ORDERS:
ORDER
STATEMENT
OF THE CASE
This
matter is an appeal by Neal G. Rister (“Rister”) from a Final Order and
Decision of the South Carolina Division of Motor Vehicle Hearings (“DMVH”)
following an administrative hearing held pursuant to S.C. Code Ann. § 56-9-363
(Supp. 2007). Rister claims that the DMVH Hearing Officer erroneously sustained
the suspension of his driver’s license. The Administrative Law Court (“ALC”)
has jurisdiction to hear this matter pursuant to S.C. Code Ann. § 56-9-363 and S.C.
Code Ann. § 1-23-660 (Supp. 2007). Upon review of this matter, the DMVH’s Final
Order and Decision is affirmed.
BACKGROUND
On
the morning of May 13, 2007, Rister was involved in an automobile accident and
was transported to Lexington Medical Center. Trooper E. W. Richardson was
dispatched to investigate the accident. Upon arriving at Lexington Medical Center and observing Rister, Trooper Richardson found that Rister had bloodshot eyes,
thick speech and a very strong odor of alcohol on his breath. Rister admitted
to having consumed alcohol the night before. Trooper Richardson placed Rister
under arrest for Driving Under the Influence (“DUI”). Trooper Richardson read Rister his Miranda warnings and requested that Rister submit to a blood
test. Rister refused. Based on this refusal, Rister was issued a notice of
suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (2006).
Pursuant
to § 56-5-2951(B)(2), Rister filed a request for an administrative hearing to
challenge the suspension. The DMVH held an administrative hearing on June 5,
2007. At the
hearing, Trooper Richardson testified that Rister’s treating physician at the
hospital told him that Rister was unable to leave the hospital at that time in
order to submit to a breath test; for that reason, Trooper Richardson requested
that Rister provide a blood sample. Rister neither testified at the hearing
nor presented any other evidence.
On
July 3, 2007, the DMVH Hearing Officer issued a Final Order and Decision sustaining
Rister’s suspension. Specifically, he stated:
The statement made by licensed medical
personnel consisted of a signature on a pre-printed form letting the officer
know [Rister] would be unable to take a breath test. The officer offered this
testimony to show his response: the offering of a blood test. It was not
offered to prove that [Rister] was unable to give a breath test, but that the
officer was so informed and responded as set out by statute.
Rister now
appeals, essentially arguing that the Department failed to establish with
admissible evidence that it had complied with the statute permitting a blood
test.
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
Section
56-5-2950(a) of the South Carolina Code provides:
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.
S.C. Code Ann. §
56-5-2950(a) (2006). An arresting officer may
request a blood test, rather than a breath test, “[i]f the person is physically unable to provide an
acceptable breath sample because he has an injured mouth, is unconscious or
dead, or for any other reason considered acceptable by the licensed medical
personnel. . . .” Id.
Essentially,
Rister argues in this appeal that Trooper Richardson failed to establish with
admissible evidence that he complied with the statutory requirements to request
a blood sample. The court disagrees. Trooper Richardson’s testimony that the
treating physician told him that Rister was physically unable to leave the
hospital was not hearsay, as it was not admitted to prove that Rister was
actually unable to leave, but rather to show that his request for a blood test
was warranted under the statute because licensed medical personnel had
determined that Rister was unable to provide a breath sample. See Rule 801(c), SCRE; see also § 56-5-2950(a) (permitting a blood
sample rather than a breath test if a person is physically unable to give an
acceptable breath sample “for any reason considered acceptable by the licensed
medical personnel”); Peake v. S.C. Dep’t of Motor Vehicles, 375 S.C.
589, 603, 654 S.E.2d 284, 292 (“Although this court in Moore held the
inability to leave a medical facility could form a legally sufficient basis for
ordering a blood test, we expounded the record must show this determination is based
on the opinion of licensed medical personnel.”) (emphasis added) (discussing City of Columbia v. Moore, 318 S.C. 292, 457 S.E.2d 346 (Ct. App. 1995)); compare S.C. Dep’t of Motor Vehicles v. Fain, Docket No.
06-ALJ-21-0931-AP (Admin. Law Ct. Apr. 7, 2008) (Anderson, J.) (finding that a
physician’s statement that the motorist could not leave the hospital was not
hearsay because it was not offered to prove the truth of the matter asserted
but rather to show compliance with the statutory requirements for a blood
sample) with S.C. Dep’t of Motor Vehicles v. Cannon, Docket No.
06-ALJ-21-0555-AP (Admin. Law Ct. Jan. 18, 2007) (Geathers, J.) (finding that
the law enforcement officer’s testimony was too inconsistent to establish that
Cannon was properly offered a blood test because “it is not clear whether [the
law enforcement officer] offered the blood test for a reason found acceptable
by licensed medical personnel, or whether he offered the blood test simply for
his own convenience”).
Thus,
the DMVH Hearing Officer did not err in holding that the Department met its
burden of proving that it complied with the implied consent law by suspending Rister’s
license because he was arrested for driving under the influence and refused to
submit to a chemical test. See S.C. Dep’t of Motor Vehicles v. Nelson,
364 S.C. 514, 523, 613 S.E.2d 544, 549 (Ct. App. 2005); Ex Parte Horne,
303 S.C. 30, 31, 397 S.E.2d 788, 789 (Ct. App. 1990). 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 19, 2008
Columbia, South Carolina
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