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”) dated July 3, 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 The Department contends that the DMVH hearing officer erroneously rescinded the driver’s license suspension of Respondent Alan DeWayne Berry (“Berry”). 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 affirmed.
BACKGROUND
On April 30, 2006, Trooper Frederick D. Dale (“Trooper Dale”) of the South Carolina Highway Patrol arrested Berry for driving under the influence (“DUI”) and transported him to the Lexington County Detention Center for a breath test. Trooper Dale subsequently issued Berry a Notice of Suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (2006) for refusing to submit to breath testing.
Thereafter, pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (2006), Berry filed a request for an administrative hearing to challenge the suspension. An administrative hearing was held on June 6, 2006. On July 3, 2006, the DMVH hearing officer issued a Final Order and Decision, in which he rescinded Berry’s suspension. Specifically, the hearing officer concluded that “there was no testimony regarding what Rights were actually read to [Berry].” The Department now appeals.
ISSUE ON APPEAL
1. Was Berry properly 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).
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 the public highways of this State is not a right, but a mere privilege that is subject to reasonable regulations in the interests of public safety and welfare. State v. Newton, 274 S.C. 287, 294, 262 S.E.2d 906, 910 (1980); State v. Kerr, 330 S.C. 132, 149, 498 S.E.2d 212, 220-21 (Ct. App. 1998). This privilege is always subject to revocation or suspension for any cause relating to public safety. S.C. State Hwy. Dep’t v. Harbin, 226 S.C. 585, 595, 86 S.E.2d 466, 470 (1955). However, it cannot be revoked arbitrarily or capriciously. Id.
Consistent with these principles, the Legislature enacted S.C. Code Ann. § 56-5-2950 (2006) and S.C. Code Ann. § 56-5-2951 (2006). Section 56-5-2950 declares that a motorist arrested for DUI implicitly consents to a chemical test of his breath, blood or urine for the purpose of determining the presence of alcohol or drugs, and it requires that, at the direction of the arresting officer, a breath test be administered to a motorist so arrested. S.C. Code Ann. § 56-5-2950(a) (2006). Section 56-5-2951, in turn, mandates that the driver’s license of a motorist who refuses to submit to a test required by Section 56-5-2950 be immediately suspended. See S.C. Code Ann. § 56-5-2951(A) (2006). However, Section 56-5-2951 also grants motorists the right to request an administrative hearing to challenge such suspensions. S.C. Code Ann. § 56-5-2951(B)(2) (2006). If such a hearing is requested, the scope of the 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) (2006); see also Summersell v. S.C. Dep’t of Pub. Safety, 334 S.C. 357, 513 S.E.2d 619 (Ct. App. 1999) (discussing S.C. Code Ann. § 56-5-2950(e) (1991), a precursor to S.C. Code Ann. § 56-5-2951(F) (2006)), vacated in part on other grounds, 337 S.C. 19, 522 S.E.2d 144 (1999).
Implied Consent Rights Advisement
The Department argues that the DMVH hearing officer erred by rescinding Berry’s suspension on the grounds that there was no testimony regarding which rights were read to Berry. Berry, however, argues that, regardless of whether the grounds given by the hearing officer were erroneous, the test-site videotape, which was introduced after the hearing and made a part of the record, demonstrates that Berry was not properly advised of his implied consent rights.
Section 56-5-2950(a) provides in pertinent part:
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.
S.C. Code Ann. § 56-5-2950(a) (2006).
In this case, the videotape of the test-site shows that, while Trooper Dale did read the DUI implied consent advisement to Berry prior to Berry’s refusal, Trooper Dale did not give Berry a tangible copy of the implied consent advisement form until after Berry refused testing. Thus, Section 56-5-2950(a) was clearly violated.
Moreover, the Court of Appeals’ decision in Taylor v. S.C. Department of Motor Vehicles, 368 S.C. 33, 627 S.E.2d 751 (Ct. App. 2006) is distinguishable from this case. 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 DUI. Although the arresting officer read out loud 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. The Department thereafter appealed to the Court of Appeals, which reversed the circuit court. In doing so, the Court of Appeals stated:
Taylor argues he was not informed of the implied consent rights in writing as provided by section 56-5-2950. Taylor does not argue that he did not receive the implied consent rights, or that he would have provided a blood test if he had received the implied consent rights in writing. Therefore, Taylor was not prejudiced by the fact that Officer Hamm read the implied consent rights out loud. Because Taylor was not prejudiced, the trial court erred in reversing the administrative hearing officer’s order.
Taylor, 368 S.C. at 38, 627 S.E.2d at 754.
Here, the videotape shows that, at the same time Trooper Dale read the implied consent advisement to Berry, there was another law enforcement officer nearby speaking very loudly to a different motorist. Because of this other officer, it is very difficult to hear Trooper Dale orally advising Berry of his implied consent rights. Implicit in the directive that motorists be advised of their implied consent rights prior to testing is the requirement that the advisement be given in a clear and understandable manner. Thus, in this case, unlike in Taylor, there is evidence that Berry was not properly advised, either orally or in writing, of his implied consent rights prior to being offered the breath test. Therefore, I conclude that Berry suffered prejudice as a result of Trooper Dale’s failure to comply with Section 56-5-2950. Accordingly, the DMVH’s Final Order and Decision must be affirmed.
ORDER
IT IS THEREFORE ORDERED that the DMVH’s Final Order and Decision is AFFIRMED.
IT IS SO ORDERED.
______________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
Pursuant to S.C. Code Ann. § 1-23-380(B) (Supp. 2006), administrative law judges must conduct appellate review in the same manner prescribed in Section 1-23-380(A).
Blood and urine tests may be administered to motorists arrested for DUI only if certain other conditions are met. See S.C. Code Ann. § 56-5-2950(a) (2006).
The decision whether to reopen a record for additional evidence is within the trial court’s sound discretion and will not be disturbed on appeal absent an abuse of that discretion. Wright v. Strickland, 306 S.C. 187, 188, 410 S.E.2d 596, 597 (Ct. App. 1991). In this case, the Department has not, at any point, objected to the introduction of the videotape. Therefore, this Court will consider the videotape as a part of the record.
“[A] respondent — the ‘winner’ in the lower court — may raise on appeal any additional reasons the appellate court should affirm the lower court’s ruling, regardless of whether those reasons have been presented to or ruled on by the lower court.” I’On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 419, 526 S.E.2d 716, 723 (2000). |
