SC Administrative Law Court Decisions

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 The DMVH’s Final Order and Decision, which rescinded the suspension of Respondent Tony Smith’s driver’s license, was issued following an administrative hearing held pursuant to S.C. Code Ann. § 56-5-2951 (2006 & Supp. 2007). The Department contends that law enforcement’s failure to videotape the DataMaster test procedure did not warrant the rescission of Smith’s suspension. 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 November 25, 2007, Trooper Hoffman of the South Carolina Highway Patrol was patrolling U.S. 601 when he observed a vehicle travelling at a high rate of speed. Upon determining that the vehicle’s speed was 75 miles per hour, Trooper Hoffman initiated a traffic stop. He identified Smith as the driver of the vehicle. While speaking with Smith, Trooper Hoffman detected an odor of alcohol on Smith’s breath. Trooper Hoffman asked Smith if he had consumed any alcohol. Smith stated that he had consumed one beer. Trooper Hoffman then administered three field sobriety tests to Smith: (i) the horizontal gaze nystagmus test; (ii) the one-leg stand test; and (iii) the walk-and-turn test. In Trooper Hoffman’s opinion, Smith failed the tests. After the field sobriety tests were completed, Smith informed Trooper Hoffman that he had not consumed just one beer as he had previously claimed, but that he had, in fact, consumed three or four beers. At that point, Trooper Hoffman arrested Smith for driving under the influence (DUI) and transported him to the Bamberg Detention Center for a DataMaster test.

At the detention center, Trooper Hoffman read Smith his implied consent rights. Smith refused to submit to the DataMaster test and, as a result, was issued a Notice of Suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (2006). None of the events that took place in the DataMaster room were videotaped.

Thereafter, pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (2006), Smith filed a request for an administrative hearing to challenge his suspension. An administrative hearing was held on January 24, 2008. On May 1, 2008, the DMVH hearing officer issued an Amended Final Order and Decision rescinding Smith’s suspension. The hearing officer explained:

Although the Respondent refused to submit to a breath test, he was prejudiced by the officer’s failure to video the test procedure. Accordingly, the relief requested by Respondent is granted.

The Department now appeals.

ISSUE ON APPEAL

Did the DMVH hearing officer err by rescinding Smith’s administrative suspension on the grounds that Trooper Hoffman failed to videotape the DataMaster testing procedure?

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).

DISCUSSION

The Department argues that the DMVH hearing officer erred by rescinding Smith’s suspension on the grounds that Trooper Hoffman failed to videotape the DataMaster testing procedure. The Court agrees.

S.C. Code Ann. § 56-5-2953(A) (2006) provides that “a person who violates Section 56-5-2930, 56-5-2933, or 56-5-2945 must have his conduct at the incident site and the breath test site videotaped.” (emphasis added).[1] Under the rules of statutory interpretation, the use of the word “must” indicates the legislature’s intent to enact a mandatory requirement. Collins v. Doe, 352 S.C. 462, 470, 574 S.E.2d 739, 743 (2002). In fact, the Supreme Court has recently held that law enforcement’s noncompliance with § 56-5-2953(A) can lead to the dismissal of criminal DUI charges. See City of Rock Hill v. Suchenski, 374 S.C. 12, 646 S.E.2d 879 (2007).

In Suchenski, the defendant, who was charged with a violation of S.C. Code Ann. § 56-5-2933 (Driving with an Unlawful Alcohol Concentration), argued that the arresting officer’s failure to provide a complete videotape of the incident-site events as required by Section 56-5-2953 mandated the dismissal of his charges. On appeal, the South Carolina Supreme Court agreed with the defendant. The court reasoned:

The statute [Section 56-5-2953] provides, “Failure by the arresting officer to produce the videotapes required by this section is not alone a ground for dismissal of any charge made pursuant to Section 56-5-2930, 56-5-2933, or 56-5-2945 if [exceptions apply] …” Conversely, failure to produce videotapes would be a ground for dismissal if no exceptions apply.

Suchenski, 374 S.C. at 16, 646 S.E.2d at 881 (emphasis omitted).

The present case, however, is distinguishable from Suchenski. Here, the underlying hearing was not held to adjudicate a “charge made pursuant to Section 56-5-2930, 56-5-2933, or 56-5-2945.” Rather, it was held to adjudicate the propriety of a driver’s license suspension imposed pursuant to Section 56-5-2951(A). More importantly, unlike in Suchenski, there is an applicable statute – S.C. Code Ann. § 56-5-2951(F) (Supp. 2007) – that states that compliance with Section 56-5-2953 is not a relevant issue in hearings such as the one held below. Section 56-5-2951(F) provides in pertinent part:

The scope of the [implied consent] hearing is 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;

(3) refused to submit to a test pursuant to Section 56-5-2950; or

(4) consented to taking a test pursuant to Section 56-5-2950, and the:

(a) reported alcohol concentration at the time of testing was fifteen one-hundredths of one percent or more;

(b) individual who administered the test or took samples was qualified pursuant to Section 56-5-2950;

© tests administered and samples obtained were conducted pursuant to Section 56-5-2950; and

(d) the machine was working properly.

S.C. Code Ann. § 56-5-2951(F) (Supp. 2007).

Therefore, the Court finds that Suchenski is inapplicable to the present case. Rather, the Court concludes that S.C. Dep’t of Motor Vehicles v. Nelson, 364 S.C. 514, 613 S.E.2d 544 (Ct. App. 2005) governs here. In that case, a motorist was arrested for DUI. After the motorist complained of asthma, an ambulance was called to the arrest site. An emergency medical technician examined the motorist and reported that he was fine. The motorist was then taken to a detention center for a DataMaster test. Before the test was given, the motorist again complained of asthma and asked to be taken to the hospital. Law enforcement complied with his request. Afterwards, the motorist was transported back to the detention center. Upon returning to the detention center, the motorist was asked to submit to the DataMaster test, but refused. As a result, the motorist’s driver’s license was suspended pursuant to Section 56-5-2951(A). Thereafter, the motorist requested an administrative hearing to challenge his suspension. On review of the matter, the Court of Appeals reversed the circuit court’s decision to rescind the suspension. In doing so, the court acknowledged that law enforcement did not comply with Section 56-5-2953. Nonetheless, the court held that law enforcement’s noncompliance with Section 56-5-2953 did not warrant the rescission of the motorist’s administrative suspension. The court explained:

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 hearing officer determined that Nelson had been lawfully arrested, had been advised of his rights, and had refused to submit to the test offered in accordance with section 56-5-2950. The circuit court’s reversal of the hearing officer was outside the purview of the proper scope of review. Accordingly, we find the only relevant issues at the administrative hearing were not in dispute. The circuit court erred in considering the violation of the three-hour videotaping requirement.

Nelson, 364 S.C. at 526, 613 S.E.2d at 550.

Like the motorist in Nelson, in this case, Smith did not consent to testing. Therefore, the scope of the hearing was limited to whether Smith (1) was lawfully arrested, (2) was advised in writing of his § 56-5-2950 rights, and (3) refused to submit to the DataMaster test. Accordingly, because law enforcement’s compliance with Section 56-5-2953 was not a proper issue to be considered at the hearing, the DMVH hearing officer erred by rescinding Smith’s suspension based upon Trooper Hoffman’s failure to comply with that provision.

Smith nevertheless argues that Nelson differs “significantly” from the present case and therefore should not be followed. Specifically, Smith contends that, in Nelson, the Court of Appeals put “great emphasis” on the motorist being “the cause of the delay” in the administration of the breath test. However, the following passage from the Nelson decision makes clarifies that the Nelson court did not base its decision on the motorist’s actions:

[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. Had Nelson consented to the breath test, the efficacy of a conviction for violation of section 56-5-2930 or 56-5-2933 would have been called into question. Although the test was offered after the required three hours and no affidavit was offered, the hearing officer might still have considered the totality of the circumstances and found valid reasons for the Department’s failure to comply with the statute. In the instant case, the hearing officer may have found that Nelson himself created the dilemma by repeatedly requesting treatment-especially because medical personnel apparently found Nelson did not need assistance. However, as Nelson withheld his consent under section 56-5-2950, the Department’s noncompliance under section 56-5-2953 has no application to this case.

Nelson, 364 S.C. at 524, 613 S.E.2d at 549-550 (emphasis added). Thus, while the Nelson court noted that a tribunal might have “found valid reasons for the Department’s failure to comply with the statute [§ 56-5-2953],” it ultimately concluded that “the Department’s noncompliance under section 56-5-2953 has no application to this case.”

Accordingly, because Section 56-5-2951(F) limits the scope of an implied consent hearing to a handful of issues, none of which includes the issue of whether law enforcement complied with Section 56-5-2953, the DMVH hearing officer erred by rescinding Smith’s administrative suspension. Therefore, the DMVH’s Final Order and Decision must be reversed.

ORDER

IT IS THEREFORE ORDERED that the DMVH’s Final Order and Decision is REVERSED, and that the administrative suspension of Smith’s driver’s license shall be reinstated.

IT IS SO ORDERED.

______________________________

Ralph K. Anderson, III

Administrative Law Judge

September 8, 2008

Columbia, South Carolina