ORDERS:
ORDER
This case comes before
me pursuant to two Motions to Quash Subpoena filed by the Petitioner, Dorchester
County Sherriff’s Department, and Deputy Randy Botten, individually. Respondent
seeks to conduct a deposition of Deputy Botten which is opposed by Dorchester
County Sherriff’s Department and Deputy Botten, individually.
DMVH Rule 11 provides
that a party may conduct one (1) deposition under SCRCP Rule 30. Rule 11 also
provides that discovery “shall be conducted according to the procedures in
Rules 26-37, SCRCP.” S.C. Code Ann. § 1-23-320 (d) (Supp. 2007) further provides
that “[a] person to whom a subpoena has been issued may move before the
administrative law judge for an order quashing or modifying the subpoena.” Therefore,
a conference call was held into this matter on May 27, 2008. After lengthy
arguments, I determined that both motions should be denied.
More specifically, I find
that Respondent properly served Deputy Botten pursuant to SCRCP 45 (b)(1) and 4
(d)(5). Rule 45 (b)(1) provides that “[s]ervice of a subpoena upon a person
named therein shall be made in the same manner prescribed for service of a
summons and complaint in Rule 4(d) or (j). . . .” Furthermore, Rule 4 (d)(5)
provides that service upon a public official is perfected upon delivering a
copy of the subpoena to the “officer or agency.” Here, service was made to and
accepted by the Major who is Deputy Botten’s supervisor.
I also find that
Petitioner failed to establish that requiring a deposition in this administrative
proceeding improperly hindered the State’s criminal prosecution against
Respondent for driving under the influence. Petitioner provided no specific
evidence that the deposition would interfere with the criminal process, other
than an assertion that it was a “back door attempt” at deposing a state’s
witness. Nevertheless, the holding of simultaneous civil and related criminal
proceedings by the State of South Carolina has been clearly upheld. S.C.
Dep't of Soc. Serv. v. Walter, 369 S.C. 384, 631 S.E.2d 913 (Ct. App. 2006); see also State v. Morris, 376 S.C. 189, 200, 656 S.E.2d
359, 365 (2008) (“[T]he occurrence of parallel civil and criminal
investigations does not, absent extraordinary circumstance, violate a
defendant’s rights to due process.”). Moreover, the Court notes that neither Petitioner
nor Deputy Botten have moved to stay the subpoena pending the completion of the
criminal proceeding; rather, they have moved to have the subpoena quashed. Therefore,
IT IS HEREBY ORDERED that the Motions to Quash Subpoena filed by the Dorchester County Sherriff’s
Department and by Deputy Randy Botten, individually, are DENIED.
AND IT IS SO ORDERED.
_________________________________
Ralph King Anderson, III
Administrative Law Judge
May 29, 2008
Columbia, South Carolina
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