ORDERS:
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 Office of Motor Vehicle Hearings (“OMVH”) issued on September 4, 2007. The OMVH’s Final Order and Decision, which rescinded the administrative suspension of Respondent’s driver’s license, was issued following a hearing held pursuant to S.C. Code Ann. § 56-5-2951 (2006 & Supp. 2006). The Department contends that, since Respondent never offered a suitable breath sample, the OMVH hearing officer erred by rescinding Respondent’s driver’s license based upon law enforcement’s failure to comply with SLED implied consent policy 8.12.5(L)(2)(f)(iv). 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 this matter, the OMVH’s Final Order and Decision is reversed.
BACKGROUND
On May 30, 2007, Trooper Q.D. Hallman of the South Carolina Highway Patrol arrested Respondent for driving under the influence (“DUI”) and transported her to the Lexington County Jail for a DataMaster test. Upon reaching the Lexington County Jail, Trooper Hallman advised Respondent of her implied consent rights. After time stamping the DataMaster ticket and waiting twenty minutes, Trooper Hallman offered Respondent an opportunity to provide a breath sample. Respondent attempted to provide a sample, but the DataMaster machine produced an “Invalid Sample” reading. Trooper Hallman moved to another machine and offered Respondent a second opportunity to provide a breath sample. Respondent stated that she was unwilling to provide another sample. Trooper Hallman then suspended Respondent’s driver’s license pursuant to S.C. Code Ann. § 56-5-2951(A) (2006) for refusing to submit to a breath test.
Respondent subsequently requested an administrative hearing to challenge her suspension. The hearing was held on August 6, 2007 before an OMVH hearing officer. During cross-examination, Trooper Hallman admitted that he violated SLED implied consent policy 8.12.5(L)(2)(f)(iv) by failing to observe a second twenty-minute waiting period prior to offering Respondent the second breath test.
On September 4, 2007, the OMVH hearing officer issued a Final Order and Decision rescinding the suspension of Respondent’s driver’s license. Although the hearing officer found that Respondent was lawfully arrested for DUI and that she was advised of her implied consent rights, he rescinded Respondent’s suspension on the grounds that Trooper Hallman failed to comply with SLED implied consent policy 8.12.5(L)(2)(f)(iv). The Department now appeals.
ISSUE ON APPEAL
In light of the fact that Respondent refused to submit to the second breath test, did the OMVH hearing officer err by rescinding Respondent’s suspension on the grounds that Trooper Hallman failed to comply with the observation period requirement of SLED implied consent policy 8.12.5(L)(2)(f)(iv)?
STANDARD OF REVIEW
The OMVH is authorized by law to determine contested cases arising from the Department. 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
The Department argues that, since Respondent refused to submit to the second breath test, the OMVH hearing officer erred by considering whether Trooper Hallman complied with the observation period requirement of SLED implied consent policy 8.12.5(L)(2)(f)(iv). The court agrees.
SLED implied consent policy 8.12.5(L)(2)(f)(iv) provides in pertinent part: “If an ‘Invalid Sample’ . . . reading is obtained and the arresting officer still desires a breath test, the checking of the mouth, time stamp, and observation period are required to be repeated.” SLED ICP 8.12.5(L)(2)(f)(iv) (revision date November 1, 2006).
Under the plain language of SLED implied consent policy 8.12.5(L)(2)(f)(iv), the three procedures set forth therein must only be repeated if “the arresting officer still desires a breath test.” In a refusal situation, there is no completed breath test. Moreover, SLED implied consent policy indicates that the objective of the observation period requirement is to ensure that test results, if obtained, are accurate. For instance, SLED implied consent policy 8.12.5(J)(1) states that “[t]he purpose of the observation period is to allow for the deprivation of mouth alcohol.” SLED ICP 8.12.5(J)(1) (revision date November 1, 2006). While the level of alcohol in a motorist’s mouth at the time of breath testing has bearing on the accuracy of the results of a completed breath test, it is unrelated to the issues involved in a refusal case.
In fact, other provisions of SLED implied consent policy make it clear that the observation period requirement need not be followed in refusal situations. For instance, SLED implied consent policy 8.12.5(J)(3) states that:
Except in refusals, there will be a minimum of twenty minutes between the time stamp and the time listed by the subject’s sample on the evidence ticket.
SLED ICP 8.12.5(J)(3) (revision date November 1, 2006) (emphasis added). Additionally, SLED implied consent policy 8.12.5(I)(1) provides that:
A DataMaster will be used to time stamp the SLED evidence ticket to denote the beginning of the observation period unless a refusal has already occurred. In this case, a time stamp is not necessary.
SLED ICP 8.12.5(I)(1) (revision date November 1, 2006) (emphasis added). If the time stamp requirement need not be followed in refusal situations, then it is eminently reasonable to conclude that the twenty-minute observation period requirement need not be followed either. After all, the very purpose of the time stamp requirement is to establish that law enforcement complied with the observation period requirement.
Finally, it must be noted that a nearly identical issue was addressed by the Court of Appeals in Ex parte Horne, 303 S.C. 30, 397 S.E.2d 788 (Ct. App. 1990). In that case, a motorist appealed the Department’s decision to suspend his driver’s license under the State’s implied consent law for refusing to submit to a breath test. The motorist argued that the breath test operator did not make a lawful offer of a breath test since the operator failed to observe him for twenty minutes before requesting that he submit to the test, in violation of SLED guidelines. The Court of Appeals rejected the motorist’s argument, explaining:
Horne’s contention has no merit for the simple reason that he was not given a breath test. . . . The question of the validity of test methods employed by a breath test operator does not arise until a test is given and its results are offered as evidence. We therefore hold the Department can suspend the driver’s license of a person arrested for driving under the influence where the person refused a request to submit to a breath test notwithstanding the absence of proof that the person who made the request observed the accused for 20 minutes prior to making the request.
Id. at 32, 397 S.E.2d at 790-91. Thus, Horne holds that the issue of whether law enforcement complied with SLED policy’s twenty-minute observation period requirement is not pertinent in implied consent cases where the motorist refused testing. Although the Horne decision did not involve an interpretation of the particular SLED implied consent policy at issue here – SLED implied consent policy 8.12.5(L)(2)(f)(iv) – the reasoning of Horne is nevertheless applicable to the present case.
For these reasons, the court concludes that a law enforcement officer’s failure to comply with the twenty-minute observation period requirement of SLED implied consent policy 8.12.5(L)(2)(f)(iv) does not preclude the suspension of a motorist’s driver’s license for refusing to submit to a breath test under Section 56-5-2951(A).
ORDER
IT IS THEREFORE ORDERED that the OMVH’s Final Order and Decision is REVERSED.
AND IT IS SO ORDERED.
______________________________
Carolyn C. Matthews
Administrative Law Judge
June 8, 2009
Columbia, South Carolina
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