ORDERS:
ORDER
STATEMENT
OF THE CASE
This
matter is an appeal by the South Carolina Department of Motor Vehicles
(Department) from a final decision of the South Carolina Department of Motor
Vehicle Hearings (DMVH). The Administrative Law Court (ALC) has jurisdiction
to hear this matter pursuant to S.C. Code Ann. § 1-23-660, as amended by S.C.
Act No. 128 of 2005, § 22.
BACKGROUND
This
matter is before the Administrative Law Court (ALC) pursuant to the appeal of
the South Carolina Department of Motor Vehicles (Department) of the Order of
Dismissal of the South Carolina Division of Motor Vehicle Hearings (DMVH),
dated February 9, 2006. The DMVH’s Order of Dismissal was issued in connection
with an administrative hearing that was held pursuant to S.C. Code Ann. §
56-5-2951(B)(2) (Supp. 2004). Under Section 56-5-2951(B)(2), a motorist whose
license is automatically suspended for either refusing to submit to testing in
violation of South Carolina’s implied consent law or driving with an alcohol
concentration of 0.15% or more may request an administrative hearing to
challenge the suspension. Importantly, prior to January 1, 2006, the
Department’s Office of Administrative Hearings (OAH) was intricately involved
in both the adjudication, as well as the prosecution, of matters relating to
the administrative suspension of a motorist’s driver’s license. For instance,
OAH hearing officers conducted hearings relating to these matters, and OAH
staff members notified law enforcement of such hearings. However, in the
summer of 2005, Act No. 128, § 22, 2005 S.C. Acts 1503 (Act) was signed by the
Governor and became effective. Pursuant to the Act, as of January 1, 2006, “the
duties, functions, and responsibilities of all hearing officers and associated
staff” of the Department were transferred to the DMVH.
FACTS
On
December 18, 2005, David Clyburn (Respondent) was arrested for driving a motor
vehicle while under the influence of alcohol. Respondent was issued a written
Notice of Suspension based on his alleged refusal to submit to a breath test as
required under South Carolina’s implied consent law, S.C. Code Ann. § 56-5-2950
(Supp. 2004). On January 13, 2006, pursuant to Section 56-5-2951(B)(2),
Respondent filed a request for an administrative hearing to challenge the
suspension. Respondent prepared this request by completing a form contained on
the reverse side of his Notice of Suspension. Pursuant to the directions
contained on the form, Respondent sent his request to the OAH. From there, it
was forwarded to the DMVH.
On
January 17, 2006, the DMVH issued a Notice of Hearing, which stated that
Respondent’s hearing would be held on February 8, 2006 at the Camden DMV. Both
the Department and Respondent were served with copies of this Notice of
Hearing. Subsequently, on February 7, 2006, the Department filed a petition
for continuance with the DMVH, in which it requested that the hearing be
continued until at least thirty (30) days after the Department “was notified”-
presumably by the DMVH - of information relating to the suspension of
Respondent’s license and the administrative hearing to be held regarding such
suspension.
Without first ruling on the Department’s petition for a continuance, the DMVH
hearing officer held the hearing, as scheduled, on February 8, 2006. Because
the arresting officer did not attend the hearing, the DMVH hearing officer
entered an Order of Dismissal against the Department pursuant to ALC Rule 23.
On
February 21, 2006, the DMVH hearing officer issued an order denying the
Department’s February 7th petition for a continuance. In his order,
the hearing officer concluded that “the Department is already in possession of
the information which is the basis for its request for a continuance.” To
support this conclusion, the hearing officer found that law enforcement provides
a copy of the Notice of Suspension to the Department, and that such document
sets forth the motorist’s name, address and driver’s license number, the reason
for the suspension, and the names of the arresting officer, the breath test
operator and their respective agencies. Moreover, the hearing officer also
found that “[t]he DMVH on a daily basis, electronically transmits the front and
reverse sides of the [Notice of Suspension] form . . . to the Department’s
Driver Records division.” As noted above, the reverse side of the Notice of
Suspension form contains the motorist’s hearing request. Finally, the hearing
officer asserted that the Department’s own computer database contains complete
driver records, including all identifying information for all violations
committed by an individual. Therefore, the hearing officer concluded that the
Department was sufficiently informed of the nature of the case to enable it to
proceed with the hearing.
ISSUE
ON APPEAL
Did
the DMVH hearing officer err in denying the Department’s petition for a
continuance?
DISCUSSION
The Department contends
that the hearing officer’s findings are “incorrect” by arguing that, “in a
large number of cases” it does not receive from the DMVH a copy of the Notice
of Suspension or a copy of the hearing 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). Additionally, Article I of the South
Carolina Constitution provides that the 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. Accordingly, in making an assessment
of whether or not to grant a continuance the hearing officer must seek to
insure the litigants receive “due process.”
Regrettably, it is
impossible for this Court to properly evaluate the accuracy of the hearing
officer’s findings. His stated reasons for denying the continuance are simply not
corroborated by any evidence in the record or by a lawful judicial notice
determination. In other words, the record does not support the hearing
officer’s findings regarding law enforcement or DMVH’s general procedure concerning
whether or not the Department was supplied with the documents it needed to
adequately prosecute this case.
Moreover, whether or
not the DMVH typically sends the Department copies of the Notice of
Suspension and the hearing request is not relevant here; what is relevant is
whether or not the Department was sent copies of the Notice of Suspension and
hearing request in this case. The Department maintains,
in its brief to this Court, that it did not actually receive the information
contained in its continuance request. Without question, it is crucial for the
Department to receive copies of the Notice of Suspension and the hearing
request. For instance, the Notice of Suspension contains essential information
such as the reason why the motorist’s license is being suspended, as well as the names of the arresting officer, the breath test operator, and
their respective employers. Similarly, the hearing request contains critical
information such as the date on which the hearing was requested and contact information for the motorist’s attorney.
Here, despite the clear
importance of the Notice of Suspension and the hearing request to the
Department, the hearing officer simply denied the Department’s petition for a
continuance without actually determining if the Department had in fact received
these documents. Instead, the hearing officer simply recited what the DMVH’s
general procedure was with respect to sending the Department copies of these
documents. The Department was thus denied the opportunity to defend its
request for a continuance. In addition, the Department’s request for
continuance was made after the process for conducting administrative hearings
for summary suspensions under Section 56-5-2951 had recently changed. It
appears that at least some of the OAH staff members who had been notifying law
enforcement of these hearings moved to the DMVH on January 1, 2006.
These facts warranted more circumspection by the hearing officer. Furthermore,
the Department was undoubtedly prejudiced by the hearing officer’s denial of
its petition, since it was unable to notify law enforcement of the hearing and,
thus, had the case dismissed against it. See, Palmetto Alliance,
Inc. v. S. C. Public Service Comm'n., 282 S.C. 430, 319 S.E.2d 695 (1984) (To
prove the denial of due process, a party must show that it has been
substantially prejudiced by the administrative process). For these reasons,
the hearing officer clearly abused his discretion in denying the Department’s
continuance petition.
In
conclusion, regardless of DMVH’s general procedure, if the Department requests
a continuance because it claims that it does not have the information contained
in the Notice of Suspension or the hearing request, the DMVH hearing officers
should not deny the continuance request without first confirming that the
Department received those documents. Although I have found for the Department
in this case, I advise the Department to treat the motorist, as well as the
DMVH, with greater respect in the future. For instance, the Department should
not inconvenience the motorist by waiting until the day before the hearing to
ask for a continuance when it does not receive the information that it needs
from the DMVH. The legislature has made it clear that these types of hearings
should occur promptly. See S.C. Code Ann. § 56-5-2951(F) (Supp. 2004)
(generally requiring that an administrative hearing be held within thirty (30)
days after the hearing request is received). Moreover, the ALC Rules make it clear that motions for continuances should not, except in rare
circumstances, be filed at the last moment. See, e.g., ALC Rule
19(A) (“[a]ll motions pertaining to the hearing shall be filed not later than
ten (10) days before the hearing date, unless otherwise ordered by the
administrative law judge”); ALC Rule 19(B) (generally requiring notice to be given to all parties before a
continuance motion is made or granted). In addition, the Department should
only request information from the DMVH that it cannot obtain on its own. The
employees of the DMVH are no longer affiliated with the Department and,
therefore, they should not be asked to perform information-gathering chores for
the Department. Although the Department’s conduct is excusable in this case
due to the newness of this process, such conduct will be much less forgivable
going forward.
ORDER
IT IS THEREFORE
ORDERED that the DMVH’s Order of Dismissal is reversed and the case is remanded
to the DMVH for a new hearing.
AND IT IS SO ORDERED.
______________________________
Ralph
King Anderson, III
Administrative
Law Judge
June 20, 2006
Columbia, South Carolina
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