbled. Vignone smelled of alcohol. Officer Heffner asked Vignone
to perform several field sobriety tests. Vignone performed poorly on the
tests. Officer Heffner arrested Vignone for driving under the influence
(“DUI”) and transported him to the Charleston County Detention Center for a breath test. Vignone refused to submit to the breath test. Based on this
refusal, Officer Heffner issued Vignone a Notice of Suspension pursuant to S.C.
Code Ann. § 56-5-2951(A) (2006).
Thereafter,
pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (2006), Vignone filed a request
for an administrative hearing to challenge the suspension. An administrative
hearing was held on May 9, 2006. Officer Heffner appeared at the hearing on
behalf of the Department, but was not assisted by counsel. Vignone was
represented by his attorney at the hearing, but did not personally appear.
At
the hearing, Officer Heffner testified, without objection, that he offered
Vignone a breath test “in accordance with SLED policies.” He also introduced
into evidence a copy of his DataMaster certification card, as well as a completed
copy of the SLED-issued “Driving Under the Influence Advisement” form. On the advisement
form, above the line labeled “Subject’s Signature (Received Copy),” the word
“Refused” was written. The advisement form was signed by Officer Heffner. Vignone’s
attorney did not present any evidence at the hearing, and Officer Heffner was
not cross-examined.
On May
22, 2006, the DMVH hearing officer issued a Final Order and Decision, in which she
found that “Officer Heffner offered Respondent a breath test according to Sled
policies.” Nevertheless, the hearing officer rescinded Respondent’s suspension.
She explained her decision by stating:
I find that Officer
Heffner did not offer any testimony to show that Respondent was advised of his
Implied Consent Rights according to Section 56-5-2950 and Sled Policies and
procedures. I conclude as a matter of Law that 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 Vignone’s suspension on the
grounds that Officer Heffner failed to offer testimony to show that Vignone was
advised 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 (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).
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 by rescinding Vignone’s suspension on the grounds that Officer Heffner
failed to offer any testimony to show that Vignone was advised of his implied
consent rights. According to the Department, there is substantial evidence in
the record that demonstrates that Vignone was advised of his implied consent
rights. I agree.
Here,
Officer Heffner testified, and the DMVH hearing officer found, that the breath
test was offered in accordance with SLED policies. Importantly, SLED Implied
Consent Policy 8.12.5(D)(2) requires that SLED’s “Driving Under the Influence
Advisement” be read to motorists who are given breath tests for DUI
violations. Officer Heffner, a certified DataMaster operator, was undoubtedly
familiar with SLED Implied Consent Policy 8.12.5(D)(2). Therefore, contrary to
the DMVH hearing officer’s conclusion, Officer Heffner did indeed offer
testimony to show that Vignone was advised of his implied consent rights.
Moreover,
Officer Heffner also introduced a completed copy of the SLED-issued “Driving
Under the Influence Advisement” form as further proof that Vignone was advised
of his implied consent rights. According to the completed form, Vignone was offered
a copy of the form to sign, but refused to do so.
Based
on the foregoing evidence, which was not contradicted, I find that the DMVH
hearing officer erred by rescinding Vignone’s suspension on the grounds that Officer
Heffner failed to offer testimony to show that Vignone was advised of his
implied consent rights. Not only did Officer Heffner present testimony to
demonstrate that Vignone was advised of his implied consent rights, he also introduced
documentary evidence to show the same. Accordingly, the DMVH hearing officer’s
Final Order and Decision must be reversed.
ORDER
It
is hereby ordered that the DMVH’s Final Order and Decision is REVERSED and the
Department’s suspension of Vignone’s driver’s license is reinstated.
AND IT IS SO ORDERED.
______________________________
John D. McLeod
Administrative
Law Judge
April 18, 2007
Columbia, South Carolina
|
