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”) issued June 6, 2007. The DMVH’s Final Order
and Decision was issued following an administrative hearing held pursuant to
S.C. Code Ann. § 56-1-1090(c) (Supp. 2007). The Administrative Law Court
(“ALC”) has jurisdiction to hear this matter pursuant to S.C. Code Ann. §
1-23-660 (Supp. 2007). Upon careful review of this matter, the DMVH’s Final Order
and Decision is affirmed.
BACKGROUND
On
April 13, 2007, Officer Michael Cardaronella, a police officer for the Mount
Pleasant Police Department, arrested John M. Holloway (“Holloway”) for driving
under the influence (“DUI”). He transported Holloway to the Mount Pleasant
Police Department for a breath test. Upon reaching the Mount Pleasant Police
Department, Officer George P. Shorter read the implied consent form to Holloway
and provided him a written copy. Officer Shorter then asked Holloway if he was
going to submit to a breath test; Holloway refused. The Department suspended
Holloway’s license based on his refusal.
Pursuant
to S.C. Code Ann. § 56-5-2951(B)(2) (2006), Holloway filed a request for an
administrative hearing to challenge the suspension. The DMVH held an
administrative hearing on June 4, 2007. At the hearing, Officer Shorter
testified that he reviewed the implied consent form with Holloway and gave him
a copy. Officer Shorter introduced copies into evidence of the signed implied
consent form he gave to Holloway. Holloway did not appear at the hearing,
although he was represented by counsel.
On
June 6, 2007, the DMVH Hearing Officer issued a Final Order and Decision sustaining
Holloway’s suspension. Specifically, the DMVH Hearing Officer stated:
Officer Shorter advised [Holloway] of his
Miranda Rights, informed him that he was being videotaped and read the
Advisement of Implied Consent Rights to [Holloway]. The officer testified that
he read the top portion of the Advisement of Implied Consent Advisement [sic]
to [Holloway], as the bottom portion did not apply to him. [Holloway] refused
to submit to the DataMaster test. I conclude that the Officer has met the
burden of proof in this case.
Holloway now
appeals.
ISSUES
ON APPEAL
1. Did
the DMVH Hearing Officer err in finding that the testimony of Officer Shorter
was sufficient to establish that Holloway had been advised of his implied
consent rights and the breath sequence had been properly administered, even
though Officer Shorter referenced an unknown female in his testimony?
2. Did
the DMVH Hearing Officer err in admitting into evidence illegible and
unauthenticated copies of the Notice of Suspension and the Implied Consent
Advisement Form?
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. 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 (as
amended 2008); 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 to review agency decisions is provided by S.C. Code
Ann. § 1-23-380(5). See S.C. Code Ann. § 1-23-600(E) (as amended 2008)
(directing administrative law judges to conduct appellate review in the same
manner prescribed in § 1-23-380). 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(5).
Thus,
pursuant to the APA, this court’s review is limited to deciding whether the
DMVH’s Final Order and Decision is unsupported by substantial evidence or is
affected by an error of law. Bass v. Kenco Group, 366 S.C. 450, 457,
622 S.E.2d 577, 581 (Ct. App. 2005). Substantial evidence is not a mere
scintilla of evidence, nor the evidence viewed blindly from one side of the
case, but is evidence which, considering the record as a whole, would allow
reasonable minds to reach the conclusion the agency reached in order to justify
its action. Hargrove v. Titan Textile Co., 360 S.C. 276, 289, 599
S.E.2d 604, 611 (Ct. App. 2004). The possibility of drawing two inconsistent
conclusions from the evidence does not prevent the agency’s findings from being
supported by substantial evidence. Id. at 290, 599 S.E.2d at 611. The
party challenging an agency’s decision has the burden of proving convincingly
that the agency’s decision is unsupported by substantial evidence. Waters
v. S.C. Land Resources Conservation Comm’n, 321 S.C. 219, 226, 467 S.E.2d
913, 917 (1996).
DISCUSSION
1.
Police Officer’s Reference to a Different Motorist
Holloway
argues that the DMVH Hearing Officer erred in finding that the testimony of
Officer Shorter was sufficient to establish that Holloway had been advised of
his implied consent rights and the breath sequence had been properly
administered, where Officer Shorter referenced an unknown female in his
testimony. The court disagrees.
Although
Officer Shorter unequivocally testified to having properly advised Holloway of
his implied consent rights and administered the breath sequence, (DMVH Hr’g Tr.
6-7, June 4, 2007), the transcript shows that Officer Shorter later testified
about an unknown female, stating “Ms. Starnes was provided a copy of [the
ticket]. She (inaudible) also. . . . I explained [the notice of suspension
form] to her and she refused to sign that.” (DMVH Hr’g Tr. 9, June 4, 2007.) The
Department contends that this is possibly a transcription error because it is
apparent that some parts of the tape recording of the hearing were inaudible;
also, the court reporter was unable to ascertain the name of Officer
Cardaronella or Holloway’s counsel. (DMVH Hr’g Tr., June 4, 2007.) However,
based on the fact that Holloway’s attorney references the confusing testimony
in his closing statement, it is unlikely that it is a transcription error. (DMVH
Hr’g Tr. 11, June 4, 2007 (“I believe that we will find there is some confusion
as to who was being administered this test, and in that regard, I think we have
conflicting and contradictory testimony regarding who the defendant was.”)). Nevertheless,
the court finds that the DMVH Hearing Officer did not err in finding that the
testimony of Officer Shorter was sufficient to establish that Holloway had been advised of his implied consent rights and the breath sequence had been
properly administered. As previously indicated, Officer Shorter clearly stated
during the hearing that Holloway had been advised of his implied consent
rights:
I advised Mr. Holloway of
his Miranda rights and advised him that everything in the room was being audio
and video recorded. At that point, I read Mr. Holloway his driving under the
influence advisement per the form that I have here. I’d like to show Mr.
Holloway read the form with me. He did not feel comfortable signing it. At
that time, I did perform a time stamp on the ticket for the BA machine. The BA
machine did pass the internal test which shows that the machine was working
properly. At the time, we went through a twenty-minute observation period.
Mr. Holloway refused the breath sample. I entered all of his information into
the breathalyzer machine which printed out the ticket and I have a copy of
that.
(DMVH Hr’g Tr.
6-7, June 4, 2007.) Although Officer Shorter apparently became confused later,
and testified to having administered the test to a “Ms. Starnes,” it was not
unreasonable for the DMVH Hearing Officer to credit Officer Shorter’s earlier testimony
that specifically referred to Holloway.
2.
Original Forms
Holloway
argues that the Hearing Officer erred in admitting into evidence “unauthenticated
copies of the notice of suspension and Implied Consent Advisement Form.” (Appellant’s
Br. at 5.) Even if admission of the duplicates constituted error, however, such an error would be harmless. Rescission of Holloway’s suspension
was not warranted simply because Officer Cardaronella or Officer Shorter failed
to offer into evidence the original implied consent form. Officer Shorter
testified that he provided Holloway with a copy of the implied consent
advisement form. Holloway did not cross-examine Officer Shorter on this issue
or introduce any evidence tending to show that Officer Shorter did not do so. Even
without original exhibits, Officer Shorter’s testimony constitutes sufficient evidence
from which the Hearing Officer could reasonably find that Officer Shorter advised
Holloway of his implied consent rights in writing.
Finally,
even if there were not substantial evidence supporting a finding that Officer Shorter
provided Holloway with his implied consent rights in writing, the decision by
the South Carolina Court of Appeals in Taylor v. S.C. Department of Motor
Vehicles, 368 S.C. 33, 627 S.E.2d 751 (Ct. App. 2006), requires that the
motorist allege and prove that he was prejudiced by the officer’s failure to
provide those rights in writing. Taylor, 368 S.C. at 38, 627 S.E.2d at
754. Holloway made no allegation of prejudice and offered no evidence
establishing any prejudice. Accordingly, under Taylor, the DMVH Hearing
Officer did not err in upholding his suspension.
ORDER
For
the foregoing reasons, it is
ORDERED that the DMVH’s Final Order and Decision is AFFIRMED.
IT
IS SO ORDERED.
______________________________
Paige J. Gossett
Administrative
Law Judge
August 21, 2008
Columbia, South Carolina
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