ORDERS:
ORDER
STATEMENT
OF THE CASE
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 16, 2006. The DMVH’s Order of Dismissal was issued in
connection with an administrative hearing that it held pursuant to S.C. Code
Ann. § 56-5-2951(B)(2) (2006). The ALC has jurisdiction to hear this matter
pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2005). Upon consideration of the
briefs, this case is dismissed as set forth below.
BACKGROUND
“In South Carolina,
operating a motor vehicle is a privilege of the State, not a right of the
individual.” Taylor v. South Carolina Dept. of Motor Vehicles,
368 S.C. 33, 36, 627 S.E.2d 751, 753 (Ct. App. 2006). Consistent with this
principle, S.C. Code Ann. § 56-5-2950(a) (2006) provides that:
A person who drives a motor vehicle in this State is
considered to have given consent to chemical tests of his breath, blood, or
urine for the purpose of determining the presence of alcohol or drugs or the
combination of alcohol and drugs if arrested for an offense arising out of acts
alleged to have been committed while the person was driving a motor vehicle
while under the influence of alcohol, drugs, or a combination of alcohol and
drugs. A breath test must be administered at the direction of a law
enforcement officer who has arrested a person for driving a motor vehicle in
this State while under the influence of alcohol, drugs, or a combination of
alcohol and drugs.
Under S.C. Code Ann. § 56-5-2951(A)
(2006), the license of a motorist who refuses to submit to the above test or
who registers an alcohol concentration of 0.15% or more on such test must be immediately
suspended. However, under Section 56-5-2951(B)(2), the motorist may request an
administrative hearing to challenge such a suspension.
Importantly, prior to
January 1, 2006, the Department’s Office of Administrative Hearings (OAH) was
intricately involved in the adjudication, as well as the prosecution, of
matters relating to the suspension of a motorist’s driver’s license under
Section 56-5-2951. 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, S.C. Code Ann. § 1-23-660 was
extensively amended by Act No. 128, § 22, 2005 S.C. Acts 1503. Pursuant to the
amended Section 1-23-660, the DMVH was created as a division of the ALC and, 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. See S.C. Code Ann. § 1-23-660 (Supp. 2005). Importantly, the amended
Section 1-23-660 requires DMVH hearing officers to conduct their hearings in
accordance with the Administrative Procedures Act (APA) and the ALC’s rules of
procedure. Id.
FACTS
On January 1, 2006, Nathan
Hayes (Respondent) was arrested for driving a motor vehicle while under the
influence of alcohol. Upon a law enforcement officer’s request, he agreed to
submit to a breath test. Based on the results of the test, Respondent was issued
a written Notice of Suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (2006).
Thereafter, pursuant to Section 56-5-2951(B)(2), Respondent filed a request
for an administrative hearing to challenge the suspension.
On January 26, 2006,
the DMVH issued a Notice of Hearing, which stated that Respondent’s hearing
would be held on February 15, 2006 at the Camden DMV. The Notice of Hearing
also noted that “JA Borowski of Kershaw Highway Patrol” was the law enforcement
officer who was responsible for Respondent’s arrest. Both the Department and
Respondent were served with copies of this Notice of Hearing. Subsequently, on
February 10, 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
certain information relating to the suspension of Respondent’s license and the
administrative hearing to be held regarding such suspension.
This petition was copied to “JA Borowski Kershaw Highway Patrol.” Without
first ruling on the Department’s petition for a continuance, the DMVH hearing
officer held the hearing, as scheduled, on February 15, 2006. Because neither
the Department, nor Officer Borowski, attended 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 10th 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.” In support of 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,
including the hearing request and any other documents submitted by the
respondent, to the Department’s Driver Records division.” Finally, the hearing
officer found 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. The Department now appeals.
ISSUES
ON APPEAL
1. Did the caption used by the DMVH in its order accurately reflect the
nature of this action?
2. Did the DMVH err in denying the Department’s petition for a continuance?
3. Did the DMVH wrongfully fail to notify law enforcement of the hearing?
STANDARD OF REVIEW
The DMVH is authorized
by law to determine contested case hearings of the Department of Motor Vehicles. See S.C. Code Ann. § 1-23-660 (Supp. 2005). Therefore, appeals from the
decisions of the DMVH are properly decided under the Administrative Procedures
Act’s (APA) standard of review. In fact, Section 1-23-660 now provides that
all appeals from decisions of the DMVH hearing officers must be taken to the
ALC pursuant to the ALC’s appellate rules of procedure. Thus, the
Administrative Law Judge sits in an appellate capacity under the Administrative
Procedures Act (APA) rather than as an independent finder of fact. In South Carolina, the provisions of the APA -- specifically Section 1-23-380(A)(6) -- govern
the circumstances in which an appellate body may review an agency decision.
That section states:
The court may reverse or modify the decision 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(A)(6)
(2005).
A decision is supported
by “substantial evidence” when the record as a whole allows reasonable minds to
reach the same conclusion reached by the agency. Bilton v. Best Western
Royal Motor Lodge, 282 S.C. 634, 321 S.E.2d 63 (Ct. App. 1984). The
well-settled case law in this state has also interpreted the “substantial
evidence” rule to mean that a decision will not be set aside simply because
reasonable minds may differ on the judgment. Lark v. Bi-Lo, 276
S.C.130, 276 S.E.2d 304 (1981). The fact that the record, when considered as a
whole, presents the possibility of drawing two inconsistent conclusions from
the evidence does not prevent the agency’s findings from being supported by
substantial evidence. Waters v. South Carolina Land Resources Conservation
Comm’n, 321 S.C. 219, 467 S.E.2d 913 (1996); Grant v. South Carolina
Coastal Council, 319 S.C. 348, 461 S.E.2d 388 (1995).
In
applying the substantial evidence rule, the factual findings of the
administrative agency are presumed to be correct. Rodney v. Michelin Tire
Co., 320 S.C. 515, 466 S.E.2d 357 (1996), citing Kearse v. State
Health and Human Services Finance Comm'n, 318 S.C. 198, 456 S.E.2d 892
(1995). Furthermore, the reviewing court is prohibited from substituting its
judgment for that of the agency as to the weight of the evidence on questions
of fact. Grant v. South Carolina Coastal Council, 319 S.C. 348, 461
S.E.2d 388 (1995), citing Gibson v. Florence Country Club, 282
S.C. 384, 318 S.E.2d 365 (1984). Finally, the party challenging an agency
action has the burden of proving convincingly that the agency's decision is
unsupported by substantial evidence. Waters, supra, citing Hamm v. AT&T, 302 S.C. 210, 394 S.E.2d 842 (1994).
DISCUSSION
Amended
Caption
The
Department argues that the hearing officer incorrectly listed the Department as
the “Petitioner” in the caption of his order. The Department argues that,
since the motorist requested the administrative hearing, the motorist is the
“Petitioner.” Notably, this issue is fundamentally tied to the question of
which party bears the burden of proof in this case. In enforcement actions, to
clarify that the burden of proof lies with the agency, the caption is drafted
to reflect that the agency is the “Petitioner” and the party subject to the
enforcement is the “Respondent,” despite the fact that it was not the agency
that filed the request for a contested case hearing. See Randy R.
Lowell and Stephen P. Bates, South Carolina Administrative Practice
and Procedure 201 (2004). Thus, if the burden of proof in this case lies
with the Department, then it was proper for the hearing officer to list the
Department as the “Petitioner” in the caption of his order.
Interestingly,
in its Notice of Appeal, the Department claimed that the motorist, and not the
Department, bore the burden of proof in this case. However, in its brief, the
Department apparently dropped this claim, and simply argued that the caption
should be amended to reflect the proper standing of the parties. Nevertheless,
the caption issue cannot be resolved without first determining which party
bears the burden of proof in this case.
Generally
speaking, South Carolina law requires that the party that maintains “the
affirmative of the issue” bear the burden of proof. See Carter v. Columbia and Greenville R.R. Co., 1883 WL 4856, at * 6 (S.C. 1883). It could be argued
that, because Section 56-5-2951(A) mandates that the Department automatically suspend a motorist’s driver’s license when the motorist either refuses to
submit to a blood, breath or urine test or has an alcohol concentration of more
than 0.15%, the motorist is, in actuality, the party “maintaining the affirmative
of the issue” and, therefore, the burden of proof should be on the motorist.
Some state courts have come to such a conclusion. For instance, in Jess v.
State, Dept. of Justice, Motor Vehicle Div., 841 P.2d 1137 (Mont. 1992) overruled
on other grounds by Bush v. Mont. Dept. of Justice, Motor Vehicle Div.,
968 P.2d 716 (Mont. 1998), the Montana Supreme Court held, in an action for
reinstatement of a summarily suspended driver's license pursuant to Montana’s
implied consent law, that the burden was on the petitioning motorist to prove
that the suspension of the license was invalid.
In Jess, the statute providing for the review of suspended driver's
licenses did not state who had the burden of proof. Nevertheless, the Court
recognized that under Montana’s implied consent law there was a presumption of
correctness to the state’s action of suspension or revocation of a driver's
license until otherwise shown to be improper. Therefore, the Court held that
the “burden of proof falls upon the appellant to prove the invalidity of the State's
action, rather than require the State to justify its act of revocation.” 841
P.2d at 1140.
However,
in South Carolina there is no such presumption. In fact, S.C. Code Ann.
§56-5-2950(e) (2006) sets forth that if an officer fails to follow the policies,
procedures, or regulations promulgated by SLED, the results of any test shall
be excluded if the “hearing officer finds that such failure materially affected
the accuracy or reliability of the tests results or the fairness of the testing
procedure.”
Additionally,
in People v. Orth, 530 N.E.2d 210 (1988), the Illinois Supreme Court
considered whether placing the burden of proof upon the motorist whose license
was summarily suspended violated the due process of law. In making its
determination, the Court considered:
(1) the significance of the private interest which will be
affected by the official action, (2) the risk of the erroneous deprivation of
such interest through the procedures used, and probable value, if any, of
additional or substitute procedural safeguards, and (3) the significance of the
State interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural safeguards
would entail.
530 N.E.2d at 214. After
considering those factors, the Court held that placing the burden of proof upon
the suspended motorist did not violate his due process rights. Id. In reaching its decision, the Orth Court held that “however, our
conclusion is heavily influenced by our holding later in this opinion that the
State will have the burden of showing the reliability of test results if the
motorist first makes a prima facie showing that the results were unreliable.” See
also People v. Ullrich, 767 N.E.2d 411 (Ill. App. Ct. 2002).
To
the contrary, the ALC has consistently held that, in enforcement actions, the
agency is the moving party, and, therefore, the agency bears the burden of
proof. In fact, to clarify that state agencies bear the burden of proof in
enforcement actions, the ALC amended its rules of procedure in 1998 to add ALC
Rule 29(B), which states: “In matters involving the assessment of civil
penalties, the imposition of sanctions, or the enforcement of administrative
orders, the agency shall have the burden of proof.” (emphasis added.)
Thus, because the Department is actively seeking to enforce its suspension
order pursuant to Section 56-5-2951(A), it should bear the burden of proof.
Furthermore, the Montana and Illinois Supreme Courts notwithstanding, most state courts, in similar
situations, have concluded that the burden of proof should be placed on the
state agency that suspends the license. For instance, in Joyner v. Garrett,
182 S.E.2d 553 (N.C. 1971), Joyner refused to take a Breathalyzer test after
being arrested for operating a motor vehicle on a public highway while under
the influence of an intoxicant. Afterwards, the Department of Motor Vehicles notified
Joyner that his driving privilege was to be immediately revoked for sixty days
unless he requested an administrative hearing within three days. Upon Joyner’s
request, an administrative hearing was held and the hearing officer affirmed
the suspension. In a de novo hearing, the Superior Court, in confirming the
hearing officer’s decision, found that the burden of proof was on Joyner. On
appeal, the North Carolina Supreme Court held that the Department of Motor
Vehicles had the burden of proof at the administrative hearing, and that it also
had the burden of proof at the de novo hearing in the Superior Court. Id.
Other cases that
contain similar holdings include Harris v. Tex. Dep’t of Pub. Safety,
2005 WL 3359729 (Tex. App. 2005) (“To uphold a license suspension [pursuant to Texas’ implied consent law], an ALJ must find that [the Department of Public Safety] has
proven all elements of section 724.042 by a preponderance of the evidence.”); Spinner v. Dir. of Revenue, 165
S.W.3d 228 (Mo. Ct. App. 2005) (The burden of proof was on the Missouri
Director of Revenue to establish grounds for the suspension or revocation of
driving privileges); Willis v. State, 701 P.2d 10, 11 (Ariz. Ct. App.
1985) (in a proceeding involving an automatic driver’s license suspension for refusal
to submit to a breath test in violation of Arizona’s implied consent law, the
burden of proof was on the State); Ex parte Boykin, 643 So.2d 986, 987
(Ala. 1993) (in a proceeding involving a summary driver’s license suspension
for refusal to submit to a chemical test pursuant to Alabama’s implied consent
statute, the Alabama Supreme Court concluded that “the Department failed to
carry its burden of proof”); Sipes v. State ex rel. Dep’t of Pub. Safety,
950 P.2d 881 (Okla. Ct. App. 1997) (in a proceeding involving a driver’s
license suspension for refusal to submit to a chemical test in violation of Oklahoma’s
implied consent statute, the Oklahoma court held that the district court may review
the evidence “to decide whether [the Department of Public Safety] has in fact met
its threshold burden of proof”); Browning v. State ex rel. Dep’t of Pub.
Safety, 812 P.2d 1372 (Okla. Ct. App. 1991) (the Oklahoma Department of
Public Safety must prove compliance with the testing procedures used in the administration
of a breath test); Coombs v. Pierce, 2 Cal. Rptr. 2d 249 (1991) (California
DMV bore the burden of proof at an administrative proceeding to establish the
validity of breath test results); Cole v. Driver and Motor Vehicles Services
Branch, 87 P.3d 1120, 1131 (Or. 2004) (in a proceeding involving a summary
driver’s license suspension for driving with a blood alcohol concentration
above the legal limit, the Oregon Supreme Court held that the DMV bore the
burden of proof); Montpetit v. Comm’r of Pub. Safety, 392 N.W.2d 663,
667 (Minn. Ct. App. 1986) (the Minnesota Commissioner of Public Safety bore the
burden of proof in a proceeding involving a driver’s license suspension for
driving with a blood alcohol concentration above the legal limit).
Finally,
there are several policy reasons for placing the burden of proof on the
Department, and not the motorist. First, by placing the burden of proof on the
Department, the risk of erroneous suspension of the driver’s license is
lessened. See Orth, 530 N.E.2d at 215 (“State law enforcement
personnel are hardly likely to be lax in their breathalyzer procedures if they
know that they will have to prove the results or face the rescission of a
summary suspension.”). Second, driver’s licenses are quite important to
individuals and, therefore, the process of taking away a driver’s license
should not be taken lightly. For instance, in Berlinghieri v. Dep’t of
Motor Vehicles, 657 P.2d 383, 387-88 (Cal. 1983), the California Supreme
Court described in detail the practical importance of a driver's license:
In our present travel-oriented society,
the retention of a driver's license is an important right to every person who
has obtained such a license.... [T]he reality of contemporary society is that
public transportation systems may not meet the needs of many travelers and
other forms of transportation, such as taxicabs, are not economically feasible
for a large portion of the population. Whether a driver’s license is required
only for delivering bread, commuting to work, transporting children or the
elderly, meeting medical appointments, attending social or political functions,
or any combination of these or other purposes, the revocation or suspension of
that license, even for a six-month period, can and often does constitute a
severe personal and economic hardship.
Third, it simply
seems that the more just approach would be to require the State of South Carolina to establish the elements of a violation rather than to compel the motorist
to prove his innocence or risk suspension of his driver’s license. See Peabody
Coal Co. v. Ralston, 578 N.E.2d 751, 754 (Ind. Ct. App. 1991) (“Similar to
the rationale for affixing the ultimate burden of proof on the state in
criminal matters, it would be a fundamentally unfair procedure to shift the
burden of persuasion to one charged with a violation to prove his innocence.”).
Notably in this regard, it could be very difficult for a motorist to prove
certain Section 56-5-2951(F) elements, such as that the machine used to conduct
the blood, breath or urine test was working improperly.
For
these reasons, I find that the burden of proof should be placed on the
Department in cases involving summary driver’s license suspensions pursuant to
Section 56-5-2951(A). Therefore, because I find that the Department bore the
burden of proof in this case, it was not error for the DMVH hearing officer to
list the Department as the “Petitioner” in the caption of his order.
Denial
of Continuance Petition
The Department also claims
that the hearing officer’s denial of its continuance petition constituted an
error. Specifically, the Department contends that the findings contained in
the hearing officer’s February 21st order were “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. Moreover, the
Department maintains that it did not in fact receive the information contained
in its 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). To justify a continuance, the
moving party must show not only the absence of some material evidence but also
due diligence on his part to obtain it. Hudson v. Blanton, 282
S.C. 70, 74, 316 S.E.2d 432, 434 (Ct. App. 1984). Reversals of refusal of a
continuance are about as rare as the proverbial hens’ teeth. State v.
McMillian, 349 S.C. 17, 21, 561 S.E.2d 602, 604 (2002).
Notably, the hearing
officer’s findings regarding the DMVH’s general procedure for sending the
Department copies of the Notice of Suspension and the hearing request are not supported
by any evidence in the record or by a lawful determination to take judicial
notice. Therefore, it is impossible for this Court to properly evaluate the
accuracy of these findings. Nevertheless, an appellate court may affirm a
trial court’s decision for any reason appearing in the record. See I’On,
L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 526 S.E.2d 716 (2000). Here,
it is clear that the Department had knowledge of the name of the arresting
officer and the agency for which he worked. The Department’s continuance
petition was copied to “JA Borowski Kershaw HP,” and the Notice of Hearing stated
that “Respondent was arrested by JA Borowski of Kershaw HP.” By contacting Officer Borowski, the Department could have obtained almost all
of the information that it referenced in its continuance petition. Moreover,
the information that it could not obtain from Officer Borowski was not crucial
to the Department’s case. For instance, although it is generally important for
the Department to know the date on which the hearing request was filed, such knowledge
would not have helped the Department here. In addition, although being provided contact information for the Kershaw
Highway Patrol would have been helpful, the Department certainly could have
contacted Officer Borowski without this information. Therefore, because the
Department possessed the means to obtain the information that it needed to
properly prosecute this case without the help of the DMVH, I find that the DMVH
hearing officer did not abuse his discretion in denying the Department’s continuance
petition.
Notification
of Law Enforcement
Finally, the Department
argues that because the newly amended Section 1-23-660 transferred “the duties,
functions, and responsibilities of all hearing officers and associated staff”
of the Department to the DMVH, the DMVH had a duty, which it failed to perform,
to notify Officer Borowski of the hearing. Apparently, it is the Department’s
contention that the reason why Officer Borowski did not attend the hearing is
because he was not informed of it by the DMVH.
Generally speaking,
tribunals are only required to inform each party as to the time, date
and place of an upcoming hearing. See, e.g., Coogler v.
California Ins. Co. of San Francisco, 192 S.C. 54, 58, 5 S.E.2d 459, 461
(1939) (“It would seem to be plain, upon well-settled and fundamental
principles, that no order or judgment affecting the rights of a party to the
cause should be made or rendered without notice to the party whose
rights are to be thus affected, for otherwise a party would be deprived of his
day in Court.”). More importantly, S.C. Code Ann. § 1-23-320 (2005) provides
that in an APA contested case “all parties” must be afforded notice of the
hearing and an opportunity to be heard.[9]
A “party” is a “person or agency named or admitted as a party, or properly
seeking and entitled as of right to be admitted as a party.” S.C. Code Ann. §
1-23-310 (5) (2005). The Department, not the arresting officer, is the agency
that is charged with administering the State’s motor vehicle laws. S.C. Code
Ann. § 56-1-5 (2006). Neither the newly amended Section 1-23-660 nor Section
56-5-2951 sets forth that the arresting officer is a party to these types of
proceedings. Furthermore, nowhere in Section 1-23-320, or in the rest of the
APA, does it state that a party’s witnesses must be notified of the contested
case hearing by the tribunal holding the hearing.
Moreover, Section
1-23-320 also states that the ALC “shall, on application of any party to the
proceeding enforce by proper proceedings the attendance and testimony of
witnesses . . .” (emphasis added). Thus, the duty to secure the attendance of
witnesses falls on each party, and an administrative tribunal is only required
to get involved in that process if, and when, a party applies to it for assistance.
In fact, the recent separation of the functions of the Department and the DMVH
creates a more independent tribunal to review license suspensions. The
Department’s approach would have the impartial trier of fact become responsible
for securing the attendance of adverse witnesses, therefore, once again
blurring the lines between prosecutor and independent arbiter of the facts.
Therefore, though it does not appear that Officer Borowski, as a witness for
the Department, was served with notice of the hearing, the DMVH was not under
any duty to do so and should not be responsible for that function.
In fact, the reason for
Officer Borowski’s absence is far from clear. Notably, there is evidence in
the record that appears to demonstrate that Officer Borowski was, in fact,
notified of Respondent’s hearing. For instance, the Department’s continuance
petition indicates that a copy of such petition was sent to Officer Borowski.
Importantly, the continuance petition sets forth the date of the hearing, and
it also states that a copy of the Notice of Hearing was attached to it. Thus,
it is quite possible that Officer Borowski was adequately informed of the
hearing, but, for other reasons, did not attend it.
In its brief, the
Department also argues that in roughly half of the cases the Department is not
supplied with a Notice of Suspension, and, therefore, the Department cannot
easily ascertain who the arresting officer was. In contrast, the DMVH is
always provided with a copy of the Notice of Suspension. Thus, the Department
implies that it would be much easier for the DMVH to notify the applicable
officers. Although this may be true, it does not create the inference that the
DMVH was required to notify the arresting officer in this case. As previously
discussed, the Notice of Hearing, which was issued almost three weeks before
the hearing, contained the name of the arresting officer, as well as the name
of the law enforcement agency for which he worked. Thus, the Department
clearly had ample opportunity to notify the arresting officer of the hearing.
Moreover, because the duty to secure the attendance of the arresting officer
fell on the Department, its assumption that the DMVH would, or even should,
perform this duty was misjudged.
In addition, the Department
argues that it does not have the staff required to contact law enforcement of
upcoming hearings. In other words, the Department seeks to absolve itself of
its responsibility to notify its witnesses by contending that because it
allegedly has a shortage of staff, the DMVH should assume a responsibility not
conferred upon it by law. The Department’s desire to have the DMVH assume this
responsibility does not translate into a legal conclusion that DMVH hearing
officers committed error by not notifying the arresting officer in this case.
The DMVH hearing officers were only required to notify the parties of the
hearing – not the parties’ witnesses.
For these reasons, I
find that the DMVH did not have a duty to notify law enforcement of Respondent’s
hearing.[10]
ORDER
IT IS THEREFORE
ORDERED that this case is DISMISSED.
AND IT IS SO ORDERED.
______________________________
Ralph
King Anderson, III
Administrative
Law Judge
June 20, 2006
Columbia, South Carolina
Those elements are as follows: (1) reasonable
suspicion or probable cause existed to stop or arrest the person; (2) probable
cause existed to believe that the person was operating a motor vehicle in a
public place while intoxicated; (3) the person was placed under arrest by the
officer and was requested to submit to the taking of a specimen; and (4) the
person refused to submit to the taking of a specimen on request of the officer.
See Tex. Transp. Code Ann. § 724.042 (Supp. 2005).
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