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) (2006). The Department contends that the DMVH Hearing Officer was in error by rescinding the Driving Under the Influence (“DUI”) suspension of David Harrison Porter (“Respondent”). The Administrative Law Court (“ALC” or “Court”) has jurisdiction to hear this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2007).
The issues on appeal as stated in Appellant’s Brief are:
1. DID THE HEARING OFFICER ERR IN DISMISSING THE CASE FOR FAILURE TO COMPLY WITH A SUBPOENA?
2. DID THE HEARING OFFICER ERR IN DISMISSING THE CASE FOR FAILURE TO COMPLY WITH SUBPOENA VOID FOR LACK OF SERVICE?
3. DID THE HEARING OFFICER ERR IN DISMISSING THE CASE FOR FAILURE TO COMPLY WITH A SUBPOENA WHEN THE APPROPRIATE ACTION WAS TO SEEK TO ENFORCE THE SUBPOENA OR SANCTION THE PARTY RATHER THAN DISMISSAL?
Actually, the case was not dismissed for any of the reasons set forth in the three issues forth above. Instead, evidence was suppressed for failure to comply with a subpoena requiring the production of a videotape and/or the oral order of the court at hearing requiring compliance with the subpoena within 48 hours.
Irrespective of the misnomer in the statement of issues, the issues are understood.
The subpoena in question was invalid for lack of proper service. This answers Issue 2 above and renders it unnecessary to address Issues 1 and 3 because both are dependent upon a valid subpoena.
However, that is not dispositive of the case. The Hearing Officer made a specific conclusion of law that Appellant failed to meet its burden of proof. Appellant did not raise this issue on appeal.
Accordingly, I affirm the decision of the Hearing Officer and uphold the rescission of the suspension of Respondent’s privilege to drive.
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. 2007). 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. 2007); 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. 2007). See S.C. Code Ann. § 1-23-380(B) (Supp. 2007) (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. 2007).
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, 276 S.C. at 136, 276 S.E.2d 304, 307. 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.
For convenience, all references hereinafter to page and line of the transcript of hearing held August 7, 2008, will use only numbers, in parenthesis, separated by a colon.
FACTUAL AND PERTINENT PROCEDURAL HISTORY
On June 17, 2007, at about 2:20 AM, Trooper D.C. May of the South Carolina Highway Patrol (“Trooper”) observed the small white car driven by Respondent Porter traveling at a speed higher than the posted limit of 35 miles per hour which radar confirmed to be 64 miles per hour or 29 miles per hour above the posted limit.
Trooper turned on his blue light and stopped Respondent. Upon approaching the car, Trooper detected an odor of alcohol coming from within the car and from Mr. Porter and his breath. Trooper had Mr. Porter exit the car and asked him about the alcohol, advised him of his Miranda rights and submitted him to some field sobriety tests.
If there were any responses by Mr. Porter to the questions or if there were results of the sobriety tests, they do not appear in the record.
Trooper transported Mr. Porter to the detention center where his implied consent rights were explained to him and he indicated that he understood them. Mr. Porter then refused to submit to the Datamaster test. His license was suspended for failure to take the test.
Respondent Porter timely requested a hearing on the suspension resulting from the refusal to take the Datamaster test. Hearing was held on August 7, 2007, before a Hearing Officer of the Department of Motor Vehicle Hearings. Respondent was present with his attorney but did not testify.
Prior to the hearing, Respondent’s attorney mailed a subpoena duces tecum to Trooper by regular mail requiring the production of the in-car video of the arrest, the Datamaster videotape, the Datamaster ticket and the implied consent form.
Trooper failed to produce the material requested.
However, it became apparent at the hearing that the in-car video of the arrest was the only item then sought. (7:20-25 and 8:1). This was confirmed by the Final Order and Decision at page 2, paragraph 2: “I rule that the contents of the in-car videotape be suppressed due to the officer’s failure to comply with my directions to give the Respondent a copy of the in-car videotape within 48 hours of the hearing.”
Prior to the taking of any sworn testimony at the hearing, Respondent’s counsel moved to “suppress any testimony in the case” based on “lack of discovery being given to us in a timely fashion pursuant to the subpoena”. (3:17-19).
The Hearing Officer noted on page 2, paragraph 2 of the Final Order and Decision that the subpoena was not served in accord with SCDMVH Rule 12 (A) which requires service of subpoenas either by personal service or by certified mail, return receipt requested.
Trooper was not contradicted when he testified under oath that he had not received the subpoena. (5:21-25).
The subpoena had been sent to the wrong address. Id. at (7:l3-16).
The Hearing Officer responded by requiring Trooper to comply with the subpoena within 48 hours. (8:16-22).
The Final Order states, on page two (2), paragraph two (2), that the Court had also required Trooper to furnish his correct address within 48 hours and that “again he failed to comply”. There was some discussion of the address, but it was an informal request which made no mention of a 48 hour deadline. (9:l4-16).
The Hearing Officer cautioned Trooper that if he failed to comply with the subpoena, then anything on the in-car video could be suppressed and not considered. (8:16-22).
Trooper then testified, without objection, about the arrest and refusal. (11:24 to 13:7).
The hearing concluded without the Hearing Officer having ruled on the motion to suppress by Respondent’s counsel.
On August 13, 2007, subsequent to the hearing, Respondent’s attorney served a written “Motion to Suppress Subpoenaed Documents and Videotapes” on Trooper. This was notwithstanding the statement on the record by Respondent’s counsel that only the in-car video was in issue. This motion was not served on SCDMV, which a party to this proceeding. There was nothing in the record to indicate that the Motion to Suppress Subpoenaed Documents and Videotapes was ever heard. The motion was not supported by any affidavit.
It must be supposed that the portion of the Final Order and Decision on page 2 headed “Motion to Suppress and Suppression of Evidence” has its foundation in the oral motion to suppress which was made early in the hearing.
The Final Order and Decision of the Hearing Officer is dated September 6, 2007.
That Order, as stated above, on page 2, paragraph two 2, rules that only the content of the in-car video is suppressed by reason of Trooper’s failure to produce the same within 48 hours.
Then, in paragraph 11 of the Conclusions of Law in the same Order, the foregoing is contradicted by admitting material portions of the Trooper’s testimony and referring to suppression of the officer’s testimony instead of the suppression of the content of the video tape.
“ … I find and conclude that the arresting officer failed to prove whether the Respondent was lawfully arrested for driving under the influence. I conclude that there was evidence of a traffic violation for speeding 64 mph in a 35 mph speed zone. This gave the officer probable cause for a stop. The officer’s testimony was was that he observed the Respondent traveling at a speed greater than the posted speed limit and the Respondent’s vehicle speed was confirmed by radar. Then, he smelled an odor of alcoholic beverage emitting from Respondent’s vehicle, breath and person. All other testimony by the officer is suppressed. That being the case, the mere odor of alcohol alone does not constitute probable cause for arrest for driving under the influence. There was no testimony of any or (sic) physical attributes, such as, red or bloodshot eyes, slurred speech, or unsteadiness, which are indicative of a person driving under the influence. There being no evidence that the Respondent’s faculties to drive were materially and appreciable (sic) impaired due to the influence of alcohol, I conclude that the suspension can not stand pursuant to S.C. Code Ann. §56-5-2951(F). …
I conclude as a matter of law that the Petitioner failed to meet its burden of proof. …”.
LAW/ANALYSIS
1. Validity of the subpoena
The threshold question is whether the subpoena was valid. The answer is that it was not valid and that any action taken by the Hearing Officer which was based on its supposed validity, was also invalid (i.e., the imposition of the 48 hour deadline and the suppression of evidence).
The subpoena was invalid for two separate and distinct reasons. First, Rule 12 (A) of the DMVH Rules of Procedure provides:
Subpoenas by or on behalf of any party shall be issued in blank by the Division. The party requesting the subpoena shall complete the form and return the completed form to the Division for signature before service, and shall file a copy of the subpoena and the return of service with the Division upon service. An attorney authorized to practice before the courts of the State of South Carolina, as an officer of the court, may also issue and sign a subpoena on behalf of the Division. The attorney shall complete the form before service and file a copy of the subpoena and the return of service with the Division upon service. … A subpoena may be served on any law enforcement officer personally or by serving the officer or his law enforcement agency by certified mail, return receipt requested. …
ALC Rule 12 (A) (2007).
No case has been found interpreting the provisions of ALC Rule 12 (A). Consequently guidance is obtained through reference to cases involving the service of process. “Although a subpoena has been referred to by, or included within the term ‘summons,’ and every subpoena is, in some sense, a summons, the two words ordinarily refer to distinct writs or processes. 98 C.J.S. Witnesses § 21 (2002) (emphasis supplied).
Moreover, “Legal Process” has been used as equivalent to “lawful process” and has been defined as: “process that is not merely fair on its face, but in fact valid. But properly it means a summons, writ, warrant, mandate, or other process issuing from a court.” Black’s Law Dictionary 1204 (West, 6th ed., 1991) (emphasis supplied).
This supports the rationale of applying case law involving service of process generally. “The rules of civil procedure with respect to service of process are mandatory, and strictest and most exacting compliance with them is required when service is by mail. A failure to comply with them renders any attempted service void.” Roche v. Young Bros., Inc., 313 S.C. 356, 437 S.E.2d 560 (Ct. App. 1993), rev’d in part on other grounds, 504 S.E.2d 156 (S.C. 1998)
Rule 12 of the Rules of Procedure for the Division of Motor Vehicle Hearings (April 30, 2007) governing service of subpoenas is substantially different from ALC Rule, because the latter allows service by regular mail of virtually all documents filed with the Court while the DMVH Rules specify service in person or by certified mail, return receipt requested.
It is undisputed that the subpoena was mailed by regular mail, not by certified mail, return receipt requested. (10:9-12.) That being so, there could not have been a return receipt filed with DMVH as required by Rule. Thus, for failure to serve by certified mail, return receipt requested, and then to make the necessary filing, the subpoena was invalid.
2. Assertions by Respondent
Respondent asserts that the issue is not dismissal as a result of failure to comply with the subpoena but rather the failure to comply with the verbal Order of the Hearing Officer.
The record reveals the following comment by the Hearing Officer: “All right. This is the ruling that I will make that you are now being made aware of this subpoena… You have forty eight hours to comply with the subpoena….” (7:11-16 ) (emphasis supplied).
And again, “If you fail to comply with the subpoena which specifically with the in car video (sic), then anything---your testimony that you’re going to testify to that, this video has on it will … can be suppressed and not considered.”(8:17-22) (emphasis supplied).
The Hearing Officer attempted to resurrect a subpoena invalid for lack of proper service by making the Trooper ”aware” of the subpoena on the record and then allowing only forty-eight (48) hours for compliance with the subpoena.
The Trooper was getting notice of the subpoena for the first time and under DMVH Rule 12 (A), he would have had a minimum of ten (10) days notice prior to the hearing to produce the requested material. DMVH Rule 12 (A) provides:
For subpoenas compelling the production of documents or other tangible objects, the proponent of the subpoena must serve the subpoena at least ten days prior to the scheduled hearing date, and the person or agency served with the subpoena shall be required to produce the subpoenaed items a minimum of five days prior to the scheduled hearing date unless otherwise ordered by the hearing officer for good cause shown.
DMVH Rule 12 (A) (emphasis supplied).
The record does not reveal any “good cause shown” for the shortened time for compliance with the subpoena.
Arbitrary defined is “[w]ithout adequate determining principle; not founded in the nature of things; nonrational; not done or acting according to reason or judgment; depending on the will alone; … [w]ithout fair, solid and substantial cause based upon law….” Black’s Law Dictionary 104 (West, 6th ed., 1991).
In the face of DMVH Rule 12 (A) requiring ten days notice where the subpoena sought production of documents or tangible objects, it was clearly arbitrary to impose a deadline of 48 hours to produce without assigning some compelling reason for it.
Having found the subpoena invalid and that the time limit imposed by the HO was arbitrary, it is immaterial whether the evidence was suppressed because of failure to comply with the subpoena or, (as argued by Respondent herein) violation of the verbal order of the Hearing Officer to produce the in-car video tape within forty eight hours. In either case, suppression was error.
All three issues posed by the Appellant are answered in the affirmative by the above. The subpoena was invalid as were any actions based on the assumption of its validity.
However, that does not dispose of the case. The Final Order and Decision goes on to rule that Appellant failed to meet its burden of proof. Appellant did not appeal this ruling.
ALC Rule 37 and SCACR Rule 208(b)(B) are identical and clear about the statement of issues on appeal:
Statement of Issues on Appeal. A statement of each of the issues presented for review. The statement shall be concise and direct as to each issue, and may be stated in question form. … Ordinarily, no point will be considered which is not set forth in the statement of issues on appeal.
ALC Rule 37 (2007).
Since Appellant did not appeal the ruling of the court that Appellant had failed to meet its burden of proof, the ruling became the law of the case. “A portion of a judgment that is not appealed presents no issue for determination by the reviewing court and constitutes, rightly or wrongly, the law of the case.” See McCall v. State farm Mut. Auto Ins. Co., 359 S.C. 372, 597 S.E.2d 181 (Ct. App. 2004); Austin v. Specialty Transp. Serv., 358 S.C. 298, 594 S.E.2d 867 (Ct. App. 2004). “This court may affirm a trial judge's decision on any ground appearing in the record and, hence, may affirm a trial judge's correct result even though he may have erred on some other ground.” Watkins Motor Lines Inc. v. Span-America Medical Systems, Inc., 296 S.C. 175, 371 S.E.2d 2 (Ct. App. 1988); Potomac Leasing Co. v. Otts Market, Inc., 292 S.C. 603, 358 S.E.2d 154 (Ct. App. 1987).
ADDITIONAL SUSTAINING GROUND
The additional sustaining ground advanced by Respondent is that even if the suppressed testimony was admitted, it was insufficient to sustain a finding of probable cause for arrest for DUI.
I decline to consider the additional sustaining ground advanced by Respondent. “It is within the appellate court’s discretion whether to address any additional sustaining grounds.” I’On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 526 S.E.2d 716 (2000).
CONCLUSION
For the foregoing reasons the Final Order and Decision of the Hearing Officer dated September 6, 2007, is AFFIRMED as to result.
AND IT IS SO ORDERED.
_____________________________
January 17, 2008 John D. McLeod, Judge
Columbia, S.C. S.C. Administrative Law Court
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