ORDERS:
SCDL Number: 007467083
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 March 22, 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) (Supp. 2004). The Department
contends that the DMVH hearing officer erroneously rescinded the driver’s
license suspension of Respondent Frederick Bauer (“Bauer”). The Administrative Law Court (“ALC”) 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 affirmed.
BACKGROUND
On
February 4, 2006, Officer Shane Williams (“Officer Williams”) of the Port Royal
Police Department arrested Bauer for driving under the influence. He
transported Bauer to the Beaufort County Detention Center for a DataMaster
test.
Upon reaching the detention center, Officer Asia Webb (“Officer Webb”) of the Beaufort Police Department read Bauer his implied
consent rights. Bauer consented to a DataMaster test. Bauer’s breath sample
registered a blood alcohol concentration level of 0.27%.
Based on this result, Officer Webb issued Bauer a Notice of Suspension pursuant
to S.C. Code Ann. § 56-5-2951(A) (Supp. 2004).
Pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (Supp. 2004), Bauer
filed a request for an administrative hearing to challenge the suspension.
DMVH hearing officer, Kevin M. Patterson (“DHO Patterson”), held an
administrative hearing on March 22, 2006. At the onset of the hearing, DHO Patterson
asked Bauer’s attorney, “what issues are you contesting today?” Bauer’s
attorney indicated that that he was contesting “all the issues.” Thereafter,
Officers Williams and Webb testified. At no point during her testimony did Officer
Webb testify, or present any other evidence to show, that she was a certified
DataMaster operator. After Officer Webb testified, DHO Patterson asked Bauer’s
attorney if he wanted to proceed with cross-examination of Officer Webb. Bauer’s
attorney did not cross-examine Officer Webb, and Bauer’s attorney proceeded
with his closing statement. Bauer’s attorney then argued, among other things,
that Officer Webb failed to demonstrate that she was qualified to administer
the DataMaster test to Bauer.
On March 22, 2006, DHO Patterson issued a Final Order and
Decision rescinding Bauer’s suspension. DHO Patterson concluded that the
Department bore the burden of proof in the proceeding, and that the Department
failed to meet its burden. Specifically, DHO Patterson found that Officer Webb
failed to establish that she was a certified DataMaster operator and if the
DataMaster machine was working properly. DHO Patterson further concluded that
the Department failed to “present sufficient evidence of jurisdiction to the
lawfulness of [Bauer’s] detention.” The Department now appeals.
ISSUES
ON APPEAL
1. Did DHO
Patterson err when he concluded that the Department bore the burden of proof in
the underlying proceeding?
2. Did DHO
Patterson err when he rescinded Bauer’s suspension on the grounds that the
Department failed to establish that Officer Webb was a certified DataMaster
operator and if the DataMaster machine was working properly?
3. Did
DHO Patterson err when he concluded that the arresting officer failed to
present evidence demonstrating that he had jurisdiction to arrest Bauer for
driving under the influence?
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. 2005). 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, including
the ALC, 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 appellate review in the
same manner prescribed in Section 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).
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). 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)). 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
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) (Supp. 2004) provides that:
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.
Under
S.C. Code Ann. § 56-5-2951(A) (Supp. 2004), the license of a motorist who
registers an alcohol concentration of 0.15% or above on a test conducted
pursuant to Section 56-5-2950(a) must be immediately suspended. However, under
S.C. Code Ann. § 56-5-2951(B)(2) (Supp. 2004), a motorist who has his license
so suspended may request an administrative hearing to challenge the suspension.
If such a hearing is requested, then, pursuant to S.C. Code Ann. § 56-5-2951(F)
(Supp. 2004), 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; (3) consented to taking a test pursuant to
Section 56-5-2950, and: (a) the reported alcohol concentration at the time of
testing was fifteen one-hundredths of one percent or more; (b) the individual
who administered the test or took samples was qualified pursuant to Section
56-5-2950; (c) the tests administered and samples obtained were conducted
pursuant to Section 56-5-2950; and (d) the machine was working properly.
Burden
of Proof
The Department argues that DHO Patterson erroneously
determined that the Department bore the burden of proof in the underlying
proceeding. Specifically, the Department argues that the burden of proof
should have been imposed on Bauer since Section 56-5-2951(A) does not grant the
Department any discretion with respect to suspending a motorist’s license. The
Department further argues that the issues listed in Section 56-5-2951(F) are
the “motor vehicle hearings equivalent” to the grounds of appeal set forth in
Section 1-23-380. According to the Department, just as the burden of proof in
a Section 1-23-380 appeal is imposed on the party who initiated the appeal, the
burden of proof in a Section 56-5-2951(B)(2) hearing should similarly be
imposed on the party who initiated the hearing. Because the underlying Section
56-5-2951(B)(2) hearing was initiated by Bauer’s request for a hearing, the
Department claims that the burden of proof should have been imposed on him.
For
several reasons, I disagree with the Department. First of all, it does not appear
that the legislature intended for motorists to bear the burden of proof in
Section 56-5-2951(B)(2) proceedings. For instance, S.C. Code Ann. § 1-23-660 (Supp.
2005) specifically requires DMVH hearing officers to conduct their hearings in
accordance with the ALC’s rules of procedure. One of those rules, ALC Rule
29(B), expressly states: “In matters involving the assessment of civil
penalties, the imposition of sanctions, or the enforcement of
administrative orders, the agency shall have the burden of proof.” The South
Carolina Supreme Court has referred to an administrative suspension of a
motorist’s driver’s license as a “sanction.” See State v.
Price, 333 S.C. 267, 272, 510 S.E.2d 215, 218 (1998). Therefore, the fact
that the legislature required DMVH hearing officers to conduct their hearings
in accordance with the ALC’s rules of procedure demonstrates that the
legislature intended for the Department to bear the burden of proof in Section
56-5-2951(B)(2) proceedings.
While
it is true that the legislature did not grant the Department any discretion
with respect to suspending a motorist’s license pursuant to Section 56-5-2951,
this lack of discretion should not be construed as evidence that the
legislature intended to impose the burden of proof on motorists in Section
56-5-2951(B)(2) proceedings. Although there is a legislative presumption that
a Section 56-5-2951 suspension was correctly imposed in cases where the
suspension is not challenged, this legislative presumption disappears in cases where the suspension is challenged. For instance, pursuant to S.C. Code Ann. § 56-5-2951(B)(1) (Supp.
2004), a motorist who requests an administrative hearing to challenge a Section
56-5-2951 suspension can effectively stay his suspension by obtaining a temporary
alcohol restricted license. The temporary alcohol restricted license allows
the motorist to drive without any restrictive conditions pending the
outcome of the Section 56-5-2951(B)(2) hearing or the final decision or
disposition of the matter. S.C. Code Ann. § 56-5-2951(B)(1) (Supp. 2004).
Moreover, pursuant to Section 56-5-2951(F), if a motorist is not notified of
the date of his administrative hearing within thirty days after his request for
such a hearing is received, then the motorist’s license must be reinstated.
These two provisions clearly demonstrate that the legislative presumption of
correctness of a Section 56-5-2951 suspension does not apply in cases where the
suspension is challenged.
Second,
the Department’s argument that the issues listed in Section 56-5-2951(F) are
the “motor vehicle hearings equivalent” to the grounds of appeal set forth in
Section 1-23-380(A)(5) is unconvincing. Unlike Section 56-5-2951(F), Section
1-23-380(A)(5) does not apply to initial agency hearings; instead, it applies
to appeals of final agency decisions that are issued after an agency hearing is held. See S.C. Code Ann. § 1-23-380(A) (Supp.
2006). Therefore, these two provisions are clearly not comparable. For these
reasons, I find that it was not error for DHO Patterson to conclude that the
Department bore the burden of proof in the underlying proceeding.
The Department further argues, without any citation to
legal authority, that:
“[e]ven if the burden of
proof lies initially with the DMV, DMV submits that once a prima facie case for
the implied consent violation is made, the burden then shifts to the motorist
to demonstrate that an error was made. (which DMV submits is satisfied by the
Notice of Suspension itself), [sic].”
(Appellant’s Br. 7). This vague argument must be rejected. Because the
Department has not provided any argument or supporting authority for its claim,
it is deemed to have abandoned this issue. See First Sav. Bank v.
McLean, 314 S.C. 361, 363, 444 S.E.2d 513, 514 (1994) (holding that
appellant abandoned issue for which he failed to provide any argument or
supporting authority); Eaddy v. Smurfit-Stone Container Corp., 355 S.C.
154, 164, 584 S.E.2d 390, 396 (Ct. App. 2003) (“This court has noted that
short, conclusory statements made without supporting authority are deemed
abandoned on appeal and therefore not preserved for our review.”); Shapemasters
Golf Course Builders, Inc. v. Shapemasters, Inc., 360 S.C. 473, 480 n.4,
602 S.E.2d 83, 87 n.4 (Ct. App. 2004) (“It is not necessary for this court to
address Appellants’ remaining issues because Appellants fail to provide legal
authority to support their arguments.”). Therefore, the DMVH hearing officer’s
Final Order and Decision will not be reversed on this ground.
Lack
of Evidence that Agent Webb was DataMaster Certified
Next,
the Department argues that DHO Patterson erred when he rescinded Bauer’s
license on the grounds that the Department failed to establish that Officer
Webb was a certified DataMaster operator. Specifically, the Department argues
that “when given the opportunity to discover exactly what steps Officer Webb
may have taken and what procedures she may have followed, counsel for
Respondent failed to ask him [sic] a single question during cross-examination.”
Here,
at the beginning of the hearing, DHO Patterson asked Bauer’s attorney, “what
issues are you contesting today?” Bauer’s attorney responded to DHO Patterson
by indicating that he was contesting “[a]ll of them.” Based on this exchange,
it is clear that Bauer did raise the issue of whether Officer Webb was a
certified DataMaster operator. Further, the Department did not submit any
proof to show that: (1) the person who administered the test was qualified; or,
(2) the DataMaster machine was working properly. See State v. Jansen, 305 S.C. 320, 322, 408 S.E.2d 235,
237 (1991) (stating that prior to admitting evidence of the results of a
breathalyzer test, the state “must” lay a foundation for such evidence
by proving, among other things, that the machine was in proper working order at
the time of the test, and that the test was administered by a qualified person)
(emphasis added). Therefore, DHO Patterson plainly did not commit error with
respect to this issue.
Accordingly,
in light of the complete lack of evidence in the record regarding the
qualifications of Officer Webb to administer the DataMaster test to Bauer and
if the DataMaster machine was working properly, DHO Patterson’s decision to
rescind the suspension of Bauer’s driver’s license did not constitute error.
ORDER
IT IS THEREFORE ORDERED that the DMVH’s Final Order
and Decision is affirmed.
AND
IT IS SO ORDERED.
______________________________
JOHN
D. GEATHERS
Administrative
Law Judge
1205 Pendleton Street, Suite 224
Columbia, South Carolina 29201-3731
May 16, 2007
Columbia, South Carolina
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