ORDERS:
AMENDED ORDER OF DISMISSAL
This matter is an appeal by Appellant Nicholas R. McGill from an Order Denying Motion to Reconsider issued by the South Carolina Office of Motor Vehicle Hearings (OMVH) on March 9, 2007. The Order Denying Motion to Reconsider was issued after Appellant moved for reconsideration of an OMVH order dismissing Appellant’s implied consent case pursuant to ALC Rule 23 due to Appellant’s failure to appear at the OMVH hearing. Appellant contends that the case should have been dismissed in favor of Appellant, rather than the State, since all of the parties failed to appear at the OMVH hearing. The Administrative Law Court (ALC) has jurisdiction to review this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2008). Upon consideration of the briefs, the OMVH’s Order Denying Motion to Reconsider is affirmed.
BACKGROUND
On March 31, 2006, Officer J.P. Smith of the Columbia Police Department arrested Appellant for driving under the influence (DUI) and transported him to a detention center for a DataMaster test. Appellant’s driver’s license was subsequently suspended pursuant to S.C. Code Ann. § 56-5-2951(A) for refusing to submit to the test.
Pursuant to S.C. Code Ann. § 56-5-2951(B)(2), Appellant filed a request with the OMVH for an administrative hearing to challenge his suspension. The OMVH scheduled Appellant’s hearing for June 28, 2006. On the date of the hearing, none of the parties appeared. As a result, on July 11, 2006, Administrative Hearing Officer Tracy Holland (AHO Holland) issued an Order of Dismissal under ALC Rule 23 dismissing the case adverse to Appellant.
Thereafter, Appellant moved to reopen the case on the grounds that neither he nor his attorney received notice of the hearing. On December 11, 2006, AHO Holland issued an order granting Appellant’s motion. On December 12, 2006, the OMVH issued a Notice of Hearing notifying the parties that a new hearing would be held on January 16, 2007 before Administrative Hearing Officer Robert Harley (AHO Harley). Once again, on the date of the rescheduled hearing, none of the parties appeared. On January 18, 2007, AHO Harley issued an Order of Dismissal dismissing the case adverse to Appellant pursuant to ALC Rule 23.
On January 29, 2007, Appellant filed a Motion to Reconsider with the OMVH. Appellant’s sole argument was that the case should have been dismissed in favor of Appellant since the State, which bears the burden of proof in implied consent cases, did not appear at the hearing. On March 9, 2007, AHO Harley denied Appellant’s Motion to Reconsider. Appellant now appeals.
ISSUE ON APPEAL
Did AHO Harley err by denying Appellant’s Motion to Reconsider?
STANDARD OF REVIEW
The OMVH is authorized by law to determine contested cases arising from the Department of Motor Vehicles (DMV). See S.C. Code Ann. § 1-23-660 (Supp. 2008). Therefore, the OMVH is an “agency” under the Administrative Procedures Act (APA). See S.C. Code Ann. § 1-23-505(2) (Supp. 2008). As such, the APA’s standard of review governs appeals from decisions of the OMVH. See S.C. Code Ann. § 1-23-380 (Supp. 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 – including the ALC – to review agency decisions is provided by S.C. Code Ann. §1-23-380(5) (Supp. 2008). See S.C. Code Ann. § 1-23-600(E) (Supp. 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) (Supp. 2008).
DISCUSSION
South Carolina’s Implied Consent Laws
The license to operate a motor vehicle upon the public highways of this State is not a right, but a privilege that is subject to reasonable regulations in the interests of public safety and welfare. State v. Newton, 274 S.C. 287, 294, 262 S.E.2d 906, 910 (1980). This privilege is always subject to revocation or suspension for any cause relating to public safety. S.C. State Hwy. Dep’t v. Harbin, 226 S.C. 585, 595, 86 S.E.2d 466, 470 (1955). However, it cannot be revoked arbitrarily or capriciously. Id.
Consistent with these principles, the General Assembly enacted S.C. Code Ann. § 56-5-2950 and S.C. Code Ann. § 56-5-2951. Section 56-5-2950 declares that a motorist arrested for DUI implicitly consents to a chemical test of his breath, blood or urine for the purpose of determining the presence of alcohol or drugs, and it requires that, at the direction of the arresting officer, a breath test be administered to a motorist so arrested. S.C. Code Ann. § 56-5-2950(a). Section 56-5-2951, in turn, mandates that the driver’s license of a motorist who refuses to submit to a test required by Section 56-5-2950 be immediately suspended. See S.C. Code Ann. § 56-5-2951(A). Section 56-5-2951 nevertheless grants motorists the right to request an administrative hearing to challenge such suspensions. See S.C. Code Ann. § 56-5-2951(B)(2). If the motorist does not request an administrative hearing, he waives his right to a hearing, and his suspension must continue for the period set forth in Section 56-5-2951(I). See S.C. Code Ann. § 56-5-2951(D).
Appellant’s Motion to Reconsider
Appellant argues that AHO Harley erred by denying his Motion to Reconsider since the State also defaulted by failing to appear at the OMVH hearing. According to Appellant, the case should have been dismissed adverse to the State given that the State, which bears the burden of proof in implied consent matters, presented no evidence at the hearing. The court disagrees.
ALC Rule 23, which was applicable to the OMVH proceeding under S.C. Code Ann. § 1-23-660 (Supp. 2006), provides in pertinent part:
The administrative law judge 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 judge or fails to comply with any interlocutory order of the administrative law judge.
(emphasis added). Here, it is undisputed that Appellant failed to appear at the administrative hearing without the proper consent of AHO Harley. Thus, AHO Harley clearly had the authority, under ALC Rule 23, to dismiss the case adverse to Appellant. Importantly, unlike its treatment of the DMV, the General Assembly has not carved out an exception to ALC Rule 23 for motorists.
Nevertheless, Appellant essentially contends that the State is required to go forward with its case even in situations where the motorist does not appear at the administrative hearing. The court disagrees. ALC Rule 23 does not contain or reference such a requirement, and Appellant has not cited any legal authority (other than authority regarding the burden of proof in implied consent cases) to support his argument. Moreover, while it is true that ALC Rule 29(B) does place the burden of proof on the State in implied consent cases, nothing in the ALC Rules suggest that ALC Rule 29(B) was intended to limit a hearing officer’s authority under ALC Rule 23 to dismiss a case adverse to a defaulting party.
Furthermore, in light of the fact that the State is not required to present a prima facie case for suspension in situations where the motorist does not request an administrative hearing, the court sees no reason why the State should be required to do so in cases where the motorist does not appear at the hearing. In both situations, it is clear that the motorist is not going to present a defense. Additionally, the motorist’s ability to appeal the hearing officer’s decision on the merits of the State’s case would be severely limited due to the motorist’s failure to appear and raise issues at the administrative hearing. Thus, imposing such a requirement would undoubtedly result in a waste of judicial resources in many cases.
Finally, while Appellant argues that the hearing notice did not warn him of the consequences of failing to appear at the hearing, the ALC Rules certainly did so. Moreover, it is rather disingenuous for Appellant to imply that he was not aware that his failure to appear at the hearing would lead to dismissal, since this case was previously dismissed on that very basis.
IT IS THEREFORE ORDERED that the OMVH’s Order Denying Motion to Reconsider is AFFIRMED.
IT IS SO ORDERED. ______________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
June 3, 2009
Columbia, South Carolina
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