This matter is an appeal by the
South Carolina Department of Motor Vehicles (Department) from an Order of
Dismissal of the South Carolina Division of Motor Vehicle Hearings (DMVH). 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
Administrative Law Court (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.
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.
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 Act No. 128, 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.
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 refusal to submit to a breath test as required under
Section 56-5-2950(a). Pursuant to Section 56-5-2951(B)(2), Respondent
filed a request for an administrative hearing to challenge the suspension.
The DMVH issued a Notice of Hearing, which stated that Respondent’s hearing
would be held on February 13, 2006 at the Spartanburg DMV Office,
Spartanburg,
S.C.
Both the Department and Respondent were served with copies of this Notice of
Hearing. The DMVH hearing officer held the hearing, as scheduled, on
February 13, 2006. Because neither the Department, nor the arresting
officer, attended the hearing, the DMVH hearing officer entered an Order of
Dismissal against the Department pursuant to ALC Rule 23.
1. Does the caption accurately reflect the nature of this
action?
2. Did the Department of Motor Vehicle Hearings wrongfully
fail to notify law enforcement of the hearing?
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 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 result of any tests 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 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 Section 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 214-15. 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
Bell v. Burson, 402
U.S.
535, 539 (1971), the United States Supreme Court explained:
Once licenses are issued . . . their
continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves
state action that adjudicates important interests of the licensees. In such cases the licenses are not to be
taken away without that procedural due process required by the Fourteenth
Amendment.
Similarly, 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.
Therefore, 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).
Notification of Law Enforcement
On
January 20, 2006, the DMVH served both the Department and Respondent with a
Notice of Hearing setting forth the time, date and place of the hearing. The Department’s staff did not attend the
DMVH hearing. Nevertheless, the
Department argues that because Act No. 128, § 22, 2005 S.C. Acts 1503
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 the law enforcement involved in
Respondent’s arrest of the hearing.[6]
S.C.
Code Ann. § 1-23-660, as amended by Act No. 128, § 22, 2005 S.C. Acts 1503,
provides for the creation within the ALC of the South Carolina Division of
Motor Vehicles Hearings (DMVH). Effective
January 1, 2006, the duties, functions, and responsibilities of all hearing
officers and associated staff of the Department were transferred to the
DMVH. Importantly, as noted earlier, the
amended Section 1-23-660 requires the DMVH hearing officers to conduct hearings
in accordance with the Administrative Procedures Act (APA) and the ALC’s rules
of procedure.
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. 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
S.C. Code Ann. § 56-5-2951 (2006) 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 the arresting officer, as a witness for the Department, was similarly
served, the DMVH was not under any duty to do so and should not be responsible
for that function.
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.[7] 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. Notably, the Notice of Hearing was mailed to
the Department on January 20, 2006, and the hearing did not occur until February
13, 2006. Thus, the Department had
almost three weeks to request the name of the arresting officer from the DMVH
in the event that it did not have this information. However, there is no evidence that the Department
attempted to obtain this information from the DMVH. 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 its duty was misjudged.
In
addition, the Department also 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 the DMVH hearing officer committed
error by not notifying the arresting officer in this case. The DMVH hearing officer was only required to
notify the parties of the hearing – not the parties’ witnesses.
Having
found that the DMVH did not have a duty to notify the arresting officer in this
case, it is unnecessary to determine whether or not the DMVH failed to perform
this duty. This appeal must be
dismissed. Although, based on the
circumstances of this case, dismissal of this appeal may seem harsh, the
Department could have filed a motion to reconsider with the DMVH pursuant to
ALC Rule 29 (D), but chose not to do so. In Mictronics, Inc. v. S.C. Dep’t of Revenue, 345 S.C. 506, 548
S.E.2d 223 (Ct. App. 2001), the Court of Appeals held that under ALC Rule 29
(D) “[a]ny party may move for reconsideration of a final decision of an
administrative law judge in a contested case, subject to the grounds for relief
set forth in Rule 60(b)(1 through 5), SCRCP. . . .” Accordingly, the Department could have sought
a review upon the record as to whether there was “mistake,
inadvertence, surprise, or excusable neglect.” SCRCP 60(b)(1). Furthermore,
“where there is a good faith mistake of fact, and, no attempt to thwart the
judicial system, there is basis for relief.” 548 S.E. 2d at 226 (quoting, Columbia Pools, Inc. v. Galvin, 288
S.C. 59, 339 S.E.2d 524 (Ct. App. 1986)).
Here,
however, unlike the litigant in Mictronics, the Department did not make
a motion to reconsider this case under ALC Rule 29 (D), but rather appealed the
DMVH’s dismissal to the ALC.[9] Accordingly, I cannot now make a
determination regarding whether vacating the DMVH’s dismissal order is
appropriate under ALC Rule 29 (D). Issues
that are not raised by the parties nor ruled on by the trial court below are
procedurally barred from any appellate review. Food Mart v.
South Carolina Dep’t of
Health and Envtl. Control,
322 S.C. 232, 233, 471 S.E.2d 688, 688 (1996); Portman v. Garbade,
337 S.C. 186, 189-90, 522 S.E.2d 830, 832 (Ct. App. 1999).[10] Thus, although such a decision is appealable
to this Court for a review under the standards set forth in S.C. Code Ann. §
1-23-380 (2005), the DMVH is the tribunal that must make the initial
determination.
Moreover,
there is virtually no record for this Court to review with respect to this matter. For instance, except for the law enforcement
officer’s lack of attendance at the hearing, there is no evidence concerning
whether or not the arresting officer was notified of the hearing. There is also no evidence regarding whether
the Department and, in particular, the arresting officer were unreasonably
neglectful in prosecuting this case or whether the arresting officer actively
pursued the case.
The
insufficiency of the record is especially important, since ALC Rule 36(G)
provides that an “Administrative Law Judge will not consider any fact which
does not appear in the Record.” In Medlock
v. One 1985 Jeep Cherokee VIN 1JCWB7828FT129001, 322 S.C. 127, 470 S.E.2d
373 (1996), the South Carolina Supreme Court also addressed the issue of an
appellant’s failure to support its arguments in the record. The appellant argued civil forfeiture of her
vehicle was a violation of Double Jeopardy because she was acquitted of the
underlying criminal drug charges brought against her. The Court held that:
even if the issue were preserved, appellant has failed to
provide this court with the means to analyze the merits of her claim. Nowhere in the record on appeal, or in
anything submitted to this court, is there information regarding exactly what
she was indicted and tried for. It is
impossible to decide this issue without such information. The appellant has the burden of providing
this court with a sufficient record upon which to make a decision.
Id. at 132, 470 S.E.2d at 376. Other courts have further emphasized that it
is the burden of the Appellant to
provide an adequate record for review. See, e.g., Mulligan v.
Panther
Valley Property Owners
Ass'n, 766 A.2d 1186 (N.J. Super. Ct. App. Div. 2001) (a plaintiff who
fails initially to present sufficient evidence to the trial court is,
ordinarily, not entitled to a remand to cure that deficiency); Matter of
Estate of Peterson, 561 N.W.2d 618, 623 (N.D. 1997) (“The purpose of an
appeal is to review the actions of the trial court, not to grant the appellant
the opportunity to develop and expound on new strategies or theories.”); Versailles
Arms Apartments v. Granderson, 377 So.2d 1359, 1363 (La. Ct. App. 1979)
(“When appellant fails to do so, there is no basis for the appellate court to
determine whether the trial court erred in construing the evidence contrary to
appellant's contentions, and the judgment is usually affirmed on the basis that
the appellant failed to overcome the presumption of its correctness.”); Miskimen
v. Biber, 858 A.2d 806, 812 (Conn. App. Ct. 2004) (“Without an adequate
record, we can only speculate as to the basis for the trial court’s
decision. Our role is not to guess at
possibilities, but to review claims based on a complete factual record
developed by a trial court.”). Moreover,
even in instances in which
South
Carolina courts have remanded cases, the courts have
limited the remand to the existing record to avoid granting the litigants a
“second bite of the apple.” See, e.g., State v. Frey, 362 S.C. 511, 514, 608 S.E.2d 874, 876 (Ct.
App. 2005); Parker v. S.C. Pub. Serv. Comm’n, 288 S.C. 304, 307, 342
S.E.2d 403, 405 (1986).
The
quintessence of the above holdings was summed up in the justification given by S.C.
Supreme Court in Winesett v. Winesett, 287 S.C. 332, 333-34, 338 S.E.2d
340, 341 (1985), for its ruling held that a motion to reconsider must be filed with
the trial court before a party can appeal a default judgment . The Court held that:
An early justification for this rule was that a defendant who
does not appear and answer “has no status in court which will enable him to
appeal from the judgment rendered.” An additional justification is that a party
appealing a default judgment will ordinarily be precluded from raising any
issues on appeal because they were not first presented below. Finally, the appellant will often not be able
to meet his burden of providing this Court with a record sufficient to permit
an adequate review.
Id. at 333, 338
S.E.2d at 341 (citations omitted). Thus,
for these reasons, I cannot make a determination regarding whether or not the
arresting officer’s failure to attend the hearing was due to mistake,
inadvertence, surprise, or excusable neglect. Furthermore, remanding this case to the DMVH
for such a determination would essentially circumvent the appellate rules
discussed above which require an appellate court to make its determination
based solely on the record before it, and which preclude such a court from
considering issues that were not raised below. Accordingly, this Court would be exceeding its authority as an appellate
court to remand in this case.
In
conclusion, there is no question of the compelling state interest
involved in matters concerning the consumption of alcohol while driving on the
public ways. See Mackey v. Montrym, 443
U.S.
1, (1979). Furthermore,
South Carolina policy favors the
disposition of issues on their merits rather than
on technicalities. Mictronics, supra. However, the
Department chose to appeal the DMVH’s dismissal on the premise that DMVH
neglected its duties, rather than seek a reconsideration of the DMVH’s order
based upon “mistake, inadvertence, surprise, or excusable neglect.” Accordingly, it has abandoned the issue of
whether vacating the DMVH’s order is warranted under ALC Rule 29 (D). Therefore, this case must be dismissed.
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