ORDERS:
ORDER
STATEMENT
OF 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
erroneously suppressed testimony by a law enforcement officer regarding the
arrest of Respondent Kevin Rhette Barnette for driving under the influence
(DUI). 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 affirmed.
BACKGROUND
On
June 16, 2007, Respondent was arrested by Trooper Pruitt of the South Carolina
Department of Public Safety (DPS) for DUI. Respondent was subsequently issued
a Notice of Suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (2006) for
refusing to submit to a DataMaster test. In accordance with S.C. Code Ann. §
56-5-2951(B)(2) (2006), Respondent filed a request with the DMVH for an administrative
hearing to challenge his suspension. Thereafter, Respondent served Trooper
Pruitt with a subpoena requesting, among other things, that Trooper Pruitt produce
a copy of the videotape of his arrest by July 11, 2007. According to the
Certificate of Mailing attached to the subpoena, the subpoena was mailed to
Respondent on July 3, 2007. A copy of the subpoena was filed with the DMVH.
The administrative
hearing was held by the DMVH on July 16, 2007, and it was attended by
Respondent, Respondent’s attorney, and Trooper Pruitt. Trooper Pruitt did not
produce the videotape prior to the hearing, and he did not bring the videotape
to the hearing. At the onset of the hearing, Respondent moved to suppress the
evidence contained in the videotape based on Trooper Pruitt’s failure to
produce the videotape. The hearing officer denied Respondent’s motion at that
time, but ordered Trooper Pruitt to submit the videotape to Respondent within
24 hours. In doing so, the hearing officer expressly warned Trooper Pruitt
that his failure to comply with her instructions would lead to the suppression
of the evidence contained in the videotape.
On August 13, 2007, Respondent filed a motion to dismiss,
asserting that the videotape that he received from Trooper Pruitt did not
include Respondent’s arrest, but instead contained television programming.
Respondent’s motion to dismiss was accompanied by a copy of the videotape that
Respondent received from Trooper Pruitt. After viewing the videotape, the DMVH
hearing officer issued a Final Order and Decision on August 15, 2007 in which
she rescinded Respondent’s suspension. In her Final Order and Decision, the
hearing officer ruled that Trooper Pruitt’s testimony regarding Respondent’s
arrest was being suppressed due to his failure to comply with her instructions
to submit the arrest-site videotape to Respondent. She further held that the
evidence admitted into the record did not sufficiently demonstrate that Trooper
Pruitt had probable cause to arrest Respondent for DUI. The Department now
appeals.
ISSUE
ON APPEAL
Did the DMVH hearing officer err in suppressing Trooper
Pruitt’s testimony regarding Respondent’s arrest?
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. §
1-23-505(2) (as amended by 2008 S.C. Act No. 334). 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 by 2008 S.C. Act No. 334); 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(5)
(as amended by 2008 S.C. Act No. 334). See S.C. Code Ann. § 1-23-600(E)
(as amended by 2008 S.C. Act No. 334) (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;
© 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) (as amended by 2008 S.C. Act No. 334).
The
imposition of sanctions is generally entrusted to the sound discretion of the
trial court. Downey v. Dixon, 294 S.C. 42, 45, 362 S.E.2d 317,
318 (Ct. App. 1987). A trial court’s exercise of its discretionary powers with
respect to sanctions imposed in discovery matters will not be interfered with by
an appellate court absent an abuse of discretion. Karppi v. Greenville
Terrazzo Co., Inc., 327 S.C. 538, 542, 489 S.E.2d 679, 681 (Ct. App. 1997).
The burden is upon the party appealing the order to demonstrate that the trial
court abused its discretion. Id. An abuse of discretion may be found
where the appellant shows that the conclusion reached by the trial court was
without reasonable factual support, resulted in prejudice to the rights of the
appellant, and, therefore, amounted to an error of law. Id.
DISCUSSION
The Department makes
several arguments regarding why it believes that the DMVH hearing officer
committed error by suppressing Trooper Pruitt’s testimony. Each argument is
discussed below.
The
DMVH Hearing Officer’s Authority to Suppress Trooper Pruitt’s Testimony
The Department’s first
argument is that the DMVH hearing officer did not have the authority, under DMVH
Rules, to suppress Trooper Pruitt’s testimony. I disagree.
DMVH Rule 12(A)
provides in pertinent part:
A subpoena may be served on any law enforcement officer
personally or by serving the officer or his law enforcement agency by certified
mail, return receipt requested. . . . For subpoenas compelling the production
of documents or other tangible objects, the proponent of the subpoena must
serve the subpoena at least ten days prior to the scheduled hearing date, and
the person or agency served with the subpoena shall be required to produce the
subpoenaed items a minimum of five days prior to the scheduled hearing date,
unless otherwise ordered by the hearing officer for good cause shown. Failure
to comply with this section may result in the exclusion of evidence not produced
in compliance with the subpoena.
(emphasis added).
Here, Respondent served
Trooper Pruitt with a subpoena directing him to provide a copy of the arrest-site
videotape to Respondent by July 11, 2007. At no point did Trooper Pruitt move to
quash the subpoena pursuant to DMVH Rule 12©. Nevertheless, Trooper Pruitt
failed not only to provide the videotape by July 11, 2007, he also failed to
provide it by July 16, 2007, the date of the hearing. Therefore, because
Trooper Pruitt failed to comply with Respondent’s subpoena for the arrest-site
videotape, the hearing officer had the authority, under DMVH Rule 12(A), to
suppress, on the date of the hearing, Trooper Pruitt’s testimony regarding
Respondent’s arrest. Despite that authority, the hearing officer granted
Trooper Pruitt further latitude by allowing him to submit the videotape to Respondent
within 24 hours. Trooper Pruitt’s failure to provide Respondent with the
correct videotape within that time frame certainly justified the exclusion of Trooper
Pruitt’s testimony.
Moreover, while Trooper
Pruitt was not an employee of the Department, the Department, which did not appear
at the DMVH hearing, entrusted the prosecution of the matter to Trooper Pruitt.
Had the Department appeared at the hearing, it would not have been bound by
Trooper Pruitt’s actions. Cf. Tex. Dep’t of Pub. Safety v.
Katopodis, 886 S.W.2d 455, 458 (Tex. Ct. App. 1994) (state agency that
appears at expunction hearing is not bound by district attorney’s actions or
agreements on expunction). However, since the Department did not appear, its
interests were represented by Trooper Pruitt at the hearing. Cf. Texas Dep’t of Pub. Safety v. Butler, 941 S.W.2d 318, 320 (Tex. Ct. App.
1997) (in the absence of a separate appearance by state agency, interests of state
agency are represented by district attorney at expunction hearing). Accordingly,
even though the sanction imposed by the hearing officer adversely affected the
interests of the Department, the sanction was not overly broad. Cf. Texas Dep’t of Pub. Safety v. Smart, 2008 WL 391300 (Tex. Ct. App. 2008)
(unpublished mem. Decision) (citing Butler and holding that state agency
that failed to appear at expunction hearing could not avoid consequences of
actions taken by district attorney at hearing); but cf. Karppi,
327 S.C. 538, 489 S.E.2d 679 (sanction imposed in discovery matter was overly
broad where it affected interests of third party that was not involved in
discovery matter).
Furthermore, while
the suppression of Trooper Pruitt’s testimony effectively resulted in the disposal
of the action adverse to the interests of DPS and the Department, DMVH Rule 13
expressly provides:
The hearing officer may dismiss a
contested case or dispose of a contested case adverse to the defaulting party.
A default occurs when a party fails to plead or otherwise prosecute or defend,
fails to appear at a hearing without the proper consent of the hearing officer or
fails to comply with any interlocutory order of the hearing officer.
(emphasis added).
In this case, as
discussed above, in addition to failing to comply with Respondent’s subpoena, Trooper
Pruitt failed to properly comply with the interlocutory order of the hearing
officer directing Trooper Pruitt to provide a copy of the videotape to
Respondent within 24 hours after the hearing. Therefore, pursuant to DMVH Rule
13, the hearing officer was permitted to administer a sanction that resulted in
the disposal of the case adverse to the interests of DPS and the Department.
The Department
nevertheless argues that the suppression of Trooper Pruitt’s testimony was not
warranted since Respondent did not first seek to enforce the subpoena pursuant
to the provisions of DMVH Rule 12(B). In making this argument, the Department relies on the ALC’s decision in Lowman
v. S.C. Dep’t of Motor Vehicles, 06-ALJ-21-0388, 2007 WL 2707693 (August
22, 2007).
In Lowman, a
motorist appealed a DMVH hearing officer’s decision sustaining his suspension
under Section 56-5-2951 for refusing to submit to a breath test. The motorist
argued that the hearing officer erred by failing to suppress a law enforcement
officer’s testimony regarding the motorist’s arrest after the law enforcement officer
failed to comply with the motorist’s subpoena for the arrest-site videotape.
The ALC disagreed, and it affirmed the hearing officer’s decision.
Specifically, the court concluded that, because the motorist made no attempt to
enforce his subpoena pursuant to S.C. Code Ann. § 1-23-320(d) (2006) prior to the hearing, the hearing officer’s decision to allow the law
enforcement officer to testify at the hearing about the motorist’s arrest was “entirely
appropriate.” Lowman, 2007 WL 2707693, at *4.
The Department’s
reliance on Lowman is misplaced. To begin with, if the Department is
seeking to invoke the doctrine of stare decisis, that
doctrine is simply not so easily invoked. Rather, the doctrine of stare
decisis proclaims that “where a principle of law has become settled by a series
of decisions, it is binding on the courts and should be followed in similar
cases.” State v. Balance, 51 S.E.2d 731, 733 (N.C. 1949). Additionally,
while ALJs should give due consideration to the decisions and reasoning of
other ALJs, their rulings are not binding upon other ALJs. See, e.g., Schiffner
v. Motorola, Inc., 697 N.E.2d 868, 871 (Ill. App. Ct. 1998) (“Stare decisis
requires courts to follow the decisions of higher courts, but does not bind
courts to follow decisions of equal or inferior courts.”); Shook v. State,
244 S.W.2d 220, 221 (Tex. Crim. App. 1951) (“It is rudimentary that courts are
not bound by the decisions of other courts of equal jurisdiction. The power to
establish precedent is lodged in courts of superior jurisdiction.”); People
v. Hill, 834 N.Y.S.2d 840, 845 (N.Y. City Crim. Ct. 2007) (“A decision of a
court of co-ordinate jurisdiction is not a binding precedent.”); Nationwide
Mut. Ins. Co. v. Yungwirth, 940 A.2d 523, 528 n.5 (Pa. Super. 2008) (“While
the Superior Court is bound to give due consideration to the decisions and
reasoning of the Commonwealth Court, this Court is not bound to follow such
decisions as controlling precedent.”). Likewise, trial judges simply are not
bound by the rulings of other trial judges. See State v. Riley,
698 So.2d 374, 376 n.1 (Fla. Dist. Ct. App. 1997) (“While we understand the
trial court’s desire to maintain uniformity within the county court, we note
that decisions of one county court are not binding precedent on another county
court because ‘[t]rial court’s do not create precedent.’”); see generally 20 Am. Jur. 2d Courts § 141 (2005). Moreover, the ALC Rules provide for
a method to create binding precedent in the ALC via a request for an en banc
decision. See ALC Rule 70. That rule thus invokes the principle that
“[f]or an opinion to have a stare decisis effect, at least a majority of the
members of the court must have joined in the opinion.” 20 Am. Jur. 2d Courts § 138 (2005).
Furthermore, the present case is clearly
distinguishable from Lowman. First, in Lowman, the court was
reviewing the DMVH’s decision to admit the arresting officer’s
testimony. Here, in contrast, the court is reviewing the DMVH’s decision to
suppress the arresting officer’s testimony. As discussed above, a trial
judge’s decision regarding the imposition of sanctions in discovery matters
will not be reversed on appeal absent an abuse of discretion. Thus, unlike in Lowman,
where the Department sought affirmance of the hearing officer’s evidentiary
decision, in the present case, the Department must establish that the hearing
officer’s decision was characterized by an abuse of discretion.
Second, unlike the
arresting officer in Lowman, Trooper Pruitt not only failed to comply
with the motorist’s subpoena, he also failed to comply with the hearing officer’s
order directing him to produce the videotape, despite being warned by the
hearing officer of the consequences of noncompliance. Disregarding a tribunal’s
order is inherently risky. As the Florida District Court of Appeal has noted:
A party may not ignore a valid order of court except at its
peril. There are avenues of redress by appellate review for orders which may
be erroneous, but so long as such orders are entered by a court which has
jurisdiction of both the subject matter and the parties, they cannot be
completely ignored without running the risk that an appropriate sanction may be
imposed.
Johnson v. Allstate Ins. Co.,
410 So.2d 978, 980 (Fla. Dist. Ct. App. 1982); accord Becerril v.
Skate Way Roller Rink, 184 A.D.2d 365, 366 (N.Y. App. Div. 1992) (“A
certain amount of discretion is reserved to the [trial] court in crafting
conditional orders to encourage the cooperation of neglectful parties so that
their claims can be litigated on the merits. A plaintiff ignores such
conditional orders at his peril . . .”); see also Phillips v.
Insurance Co. of N. America, 633 F.2d 1165, 1168 (5th Cir. Unit B Jan.
1981) (an order compelling discovery “is to be scrupulously obeyed by the
parties”).
Finally, at the time
the DMVH issued its decision in Lowman, the DMVH Rules had not yet
become effective.
DMVH Rule 12(A) now clearly grants a DMVH hearing officer the authority to
exclude evidence for failing to comply with a subpoena. Moreover, nothing in the
DMVH Rules makes this authority contingent upon the subpoenaing party first
seeking to enforce the subpoena pursuant to DMVH Rule 12(B). Furthermore, DMVH
Rule 13 grants a DMVH hearing officer the authority to dispose of a case adverse
to a party’s interests if the party fails to comply with an interlocutory order
of the hearing officer. Thus, the DMVH’s authority to suppress the arresting
officer’s testimony is clearer here than it was in Lowman.
Existence
of Bad Faith, Willfulness or Gross Indifference
Alternatively, the
Department argues that, even if the hearing officer had the authority to
suppress Trooper Pruitt’s testimony, she abused her discretion because the
sanction was too harsh for the circumstances. I disagree.
As noted above, a trial
court’s exercise of its judgment with respect to sanctions will be interfered
with by an appellate court only if an abuse of discretion has occurred. Karppi,
327 S.C. at 542, 489 S.E.2d at 681 (Ct. App. 1997). An abuse of discretion exists
if the conclusions reached by the court are without reasonable factual support
resulting in prejudice to the rights of appellant, thereby amounting to an
error of law. Id. at 542, 489 S.E.2d at 681. In determining whether to
dismiss a case or issue a sanction that results in a case being dismissed, the
court must recognize that such actions are harsh medicine that should not be
administered lightly. Id, at 542-43, 489 S.E.2d at 682. Therefore, such
a severe remedy should not be invoked absent some element of bad faith,
willfulness, or gross indifference to the rights of other litigants. Id. at 543, 489 S.E.2d at 682.
Based on the record as
a whole, I conclude that the Department has failed to establish that the
hearing officer abused her discretion by suppressing Trooper Pruitt’s
testimony. The facts of the present case are similar to those in Halverson
v. Yawn, 328 S.C. 618, 493 S.E.2d 883 (Ct. App. 1997). In that case, the
trial court issued an order compelling the plaintiff to answer the defendant’s
interrogatories and to respond to the defendant’s document-production request within
thirty days. The trial court’s order expressly provided that, in the event
that the plaintiff failed to comply with the order, the plaintiff’s case would
be dismissed. After the plaintiff failed to comply with the order, the trial
court dismissed the plaintiff’s case. Without first filing a motion to amend
or alter the judgment with the trial court, the plaintiff appealed to the Court
of Appeals. The Court of Appeals affirmed the trial court’s decision,
concluding that the plaintiff had failed to adequately prove that the trial
court abused its discretion. In reaching that conclusion, the court acknowledged
that “the sanction of dismissal is ‘harsh medicine that should not be
administered lightly,’” but it emphasized that the arguments made by the plaintiff on appeal either had
not been raised to the trial court or were unsupported by the record.
Similar to the
plaintiff in Halverson, Trooper Pruitt failed to comply with the hearing
officer’s order directing him to produce the videotape, despite the fact that the
hearing officer expressly warned him of the consequences of noncompliance. Moreover, as discussed in more detail below, most of the arguments now being
made by the Department on appeal either were never raised to the hearing
officer or are unsupported by the record. Like the plaintiff in Halverson,
neither DPS nor the Department filed a post-trial motion with the DMVH hearing
officer after she issued her Final Order and Decision.
While the Department did
file a motion with this Court to supplement the record with an affidavit
by Trooper Pruitt explaining his failure to produce the videotape, the Court
denied that motion. See S.C. Dep’t of Motor Vehicles v. Barnette,
07-ALJ-21-0464-AP (August 18, 2008). Furthermore, the evidence in the affidavit,
even if considered, does not sufficiently demonstrate that Trooper Pruitt’s repeated
failure to produce the videotape was not due to willfulness or gross
indifference. For instance, according to the affidavit, Trooper Pruitt did not
comply with the subpoena at or before the hearing because he did not receive
the subpoena until the late afternoon of July 13, 2007 and therefore “did not
have a sufficient amount of time” to comply with it before the July 16th hearing. However, the explanation provided by Trooper Pruitt at the hearing
was a bit more revealing in this regard. For example, when asked by the
hearing officer if he had intended to comply with the subpoena, Trooper Pruitt
testified, “As far as the subpoena goes, yes, ma’am, I did have every intention
to comply, but I didn’t receive it until then [July 13, 2007] and I was trying
to consult with my sergeant . . . My first sergeant as to what actions to take
since I hadn’t received it prior to the date that it was due.” Moreover, later
on in the hearing, Trooper Pruitt testified that “I believe the solicitor sent
orders down to us that if Mr. Cole [Respondent’s attorney] or if any other
attorney wanted a copy of the tape, we were not to furnish the tape.” Such
testimony indicates that there was more to Trooper Pruitt’s failure to produce
the videotape at the hearing than the affidavit implies. Furthermore, while
Trooper Pruitt claims that he did not receive the subpoena until July 13, 2007,
the Certificate of Mailing attached to the subpoena indicates that it was
mailed on July 3, 2007, and Respondent’s attorney further substantiated at the
hearing that the subpoena was mailed to Trooper Pruitt on that date.
Additionally, Trooper
Pruitt further claims in the affidavit that his submission to Respondent of the
videotape containing television programming was due to a “good faith” error
that he made while making a copy of the original videotape. However, Trooper
Pruitt also admits in the affidavit that, despite not being familiar with the
recording device that he used and despite the fact that no instructions were
posted on the device, he did not review the videotape before delivering it to
Respondent’s attorney. Trooper Pruitt’s carelessness in copying the videotape is
significant in light of his failure to produce the videotape at or before the
hearing. Accordingly, the Court concludes that, even if considered, the
affidavit does not establish that reversal of the hearing officer’s decision is
warranted here.
The Department, nevertheless,
appears to claim that the hearing officer abused her discretion since there was
not “the slightest hint” that Respondent suffered prejudice as a result of not receiving
the videotape. The Department asserts that, since the Respondent was at the
scene, he “could have testified if he thought the Trooper’s testimony differed
with what actually happened.” This argument is without merit. First, as an
initial matter, neither DMVH Rule 12 nor DMVH Rule 13 requires the hearing
officer to make a finding of prejudice before imposing the sanctions authorized
under those rules. Second, a videotape will generally carry more weight with a
DMVH hearing officer than the testimony of a party. Finally, the General
Assembly clearly considers the arrest-site videotape to be an important piece
of evidence for motorists. This is demonstrated by the fact that, in criminal
DUI matters, the failure by law enforcement to produce the arrest-site
videotape can, under S.C. Code Ann. § 56-5-2953(B) (2006), lead to the dismissal
of the DUI charge. See S.C. Code Ann. § 56-5-2953(B) (2006); City of
Rock Hill v. Suchenski, 374 S.C. 12, 646 S.E.2d 879 (2007).
Alleged
Defects in the Service of the Subpoena
A.
Service on Trooper Pruitt
The Department further argues
that the subpoena for the videotape was not properly served on Trooper Pruitt
and that, therefore, the hearing officer should not have suppressed Trooper
Pruitt’s testimony for failing to produce the videotape. Specifically, the
Department argues that the subpoena was served on Trooper Pruitt by regular U.S. mail rather than by certified mail, return receipt requested, as is required by DMVH
Rule 12.
It is well-settled that
an issue cannot be raised for the first time on appeal. Staubes v. City of Folly Beach, 339 S.C. 406, 412, 529 S.E.2d 543, 546 (2000). To be preserved for
appellate review, the issue must have been: (1) raised to and ruled upon by the
trial court; (2) raised by the appellant; (3) raised in a timely manner; and
(4) raised to the trial court with sufficient specificity. S.C. Dep’t of
Transp. V. First Carolina Corp. of S.C., 372 S.C. 295, 301-02, 641 S.E.2d
903, 907 (2007) (quoting Jean Hoefer Toal et al., Appellate Practice in
South Carolina 57 (2d ed. 2002)).
In the present case, at
no point during the DMVH proceeding did Trooper Pruitt argue that Respondent
failed to serve the subpoena on him by certified mail, return receipt
requested. Additionally, Trooper Pruitt did not move to quash the subpoena
pursuant to DMVH Rule 12©. Furthermore, the hearing officer did not make any
rulings regarding the propriety of the service of the subpoena on Trooper
Pruitt. Accordingly, the issue of whether Respondent failed to serve the
subpoena on Trooper Pruitt by certified mail, return receipt requested, has not
been preserved for review by this Court.
B.
Service on the Department
The Department also argues
that, pursuant to DMVH Rule 5, Respondent was required to serve the Department
with a copy of the subpoena and that Respondent did not do so. The Department contends that it “was deprived of an opportunity to object to
the subpoena, or to have [an] opportunity to attempt to facilitate compliance,
and was clearly prejudiced thereby when the case was dismissed.”
There are several flaws
with the Department’s argument. First, the issue of whether Respondent
complied with DMVH Rule 5 in serving the subpoena was never raised to or ruled
upon by the hearing officer. Therefore, it has not been properly preserved for
review. First Carolina Corp. of S.C., 372 S.C. at 301-02, 641 S.E.2d at
907.
Second, when Trooper
Pruitt failed to comply with the subpoena by the date of the hearing, the DMVH
hearing officer did not immediately impose sanctions, but rather granted
Trooper Pruitt another opportunity to produce the videotape. Had the
Department appeared at the hearing, it would have known about the hearing
officer’s order directing Trooper Pruitt to produce the videotape. Thus, the
Department could have, at that time, worked with Trooper Pruitt to ensure that
he properly produced the videotape.
Finally, it is unclear
whether the Department would have had standing to object to the subpoena. DMVH
Rule 12© provides that “[a] person to whom a subpoena has been issued may
move before the Administrative Law Court pursuant to S.C. Code Ann. §
1-23-320(d) for an order quashing or modifying the subpoena.” In this case,
the subpoena was issued to Trooper Pruitt, not to the Department. While federal
courts, in interpreting Rule 45 of the Federal Rules of Civil Procedure, have held
that a party may object to a subpoena issued to another in certain
circumstances, here, the Department has not explained what its grounds for objection would
have been.
For these reasons, I
conclude that the hearing officer’s Final Order and Decision should not be
reversed on the grounds that Respondent failed to comply with DMVH Rule 5 in
serving the subpoena.
Rule
34, SCRCP
Finally, the Department
argues that the hearing officer erred by suppressing Trooper Pruitt’s testimony
since Trooper Pruitt was not granted the thirty-day timeframe set forth in Rule
34, SCRCP to comply with Respondent’s request for the videotape. I disagree.
First, as an initial
matter, this issue was never raised to or ruled upon by the DMVH hearing
officer, and, as noted above, no motion was ever made to quash the subpoena
pursuant to DMVH Rule 12©. Therefore, this issue has not been preserved for
review. First Carolina Corp. of S.C., 372 S.C. at 301-02, 641 S.E.2d at
907.
Second,
even this issue had been preserved, reversal of the hearing officer’s order
would not be warranted. In this case, the time period set forth in Rule 34,
SCRCP for compliance with a production request conflicts with DMVH Rule 12,
which provides that “[f]or subpoenas compelling the production of documents or
other tangible objects, the proponent of the subpoena must serve the subpoena
at least ten days prior to the scheduled hearing date, and the person or
agency served with the subpoena shall be required to produce the subpoenaed
items a minimum of five days prior to the scheduled hearing date, unless
otherwise ordered by the hearing officer for good cause shown.” (emphasis
added). When two rules conflict, the more specific one prevails. See Avant
v. Willowglen Academy, 367 S.C. 315, 319, 626 S.E.2d 797, 799 (2006).
Here, DMVH Rule 12 deals specifically with subpoenas issued to law enforcement
officers in DMVH proceedings, whereas Rule 34, SCRCP deals generally with
production requests submitted by one party to another party in any civil
proceeding. Moreover, DMVH Rule 12 implicitly recognizes that, since implied
consent hearings are generally required to be held within thirty days of the
DMVH’s receipt of the motorist’s hearing request, there must be a shorter time frame for compliance than that allowed under Rule
34, SCRCP. Therefore, because DMVH Rule 12(A) is a more specific rule that
takes into account the unique nature of implied consent hearings, I find that
it, not Rule 34, SCRCP, controls. Accordingly, because Trooper Pruitt did not
move to quash the subpoena, he was required to provide the subpoena by July 11,
2007, which was five days prior to the scheduled hearing date.
ORDER
IT
IS THEREFORE ORDERED that that the DMVH’s Final Order and Decision is AFFIRMED.
AND
IT IS SO ORDERED.
______________________________
Ralph K. Anderson, III
Administrative
Law Judge
August 18, 2008
Columbia, South Carolina
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