South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Donnie Way vs. SCDMV

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Appellant:
Donnie Way

Respondent:
South Carolina Department of Motor Vehicles
 
DOCKET NUMBER:
06-ALJ-21-0635-AP

APPEARANCES:
n/a
 

ORDERS:

ORDER OF REMAND
SCDL Number: 004869884

This matter is an appeal by Donnie Way (“Way”) from a Final Order and Decision of the South Carolina Division of Motor Vehicle Hearings (“DMVH”) following an administrative hearing held pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (2006). The Administrative Law Court (“ALC”) has jurisdiction to hear this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2006). Upon consideration of the briefs, the court remands this matter to DMVH for further proceedings pursuant to S.C. Code Ann. § 1-23-380(A)(4), (5) (Supp. 2006).

On April 9, 2006, Officer G.T. Levine of the South Carolina Highway Patrol arrested Way for driving under the influence and transported Way to the Richland County Detention Center for a breath test. Upon reaching the Richland County Detention Center, Officer Levine placed a videotape into the DataMaster machine, read Way the implied consent advisement form, and gave him a copy of the form. Based on Way’s refusal to blow into the machine, Officer Levine issued him a written Notice of Suspension pursuant to Section 56-5-2951(A).

Thereafter, pursuant to Section 56-5-2951(B)(2), Way filed a request for an administrative hearing to challenge the suspension. An administrative hearing was held on June 6, 2006. After the close of evidence, during closing remarks, the DMVH Hearing Officer permitted Levine to introduce the DataMaster videotape into evidence. The tape was not
reviewed during the hearing. Because it was admitted after the presentation of evidence, Way had no opportunity to cross-examine Levine or call other witnesses regarding the videotape. Way therefore requested ten days to review the videotape and submit a response.

Way submitted a letter on June 15, 2006 raising additional defenses based upon the videotape.[1] Although the DMVH Hearing Officer indicated he had considered the videotape in rendering his decision, it was not included in the Record on Appeal and the Hearing Officer did not rule on Way’s arguments based upon the videotape. Accordingly, the court finds that this matter should be remanded for a ruling on the issues raised by the Way as a result of the introduction of the videotape into evidence during closing statements. The DMVH Hearing Officer is directed to conduct whatever further proceedings, if any, he deems necessary to rule on those issues.

IT IS SO ORDERED.

______________________________

PAIGE J. GOSSETT

Administrative Law Judge

October 25, 2007

Columbia, South Carolina


[1] The court observes that had the videotape been admitted into evidence and reviewed during the hearing, Way would have had the opportunity to raise these defenses during closing statements. As it was, Way promptly raised these issues to the Hearing Officer via post-hearing letter. Therefore, the court rejects the Department’s contention that the issues are not preserved for review. The court further observes that in the instant appeal, Way did not appeal the admission of the videotape into evidence. Accordingly, the Hearing Officer’s ruling admitting the tape into evidence is the law of the case. See Resolution Trust Corp. v. Eagle Lake & Golf Condominiums, 310 S.C. 473, 475, 427 S.E.2d 646, 648 (1993) (“The trial judge’s procedural ruling is the law of the case since it has not been appealed.”); see also Erickson v. Jones St. Publishers, 368 S.C. 444, 476, 629 S.E.2d 653, 670 (2006); Anderson v. Short, 323 S.C. 522, 525, 476 S.E.2d 475, 477 (1996); Buckner v. Preferred Mut. Ins. Co., 255 S.C. 159, 160-61, 177 S.E.2d 544, 544 (1970).

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