ORDERS:
AMENDED 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 (2006
& Supp. 2006). The Department contends that the DMVH hearing officer erred
by rescinding the driver’s license suspension of Respondent Michael W. Tighe
(Tighe) on the grounds that law enforcement failed to comply with S.C. Code
Ann. § 56-5-2934 (2006). The Administrative Law Court (ALC or Court) has
jurisdiction to review this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp.
2007). Upon consideration of the briefs, the DMVH’s Final Order and Decision is
reversed.
BACKGROUND
On October 12, 2006, Officer
Christopher G. Price of the Columbia Police Department arrested Tighe for
driving under the influence (DUI). He transported Tighe to a detention center
for a DataMaster test. Tighe subsequently refused to submit to the DataMaster
test and was issued a Notice of Suspension pursuant to S.C. Code Ann. §
56-5-2951(A) (2006).
Thereafter, Tighe filed
a request with the DMVH for an administrative hearing to challenge the
suspension. An administrative hearing was held on November 8, 2006. Officer
Price appeared at the hearing, but was not assisted by counsel. Tighe appeared
at the hearing and was represented by his attorney.
At the hearing, Tighe’s
attorney asked Officer Price “other than Miranda, was there any other
advisement given [Tighe] at the time of arrest?” Officer Price replied, “No,
sir.” However, Officer Price also testified that, prior to requesting a breath
sample from Tighe, he gave Tighe a copy of the implied consent advisement and
that he read the implied consent advisement “in its entirety” to Tighe. In his
closing statement, Tighe’s attorney argued for the rescission of Tighe’s
suspension on the grounds that Officer Price failed to give Tighe the
“abbreviated implied consent advisement” required by Section 56-5-2934 “at the
time of [Tighe’s] arrest.”
On December 6, 2006,
the DMVH hearing officer issued a Final Order and Decision rescinding Tighe’s
suspension. Specifically, the hearing officer held in pertinent part:
There was no testimony of Petitioner’s witness advising
Respondent of the “Roadside D.U.I. Advisement.” Section 56-5-2934 requires the
reading of the right to a chemical test and the language is mandatory. It is
undisputed that Petitioner’s witness advised Respondent of the Advisement of
Implied Consent Rights while in the DataMaster room. . . . I conclude as a
matter of law that the investigating officer failed to satisfy all issues
within the scope of an implied consent refusal hearing.
The Department
now appeals.
ISSUES
ON APPEAL
1. Does the Department lack standing to bring this appeal?
2. Does the Record’s lack of conformity with ALC Rule 36(C) mandate
dismissal of the Department’s appeal?
3. Did the Department fail to preserve any issues for appeal?
4. Did the DMVH hearing officer err by rescinding Tighe’s suspension on the
grounds that Officer Price failed to advise Tighe of his Section 56-5-2934
rights at the location where Tighe was initially taken into custody?
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).
DISCUSSION
Implied
Consent Laws – Generally
The license to operate
a motor vehicle upon the public highways of this State is not a right, but a
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). 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 & Supp. 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).
However, Section 56-5-2950 also provides that, before any type of chemical test
is administered, the motorist must be 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).
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). Section 56-5-2951 nevertheless 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) (Supp. 2006).
Standing
As an initial matter,
Tighe argues that the Department lacks standing to appeal the DMVH hearing
officer’s decision in this matter.
As discussed below, I disagree.
“There is a strong
presumption in favor of judicial review of administrative actions, and
prohibitions against judicial review are to be narrowly construed.” 2 Am. Jur.
2d Administrative Law § 446 (2004). The presumption of judicial review
may be overcome by: (1) specific language; (2) specific legislative history
that is a reliable indicator of legislative intent; or (3) specific legislative
intent that is fairly discernible in the detail of the legislative scheme. Id. In the absence of statutory language expressly excluding review, a court
determines whether, and to what extent, the relevant statute precludes judicial
review by examining the structure and history of the statute to determine
whether the requisite legislative intent to bar judicial review is clearly
established. Id. at § 447.
With respect to
governmental entities, an analysis of standing must consider the following two
factors:
(1) the entity’s authority (and
restrictions on that authority) under relevant constitutional provisions,
statutes, regulations, and case law; and
(2) the nature of the interest asserted by the entity in support of
its standing.
Richard H. Seamon, Administrative
Agencies: General Concepts and Principles, South Carolina Administrative Practice & Procedure 80 (Randolph R. Lowell &
Stephen P. Bates eds., 2004).
Here, the statute at
issue, S.C. Code Ann. § 1-23-380(A) (Supp. 2007), provides in pertinent part:
A party who has exhausted all administrative remedies
available within the agency and who is aggrieved by a final decision in a
contested case is entitled to judicial review under this article, Article 1,
and Article 5.
Thus, to ascertain whether an
entity has standing to appeal under Section 1-23-380(A), a court must
determine: (1) whether the entity appealing was a party to the underlying
proceeding; and (2) whether the entity is in fact aggrieved, or adversely
affected, by the agency action. David E. Shipley, South Carolina Administrative Law 7-24 (2d. ed. 1989). Both of these requirements are
addressed below.
1.
Was the Department a “Party” to the DMVH Proceeding?
The APA defines the
term “party” as “each person or agency named or admitted as a party, or properly
seeking and entitled as of right to be admitted as a party.” S.C. Code Ann. §
1-23-310(5) (2005). In this case, the Department was clearly named as a party
to the DMVH proceeding. The Department was designated as a “Petitioner” in the
captions of both the DMVH’s Notice of Hearing and its Final Order and
Decision. Additionally, at the beginning of the DMVH hearing, the hearing
officer stated, “Let the record reflect that the Petitioners in this matter are
the Columbia Police Department and the South Carolina Department of Motor
Vehicles.” In fact, prior to this appeal, there is no evidence that Tighe ever
challenged the Department’s status as a party to the DMVH proceeding.
Moreover, it is
longstanding practice in administrative actions for the state agency that is
responsible for administering the law alleged to be violated to be named as a
party to the action. See, e.g., S.C. Dep’t of Natural Res. v.
Chesney, 06-ALJ-13-0599-CC (Admin. Law Ct. December 19, 2006); S.C.
Dep’t of Health and Envtl. Control v. Bellamy’s Cmty. Care Home,
02-ALJ-07-0123-CC (Admin. Law Ct. November 15, 2002); S.C. Dep’t of Revenue
v. Jewett, 00-ALJ-17-0432-CC (Admin. Law Ct. March 30, 2001); S.C. Dep’t
of Ins. v. Gainey, 98-ALJ-09-0278-CC (Admin. Law Ct. August 26, 1998).
Here, the Department is clearly charged with the duty of administering Section
56-5-2951. See S.C. Code Ann. § 56-5-2951(O) (2006) (stating that the
Department “must administer the provisions of this section”). The fact that
law enforcement agencies play a role in enforcing Section 56-5-2951 does not
mean that the Department should be excluded from party status in implied
consent hearings. For instance, the Department of Revenue is regularly named
as a party to beer and wine permit revocation hearings even though SLED assists
with the enforcement of beer and wine permit laws. See, e.g., S.C.
Dep’t of Revenue v. Duncan, 07-ALJ-17-0553-CC (Admin. Law Ct. February 4,
2008). Like the Department with respect to Section 56-5-2951, the Department
of Revenue is the state agency charged with the responsibility of “administering”
the beer and wine permit laws. See S.C. Code Ann. § 61-2-20 (Supp.
2007) (stating that the Department of Revenue “must administer the provisions
of this title”).
Furthermore, Tighe’s
argument that Section 1-23-660 demonstrates that “the legislature specifically
determined that the [Department] is not a party to the [DMVH] proceeding” is
unconvincing. Tighe’s argument is based on the following provisions of Section
1-23-660, which were added to Section 1-23-660 in June of 2006:
For purposes of this section, any law enforcement agency that
employs [an] officer who requested a breath test and any law enforcement agency
that employs a person who acted as a breath test operator resulting in a
suspension pursuant to Section 56-1-286 or 56-5-2951 is a party to the hearing
and shall be served with appropriate notice, afforded the opportunity to
request continuances and participate in the hearing, and provided a copy of all
orders issued in the action. Representatives of the Department of Motor
Vehicles are not required to appear at implied consent, habitual offender,
financial responsibility, or point suspension hearings.
S.C. Code Ann. § 1-23-660 (Supp.
2007).
In this Court’s view,
the fact that the Department, unlike applicable law enforcement agencies, is
not specifically mentioned as being a party to Section 56-5-2951 hearings does
not demonstrate legislative intent to exclude the Department from party
status. Although this Court is cognizant of the canon of statutory
construction, “expressio unius est exclusio alterius” (the express mention of one
thing excludes all others), the application of that canon here would mandate
the exclusion of Tighe himself from party status. Interpretation of the
statute in this manner would thus be contrary to the equally important rule of
statutory construction that the Court should reject a meaning that would lead
to an absurd result not intended by the legislature when construing a statute. Kiriakides v. United Artists Communications, Inc., 312 S.C. 271, 275,
440 S.E.2d 364, 366 (1994). Moreover, there exists another, more likely
explanation as to why Section 1-23-660 was amended in June of 2006 to make law
enforcement agencies parties to Section 56-1-286 and 56-5-2951 hearings. In
the first half of 2006, the ALC was inundated with appeals filed by the
Department in which the Department argued that the DMVH – and not the
Department – was required to notify applicable law enforcement officers of pending
Section 56-5-2951 hearings.
The legislature’s decision to make applicable law enforcement agencies parties
to Section 56-5-2951 proceedings resolved this issue, since S.C. Code Ann. §
1-23-320 clearly requires the DMVH to notify all parties of upcoming
hearings.
Similarly, the mere
fact that Section 1-23-660 states that “[r]epresentatives of the Department of
Motor Vehicles are not required to appear at implied consent, habitual
offender, financial responsibility, and point suspension hearings” does not
demonstrate legislative intent to exclude the Department from party status.
Stating that an entity is not required to perform a certain action is
simply not the same as stating that the entity is prohibited from
performing the action. Additionally, because ALC Rule 29(B) has long required
“the agency” to bear the burden of proof in enforcement actions, the
legislature undoubtedly intended for some state agency to be named as a
party to habitual offender, financial responsibility, and point suspension
hearings. If not the Department, then it is unclear which state agency the
legislature had in mind. Under Section 1-23-660, law enforcement agencies are
required to be named as parties to only Section 56-1-286 and 56-5-2951
hearings, which are implied consent hearings.
For these reasons, I
conclude that the Department was a “party” to the DMVH proceeding for the
purposes of Section 1-23-380(A).
2.
Was the Department “Aggrieved” by the DMVH’s Decision?
An “aggrieved party” is
“one who is injured in a legal sense or one who has suffered an injury to
person or property.” Ex parte Whetstone, 289 S.C. 580, 581, 347 S.E.2d
881, 882 (1986). “A party is aggrieved by a judgment or decree when it
operates on his or her rights of property or bears directly on his or her
interest.” Beaufort Realty Co. v. Beaufort County, 346 S.C. 298, 301,
551 S.E.2d 588, 589 (Ct. App. 2001).
Here, the Department is
expressly required, by statute, to suspend the driver’s license of a motorist
who refuses to submit to a properly-requested chemical test. See S.C.
Code Ann. § 56-5-2951(A) (2006) (“The Department of Motor Vehicles must suspend
the driver’s license, permit, or nonresident operating privilege of or deny the
issuance of a license or permit to a person who drives a motor vehicle and
refuses to submit to a test provided for in Section 56-5-2950 . . .”) (emphasis
added). In cases where the DMVH erroneously rescinds a motorist’s Section
56-5-2951(A) suspension, the Department’s statutory duty is adversely affected
and the Department is injured “in a legal sense.” See Parker v.
Brown, 195 S.C. 35, 48-49, 10 S.E.2d 625, 630-31 (1940) (explaining that
there is an injury “in a legal sense” where a legal right or legal duty is
violated).
Moreover, the
Department has a special interest in maintaining the safety of South Carolina’s public roads, and this interest is directly advanced by suspending the licenses of those who
refuse to submit to properly-requested chemical tests. Importantly, our Courts have
implicitly recognized this special interest by allowing the Department to
appeal adverse circuit court decisions in implied consent and other license
suspension cases. See Taylor v. S.C. Dep’t of Motor Vehicles,
368 S.C. 33, 627 S.E.2d 751 (Ct. App. 2006), cert. granted, Shearouse
Adv. Sh. No. 35 (2007); S.C. Dep’t of Motor Vehicles v. Nelson, 364 S.C.
514, 613 S.E.2d 544 (Ct. App. 2005); Dismuke v. S.C. Dep’t of Motor Vehicles,
371 S.C. 418, 639 S.E.2d 151 (Ct. App. 2006).
For these reasons, I
conclude that the Department is “aggrieved” by erroneous decisions of the DMVH
in implied consent cases. Tighe’s argument that the Department is simply
performing a “ministerial function” with respect to Section 56-5-2951
suspensions and thus is not aggrieved by erroneous DMVH decisions is
unpersuasive. While it is true that the Department initially has no discretion
with respect to suspending a motorist’s license pursuant to Section 56-5-2951,
when a hearing is requested, the propriety of the Section 56-5-2951 suspension
must be established. And, as discussed above, the Department has a direct
interest in the outcome of the hearing.
Furthermore, the main
case that Tighe cites in support of his argument that the Department is not
aggrieved, Director, Office of Workers’ Comp. Programs, Dep’t of Labor v.
Newport News Shipbuilding and Dry Dock Co., 514 U.S. 122 (1995), is
inapposite. In that case, the Director of the Labor Department’s Office of
Workers’ Compensation Programs (Director) petitioned the Court of Appeals for
review of a decision made by the Labor Department’s Benefits Review Board (Board)
that denied an employee full-disability compensation under the Longshore and Harbor
Workers’ Compensation Act (LHWCA). The employee did not seek review of the
Board’s decision and expressly declined to intervene on his own behalf. The
Supreme Court found that the Director did not constitute a “person adversely
affected or aggrieved” under the LHWCA and therefore lacked standing to bring
her appeal. Newport News is
distinguishable from the present case in several regards. First, in Newport News, the Director and the Board were both part of the Department of Labor. Id. at 125.
Thus, the Director was seeking judicial review of a decision made by another
division of her own agency. In the present case, however, the Department and
the DMVH are not part of the same agency. Rather, the Department is its own
agency, and the DMVH is a division of the ALC.
Thus, unlike the situation in Newport News, this Court is not being
asked to settle an intra-agency dispute.
Second, in Newport News, the Supreme Court acknowledged that Congress could have conferred
standing on the Director without infringing Article III of the Constitution, but it ultimately concluded that
Congress did not do so. Importantly, the Court’s decision was clearly
influenced by the fact that agencies are expressly excluded from the definition
of “person” in 5 U.S.C. § 551(2) of the federal Administrative Procedure Act,
and therefore do not generally constitute a “person adversely affected or
aggrieved” under that Act. See id. at 129; see also id. at 138-39 (Ginsburg, J., concurring) (explaining that the phrase “person
adversely affected or aggrieved” ordinarily disqualifies agencies acting in a
governmental capacity from petitioning for court review). Here, in contrast, South Carolina’s
APA grants the right to judicial review to parties that are aggrieved by
an agency’s decision, and the Department was a named party to the DMVH
proceeding. See S.C. Code Ann. § 1-23-380(A) (Supp. 2007). Therefore, a reasonable
construction of our laws is that the Department should likewise be permitted to
appeal adverse DMVH decisions to this Court.
Finally, in Newport News, the Director failed to explain how an erroneous Board ruling
interfered with any of her specific statutory duties. See id. at 131 (“The Director does not assert that the Board’s decision hampers her
performance of [her] express statutory responsibilities.”); id. at 133
(“The Director fails, however, to identify any specific statutory duties that
an erroneous Board ruling interferes with . . .”). The Supreme Court therefore
concluded that the Director failed to establish “a clear and distinctive
responsibility” that would “overcome the universal assumption that ‘person adversely
affected or aggrieved’ leaves private interests (even those favored by public
policy) to be litigated by private parties.” Id. at 132. Here,
however, an erroneous DMVH decision clearly interferes with the Department’s
express statutory duty to suspend the driver’s licenses of those motorists who
refuse to submit to properly-requested chemical tests. See S.C. Code
Ann. § 56-5-2951(A) (2006). Moreover, the present case is not one in which a
government agency is seeking to advance a private party’s interests. Rather,
the interest the Department seeks to advance is purely a public one.
For these reasons, I
conclude that Newport News is distinguishable from the present case and
that the Department has standing to bring this appeal.
Organization
and Numbering of Pages of the Record
Tighe argues that the
pages of the Record are not organized or numbered in the manner required by ALC
Rule 36(C) and that the Department’s appeal should therefore be dismissed. I
disagree.
The Record must allow
for meaningful review of the issues on appeal. See State v. Ladson, 373 S.C. 320, 644 S.E.2d 271 (Ct. App. 2007). Here, Tighe has
not argued – and it does not appear to the Court – that any part of the Record
is missing. Moreover, because the materials in the Record are organized in an
orderly fashion pursuant to an index, relevant items can easily be found.
Therefore, I conclude that the Record allows for a meaningful review of the
issues on appeal. Furthermore, even if the Record did not allow for meaningful
review, the appropriate remedy would be to remand the case to the DMVH, not to
dismiss it. See id. While it is true that ALC Rule 38
authorizes ALC judges to dismiss appeals for noncompliance with any of the ALC
procedural rules, it was the DMVH – not the Department – that prepared the
Record in this case. Therefore, dismissal on this ground is not warranted.
Issue
Preservation
Tighe further argues
that the Department failed to properly preserve any issues for appeal since it
neither appeared at the DMVH hearing nor filed anything with the DMVH. I
disagree.
It is well-settled that
an issue cannot be raised for the first time on appeal, but must have been
raised to and ruled upon by the trial court to be preserved for appellate review.
Staubes v. City of Folly Beach, 339 S.C. 406, 412, 529 S.E.2d 543, 546
(2000). “[T]he ultimate goal behind preservation of error rules is to insure
that an issue raised on appeal has first been addressed to and ruled on by the
trial court.” State v. Nelson, 331 S.C. 1, 6 n. 6, 501 S.E.2d 716, 718
n. 6 (1998). Without an initial ruling by the trial court, a reviewing court
simply cannot evaluate whether the trial court committed error. Staubes,
339 S.C. at 412, 529 S.E.2d at 546.
Here, the substantive
issue raised in this appeal – whether Tighe’s suspension should have been
rescinded because of Officer Price’s failure to advise Tighe of his Section
56-5-2934 rights at the location where Tighe was initially taken into custody –was
not ultimately ruled upon until the hearing officer issued his Final Order and
Decision. Rather than make a motion for reconsideration, the Department chose
to directly appeal the issue to the ALC. The Note to ALC Rule 29 specifically
provides that “[t]he filing of a motion for reconsideration is not a
prerequisite to filing a notice of appeal from the final decision of an
administrative law judge.”
In addition, the facts necessary for resolving this issue are clearly within
the Record. Therefore, this Court is fully able to evaluate whether the DMVH hearing
officer committed error.
Furthermore, as
discussed below, the Department’s primary argument on appeal is that the
Supreme Court’s decision in State v. Haase, 367 S.C. 264, 625 S.E.2d 634
(2006), which was issued almost ten months prior to Tighe’s hearing, is
directly adverse to the argument that was made by Tighe’s attorney in his
closing statement and ultimately adopted by the hearing officer.
Nevertheless, there is no evidence that the Haase decision was ever
mentioned to the DMVH hearing officer. Notably, Rule 3.3(a)(2) of the
Rules of Professional Conduct provides that “[a] lawyer shall not knowingly
fail to disclose to the tribunal legal authority in the controlling
jurisdiction known to the lawyer to be directly adverse to the position of the
client and not disclosed by opposing counsel.” Rule 407 SCACR, Rule
3.3(a)(2). Thus, if the Department’s argument about Haase is
correct (which, as discussed below, this Court concludes that it is), and
Tighe’s attorney knew of the Haase decision, then he had a duty to
disclose it to the hearing officer. While in all probability Tighe’s
attorney was simply unaware of the Haase decision, to now hold that the
Department is precluded from mentioning Haase on appeal would, like a
violation of Rule 3.3(a)(2), offend “the integrity of the adjudicative
process.” See Rule 407 SCACR, Rule 3.3(a)(2) cmt. 2.
For these reasons, I
conclude that the issue raised by the Department in this appeal is preserved
for review.
Roadside
DUI Advisement
S.C. Code Ann §
56-5-2934 (2006) provides in pertinent part:
[A]t the time of arrest for a violation
of Section 56-5-2930, 56-5-2933, or 56-5-2945, the arresting officer, in
addition to other notice requirements, must inform the defendant of his right
to all hearings provided by law to include those if a breath test is refused or
taken with a result that would require license suspension. The arresting
officer, if the defendant wishes to avail himself of any such hearings,
depending on the choices made or the breath test results obtained, must provide
the defendant with the appropriate form to request the hearing or hearings. The
defendant must acknowledge receipt of the notice requirements and receipt of
the hearing form if such a hearing or hearings are desired.
The Department argues that the
hearing officer erred by rescinding Tighe’s suspension on the grounds that
Officer Price violated Section 56-5-2934. For the following two reasons, I
agree.
First, as discussed
above, Section 56-5-2951(F) limits the scope of the administrative hearing to a
handful of issues, none of which includes the issue of whether law enforcement
complied with Section 56-5-2934. Specifically, Section 56-5-2951(F) provides
in pertinent part:
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; and (3) refused to submit to
a test pursuant to Section 56-5-2950.
S.C. Code Ann. § 56-5-2951(F) (2006)
(emphasis added). The import of 56-5-2951(F) was discussed by the Court of
Appeals in S.C. Dep’t of Motor Vehicles v. Nelson, 364 S.C. 514, 613
S.E.2d 544 (Ct. App. 2005). In that case, a motorist’s driver’s license was
suspended under Section 56-5-2951 for refusing to submit to chemical testing
after being arrested for driving under the influence. The Department’s hearing
officer upheld the suspension. However, the circuit court reversed, concluding
that the breath test was not offered within three hours of the arrest as
required by S.C. Code Ann. § 56-3-2953 (Supp. 2002). The Court of Appeals
subsequently reversed the circuit court’s decision and reinstated the
suspension. In doing so, the Court of Appeals acknowledged that law
enforcement failed to comply with the requirements of Section 56-5-2953. Id. at 524; 613 S.E.2d at 549. Nonetheless, the court held that law enforcement’s
noncompliance with Section 56-5-2953 did not warrant the rescission of the
motorist’s summary suspension. The court explained:
[N]othing in the code instructs that a failure to comply with
section 56-5-2953 warrants the dismissal of prosecution for failure to submit
to testing pursuant to section 56-5-2950. . . . Because Nelson did not consent
to testing, the scope of the hearing was limited to whether Nelson (1) was
lawfully arrested, (2) was advised in writing of his section 56-5-2950 rights,
and (3) refused to submit to a test. . . . The circuit court’s reversal of the
hearing officer was outside the purview of the proper scope of review.
Nelson, 364 S.C. at 524-26,
613 S.E.2d at 549-550.
Similarly, in this
case, the DMVH hearing officer erred by rescinding Tighe’s suspension on the
grounds that Officer Price failed to comply with Section 56-5-2934. The scope
of the hearing simply did not include the issue of whether or not Section
56-5-2934 was violated.
Second, reversal of the
hearing officer’s decision is also mandated by the Supreme Court’s decision in State
v. Haase, 367 S.C. 264, 625 S.E.2d 634 (2006). In that case, the defendant
was convicted of DUI in municipal court. On appeal, the circuit court reversed
the defendant’s conviction, finding that police had failed to comply with Section
56-5-2934 at the time of her arrest. On further appeal, the Supreme Court reinstated
the defendant’s conviction. Specifically, the court held that police had sufficiently
complied with the requirements of Section 56-5-2934 by giving the defendant her
Section 56-5-2950(a) warnings prior to her refusal to submit to the Data Master
test. The court explained:
Pursuant to S.C. Code Ann. § 56-5-2950(a) (the Implied
Consent statute), [the implied consent] warnings would have advised Haase that
her license would be suspended if she refused the test, and that she had the
right to request an administrative hearing. The purpose of the warnings under
§ 56-5-2934 are to advise the defendant of the consequences of refusing or
failing the breathalyzer, i.e., license suspension, and to advise the defendant
of the right to a hearing concerning a suspension and provide the necessary
forms to request such a hearing. . . . In State v. Dowd, 306 S.C. 268,
269, 411 S.E.2d 428, 429 (1991), we held that “[a]n arrest does not necessarily
terminate the instant a person is taken into custody; arrest also includes
bringing the person personally within the custody and control of the law.” We
find police, by giving Haase warnings prior to her refusal of the Data Master
test, sufficiently complied with the requirements of § 56-5-2934.
Id. at 267-68, 625 S.E.2d at
635.
Similarly,
in this case, the Record demonstrates – and the hearing officer found – that
Officer Price gave Tighe his implied consent warnings prior to Tighe’s refusal
of the DataMaster test. Therefore, pursuant to Haase, Officer Price sufficiently
complied with Section 56-5-2934. Accordingly, for this reason as well, the
DMVH hearing officer erred by rescinding Tighe’s suspension.
ORDER
IT IS THEREFORE
ORDERED that the DMVH’s Final Order and Decision is REVERSED.
IT IS SO ORDERED.
______________________________
Ralph K. Anderson, III
Administrative
Law Judge
May 15, 2008
Columbia, South Carolina
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