ORDERS:
ORDER
STATEMENT
OF THE CASE
This matter is an appeal by David A. Carroll (“Carroll” or
“Appellant”) 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) (Rev. 2006). Carroll claims that the DMVH erroneously upheld
his driver’s license suspension. 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 briefs, the DMVH’s Final
Order and Decision is affirmed as set forth below.
BACKGROUND
On May 28th, 2007, while on routine patrol in
Orangeburg County, South Carolina, Officer Anthony L. Stack (“Officer Stack”)
received a “BOLO” regarding a grey colored vehicle with North Carolina license
plates travelling on I-26. Dispatch indicated that the subject vehicle was
driven by a potential drunk driver because it was reportedly “all over the road”.
Soon thereafter, Officer Stack observed a vehicle fitting the above description
exiting the interstate onto U.S. 301. As he approached the vehicle, it
proceeded to leave the shoulder of the road and make a U-turn across both
northbound lanes of U.S. 301 onto U.S. 301 South. At that time, Officer Stack
identified Carroll as the driver of the vehicle and initiated a traffic stop.
As Officer Stack walked towards Carroll’s vehicle, he
immediately sensed a strong smell of alcohol. After summoning Carroll out of
his vehicle, Officer Stack asked him whether he had been drinking. Carroll
replied that he had not been drinking that day. By that time, two other
officers, Officer J.R. Chance (“Officer Chance”) and Officer Chandler arrived
to assist Officer Stack.
Upon arriving at the scene of the traffic stop, Officer
Chance noted a strong odor of alcohol emanating from Carroll’s person. While
Officer Stack conducted a search of Carroll’s vehicle, Officer Chance advised
Carroll of his Miranda rights and initiated a series of standardized field
sobriety tests. Carroll performed poorly on these tests. Furthermore, Officer
Stack’s search of Carroll’s vehicle produced an open container of alcohol. As a
result, Carroll was read his rights, placed under arrest for Driving Under the
Influence (“DUI”), and subsequently transported to the Orangeburg County Law
Enforcement Complex for a breathalyzer test.
Officer Stack administered the breathalyzer test. He is
a certified DataMaster operator. Prior to testing, Officer Stack read the
implied consent form to Carroll. Officer Stack also read Carroll his Miranda
rights and informed him that the testing would be videotaped. He cleared
Carroll’s mouth for foreign material, observed the 20 minute waiting period,
and administered the test. The test returned a blood alcohol level of point
twenty-five one-hundredths of one percent (.25%). Officer Stack then furnished
a copy of the implied consent form to Carroll and issued him a Notice of Suspension
pursuant to S.C. Code Ann. § 56-5-2951(A) (Rev. 2006).
Thereafter,
pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (Rev. 2006), Carroll filed a
request for an administrative hearing to challenge the suspension. An administrative
hearing was held on July 31, 2007. Officers Stack and Chance appeared at the
hearing on behalf of the Department, but were not assisted by counsel. Carroll
was represented by his attorney at the hearing.
At
the hearing on the matter, Officer Stack
admitted that he did not furnish a copy of the implied consent form to Carroll
prior to testing as required by § 56-5-2950 (R. at 17). Furthermore,
Carroll testified that he did not understand the ramifications of a failed
breath test and that he would have likely refused testing had he received the
implied consent form in writing (R. at 19-20).
Nevertheless,
on August 3, 2007, the DMVH hearing officer sustained Carroll’s suspension.
I conclude as a
matter of law that the Petitioners have met their burden of proof based on S.C.
Code Ann. § 56-5-2950 (2006). The Respondent was lawfully arrested for Driving
under the Influence; the Respondent was advised in writing of the appropriate
Implied Consent Advisement; the Respondent consented to the breath test and the
reported alcohol concentration was point twenty-five one-hundredths of one
percent (.25%); the DataMaster Operator was certified to run the breath test;
the test was conducted pursuant to the statute and SLED procedures…and the
machine was working properly. Accordingly, the relief requested by the
Respondent must be denied.
(R. at 35-36).
ISSUE
ON APPEAL
1. Did
the DMVH hearing officer err in sustaining the suspension of Appellant’s
driving privileges when the DataMaster operator failed to establish that the
properly advised Appellant of the rights enumerated in S.C. Code Ann. §
56-5-2950 prior to the request for a breath sample?
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 (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).
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 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
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) (Rev. 2006) provides, in pertinent
part:
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.
Section 56-5-2950(a) continues:
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.
Pursuant to S.C. Code
Ann. § 56-5-2951(A) (Rev.
2006),
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) (Rev. 2006) must be immediately suspended. However,
under S.C. Code Ann. § 56-5-2951(B)(2) (Rev. 2006), 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) (Rev.
2006),
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) refused to submit to a test pursuant to Section
56-5-2950; or (4) consented to taking a test pursuant to Section
56-5-2950, and the: (a) 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.
The Appellant contends that the DMVH hearing officer
erred in sustaining the suspension of his driving privileges when Officer Stack
failed to establish that the Appellant was properly advised of the rights
enumerated in § 56-5-2950. Specifically, the Appellant seeks rescission of his
suspension due to Officer Stack’s failure to provide a written copy of the
implied consent form to Carroll prior to the breath test.
In Taylor v. S.C. Dep’t. of Motor Vehicles, 368 S.C. 33, 627 S.E.2d 751, (Ct. App. 2006), a
motorist’s driver’s license was suspended after he refused to submit to a blood
test after being arrested for Driving Under the Influence. The arresting
officer read the implied consent advisement but neglected to provide a written
copy of the form to the motorist. In upholding the suspension, the Court
concluded that the motorist was not prejudiced by the fact that the arresting
officer did not provide a written copy of the advisement. Id. at 753. Importantly, the Court noted that a violation of
56-5-2950, without resulting prejudice, will not warrant the rescission of a
driver’s license suspension. Id. at 754.
Here, Officer Stack admits that he did not furnish a copy
of the implied consent form to Carroll prior to testing as required by §
56-5-2950 (R. at 17). Furthermore, Carroll testified that he did not understand
the ramifications of a failed breath test and that he would have likely refused
testing had he received the implied consent form in writing (R. at 19-20). For
the forgoing reasons, Carroll argues that he
was prejudiced in this matter and therefore Taylor is inapplicable to
the case sub judice. I disagree.
Carroll
argues that he would have likely refused testing had he been provided a
written copy of the implied consent form prior to testing. Carroll maintains
this position notwithstanding the fact that his license would have been automatically
suspended under §56-5-2951 if he refused to submit to a breathalyzer test.
This, coupled with the fact that Carroll testified that he understood his
implied consent rights prior to testing (R. at 20) and with the fact that he
subsequently signed a copy of the implied consent form (R. at 48), leads this
Court to the conclusion that substantial evidence supports the DMVH hearing
officer’s inference that Carroll was not prejudiced in this matter.
Accordingly,
I find that the DMVH hearing officer’s Final Order and Decision must be
affirmed.
ORDER
It
is hereby ordered that the DMVH’s Final Order and Decision is AFFIRMED and
the Department’s suspension of Carroll’s driver’s license is upheld.
AND IT IS SO ORDERED.
______________________________
John D. McLeod
Administrative
Law Judge
March 5, 2008
Columbia, South Carolina
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