ORDERS:
ORDER
STATEMENT
OF CASE
This
matter is an appeal by Appellant Brian Thomas Pinson 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). Pinson
contends that the DMVH hearing officer erroneously sustained his driver’s
license suspension for refusing to submit to a DataMaster test. Specifically,
Pinson argues that the hearing officer erred by considering hearsay testimony
and by refusing to grant Pinson a continuance in the matter. 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, and this matter is remanded to the
DMVH for a de novo hearing.
BACKGROUND
On December 30, 2006,
Officer Anderson of the Greenwood City Police Department (GCPD) was conducting
a driver’s license checkpoint with Officer Griffin and several other members of
the GCPD. At approximately 1:48 a.m., he observed a black SUV approach the
checkpoint. He stopped the vehicle and made contact with the driver, later
identified to be Pinson. While requesting Pinson’s driver’s license,
registration and insurance, Officer Anderson observed “a smell of alcoholic
beverage” emanating from Pinson. He then asked Pinson to pull over to the side
of the road. At that time, Officer Griffin approached. In the presence of
Officer Anderson, Officer Griffin questioned Pinson and performed field
sobriety tests on Pinson. Afterwards, Pinson was arrested for driving under
the influence (DUI) and was transported by Officer Anderson to a detention
center for a DataMaster test. Pinson was subsequently issued a Notice of
Suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (2006) for refusing to
submit to the DataMaster test.
In accordance with S.C.
Code Ann. § 56-5-2951(B)(2) (2006), Pinson filed a request with the DMVH for an
administrative hearing to challenge his suspension. The request was received
by the DMVH on January 8, 2007. On January 18, 2007, the DMVH mailed a Notice
of Hearing to all of the parties, informing them that the hearing was scheduled
for February 8, 2007. On February 1, 2007, Pinson filed a motion for a continuance
with the DMVH. In his motion, Pinson argued that he was entitled to a
continuance pursuant to S.C. Code Ann. § 25-1-2260 since he had recently
received orders from the State of South Carolina Military Department ordering
him to active duty beginning on January 8, 2007. Pinson attached the orders to
his motion. On February 2, 2007, the hearing officer denied Pinson’s motion.
She provided the following explanation:
In an administrative hearing, the general rule is that the
Respondent normally does not testify. If it is desired that the Respondent be
given the opportunity to present testimony, then a deposition of the Respondent
may be prepared, signed and certified. Then it may be introduced into the
record at the hearing. A hearing will not be rescheduled a year from
now.
On February 6, 2007,
Pinson again filed a motion for a continuance. In that motion, Pinson, relying
on S.C. Code Ann. § 1-23-320(a), argued that he was entitled to a continuance
since he had received less than thirty days notice of the hearing. The hearing
officer denied Pinson’s motion on February 7, 2008.
The
hearing was held as scheduled on February 8, 2007. Other than the DMVH hearing
officer, the only individuals who appeared at the hearing were Pinson’s
attorney and Officer Anderson. Pinson’s attorney did not offer into evidence a
deposition of Pinson. By a Final Order and Decision dated March 9, 2007, the DMVH
hearing officer sustained the administrative suspension of Pinson’s driver’s
license. Pinson now appeals.
ISSUES
ON APPEAL
1. Did the DMVH hearing
officer err by admitting hearsay testimony?
2. Did the DMVH hearing
officer err by denying Pinson’s February 1, 2007 request for a continuance?
3. Did the DMVH hearing
officer err by denying Pinson’s February 6, 2007 request for a continuance?
STANDARD OF REVIEW
The DMVH is authorized
by law to determine contested cases arising from the South Carolina Department
of Motor Vehicles (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;
(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) (as amended by 2008 S.C. Act No. 334).
DISCUSSION
A.
Hearsay
Pinson argues that the
hearing officer erred by admitting Officer Anderson’s testimony regarding what
Officer Griffin “said, did, observed, and her opinions from the time she
approached Mr. Pinson’s parked vehicle until she placed Mr. Pinson under
arrest.” Specifically, Pinson claims that this testimony constituted hearsay
and that “[t]he proper remedy is to exclude all evidence from the time Officer
Griffin approached Mr. Pinson’s parked vehicle until the BA videotape begins.”
Rule 801(c), SCRE,
defines hearsay as “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of
the matter asserted.”
According to our Supreme Court, “[w]here, regardless of the truth or the
falsity of a statement, the fact that it has been made is relevant, the hearsay
rule does not apply, but the statement may be shown.” Waites v. S.C.
Windstorm and Hail Underwriting Ass’n, 279 S.C. 362, 365, 307 S.E.2d 223,
225 (1983) (quoting 31A C.J.S. Evidence § 239). Thus, in cases where an
out-of-court statement is not offered to prove the truth of the matter asserted,
but merely to prove notice, the hearsay rule does not apply. Player v.
Thompson, 259 S.C. 600, 610, 193 S.E.2d 531, 535 (1972).
Before addressing
Pinson’s specific hearsay objections, it is important to note that, according
to Rule 601, SCRE, “[e]very person is competent to be a witness except as
otherwise provided by statute or these rules.” With regard to Officer
Anderson’s testimony, the only exception to Rule 601 that Pinson has ever suggested
might apply is Rule 602, SCRE, which provides in pertinent part:
A witness may not testify to a matter unless evidence is
introduced sufficient to support a finding that the witness has personal knowledge
of the matter. Evidence to prove personal knowledge may, but need not, consist
of the witness’ own testimony.
In this case, however, Officer
Anderson expressly testified that he witnessed everything that he testified
to. Therefore, it was correct for the hearing officer to presume that Officer
Anderson was a competent witness. On that note, the Court will now address Pinson’s
specific hearsay objections.
Card
Setting Forth Miranda Warnings
Beginning with the card
setting forth the Miranda warnings, the Court finds that its admission
into evidence did not constitute error. First, the statements on the card arguably
did not constitute assertions for the purposes of the hearsay rule. See Binder, supra §2.2 (warnings and instructions are generally not assertions for
the purposes of the hearsay rule). Second, even if these statements were
assertions, they were not offered to prove “the truth of the matter asserted”
(e.g., that Pinson had the right to remain silent). Rather, they were offered
to show that Pinson was notified of the Miranda warnings. For these
reasons, the hearing officer did not commit error by admitting the Miranda card into evidence.
Instructions
Regarding Field Sobriety Tests
For similar reasons,
the Court finds no error with respect to the admission of Officer Anderson’s testimony
regarding Officer Griffin’s instructions to Pinson about the field sobriety
tests. First, these instructions did not constitute assertions for the
purposes of the hearsay rule. See Binder, supra §2.2 (warnings and
instructions are generally not assertions for the purposes of the hearsay
rule). Second, even if these instructions were assertions, they were not
offered to prove “the truth of the matter asserted.” Rather, they were offered
to show that Pinson was given instructions on how to perform the field sobriety
tests.
Statement
Regarding Pinson’s Eyes and Speech
As to Officer
Anderson’s testimony that “Officer Griffin did advise me that [Pinson’s] eyes
were glassy in appearance and that . . . his speech was slurred,” that
testimony clearly fell within the hearsay rule. Officer Griffin’s statement
was an assertion, it was made out of court, and it was offered to prove the
truth of the matter asserted (i.e., that Pinson’s eyes were glassy and his speech
was slurred).
Nevertheless, it is not
clear that the hearing officer committed reversible error here. First, as an
initial matter, it is unclear whether the hearing officer admitted this
testimony into evidence. At no point did the hearing officer rule on Pinson’s
objection regarding this specific testimony. Moreover, the hearing officer did
not make a finding of fact regarding the condition of Pinson’s eyes or speech
on the night of his arrest.
Second, “trial errors
are harmless when they could not reasonably have affected the result of the
trial.” Gossett v. State, 300 S.C. 473, 478, 388 S.E.2d 804, 807
(1990).
Here, it is does not appear that the hearing officer relied on this evidence in
making her decision. As noted above, the hearing officer did not make a
finding of fact that Pinson’s eyes were glassy or that his speech was slurred.
Moreover, in concluding that the arrest was lawful, the hearing officer provided
the following explanation:
After review of the facts in this case and the applicable
law, I find and conclude that the Respondent was lawfully arrested for driving
under the influence. The Respondent was observed driving up to a traffic
safety checkpoint. The Respondent had an odor of alcohol beverage about his
person. The Respondent admitted to consuming three beers. The Respondent
wobbled and was unsteady on his feet during the performance of the field
sobriety tests.
Notably absent in this explanation
is any mention of the condition of Pinson’s eyes or speech. Moreover, the
Court notes that Pinson has not argued that the evidence mentioned in the above
explanation was insufficient to establish probable cause. Therefore, the
hearing officer did not committed reversible error with respect to this issue.
B.
February 1, 2007 Continuance Request
A motion for a
continuance is addressed to the sound discretion of the trial judge, and his
ruling will not be disturbed unless it clearly appears that there was an abuse
of discretion to the prejudice of the appellant. Williams v. Bordon’s, Inc.,
274 S.C. 275, 279, 262 S.E.2d 881, 883 (1980). Orders reversing a denial of a
continuance request “are about as rare as the proverbial hens’ teeth.” State
v. McMillian, 349 S.C. 17, 21, 561 S.E.2d 602, 604 (2002).
Pinson argues that the
DMVH hearing officer erred by failing to grant his February 1, 2007 request for
a continuance. Specifically, Pinson argues that, because he was called into
active military service prior to the hearing, he was entitled to a continuance
pursuant to S.C. Code Ann. § 25-1-2260. Section 25-1-2260 provides in
pertinent part:
It is the duty of a judge of a court of this State to
continue a case in the court on or without motion when a party to it or his
leading attorney is absent from court when the case is reached by reason of his
attendance on active duty as a member of the National Guard or reserves.
S.C. Code Ann. §
25-1-2260 (2007). The Department agrees that Pinson was entitled to a
continuance under Section 25-1-2260.
The Court concurs with
Pinson and the Department on this issue. Section 25-1-2260 demonstrates
a clear legislative intent for a continuance to be granted to a party who
cannot attend a court proceeding due to being called to active duty of the
National Guard or reserves. Additionally, Article I of the South Carolina Constitution
provides that petitioners “shall not be finally bound by a judicial or
quasi-judicial decision of an administrative agency affecting private rights
except on due notice and an opportunity to be heard....” S.C. Const. art. 1, §
22.
In this case, Pinson
was unable to appear at the administrative hearing due to being called for
active duty. The Court is hard-pressed to think of a better reason to grant a
continuance. Regardless of whether motorists do not typically testify at
implied consent hearings, all motorists should be given the opportunity to
attend the hearing and testify, if they so desire. Furthermore, the hearing
officer’s proposed solution to the problem – allowing Pinson to prepare a
deposition – was flawed. At the time that the hearing officer denied Pinson’s
continuance request, only six days remained before the hearing was scheduled to
commence. Six days is not sufficient time, under the South Carolina Rules of
Civil Procedure, to conduct a deposition. See Rules 30-31, SCRCP.
For these reasons, the
Court concludes that the hearing officer abused her discretion by denying Pinson’s
February 1, 2007 continuance request. Accordingly, this matter must be
remanded to the DMVH. Because of the Court’s ruling on this issue, it need not
consider whether the hearing officer erred by denying Pinson’s February 6, 2007
continuance request.
Review
on Remand
Pinson argues that, in
the event this Court decides to remand this matter, “the government should not
have a second opportunity to establish probable cause and should be limited to
the evidence in the record on appeal.” The Court disagrees.
Sections 1-23-380(5)
and 1-23-600(E) together authorize the ALC, in its appellate capacity, to
remand cases “for further proceedings.” A de novo hearing clearly constitutes
a “proceeding.” See Black’s Law Dictionary 1221 (7th ed.
1999) (defining “proceeding”). However, a party generally cannot submit
additional evidence in a case that has been remanded unless the appellate court
has given leave to submit that evidence. Piedmont Natural Gas Co., Inc. v. Hamm, 301 S.C. 50, 389 S.E.2d 655 (1990); Parker v. South Carolina Public Service
Commission, 288 S.C. 304, 342 S.E.2d 403 (1986). The courts have granted
such leave in instances in which an issue has not been finally decided by the
trial court or sufficiently addressed. Ferguson v. Charleston
Lincoln/Mercury, Inc., 344 S.C. 502, 510, 544 S.E.2d 285, 289 (Ct. App.
2001) (“As this issue has not been finally decided by the trial court, we
remand it for such a determination.”); Hamm v. S.C. Pub. Serv. Comm’n,
298 S.C. 309, 312, 380 S.E.2d 428, 430 (1989) (“Because the prudence issue
underlying the deratings was not directly addressed, the PSC's Order must be
remanded for the findings of fact required by Able Communications.”).
In making this determination, the trial court’s function of considering the
evidence to educate it as to the surrounding circumstances giving rise to the
issues raised must be considered. Sloan v. Greenville County, 356 S.C.
531, 562, 590 S.E.2d 338, 355 (Ct. App. 2003). The leave to submit additional
evidence nevertheless should be tempered by the objective to keep a party from
unfairly receiving a “second bite at the apple.” Therrell v. Jerry’s Inc.,
370 S.C. 22, 30, 633 S.E.2d 893, 897 (2006); State v. Frey, 362 S.C.
511, 514, 608 S.E.2d 874, 876 (Ct. App. 2005).
Here,
the Court concludes that leave to submit additional evidence is warranted.
First, it would be unfair to the government to prohibit it from responding to
any of the testimony that Pinson might offer at the hearing. Second, over a
year and a half has passed since the DMVH hearing, and thus the hearing officer
may not have a clear recollection of the hearing. See, e.g., Massey
v. City of Greenville Bd. of Zoning Adjustments, 341 S.C. 193, 202, 532
S.E.2d 885, 889 (Ct. App. 2000) (remanding case for a de novo hearing due to,
among other reasons, “the lapse of time between this opinion and the Board
hearing”). Third, the DMVH hearing officer previously found that Pinson was
lawfully arrested for DUI. While it possible that the hearing officer
considered the hearsay testimony regarding the condition of Pinson’s eyes and
speech in reaching that conclusion, this does not appear to be the case. For
these reasons, the Court concludes that the DMVH should conduct a de novo
hearing on remand.
ORDER
IT
IS THEREFORE ORDERED that the DMVH’s Final Order and Decision is REVERSED and that this matter shall be remanded to the DMVH for a de novo hearing; and
IT
IS FURTHER ORDERED that Pinson, upon being released from active duty, shall
promptly notify the DMVH of his release and that the DMVH shall promptly schedule
a de novo hearing in this matter upon the DMVH’s receipt of such notification.
AND
IT IS SO ORDERED.
______________________________
Ralph
King Anderson, III
Administrative
Law Judge
September 8, 2008
Columbia, South Carolina
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