ORDERS:
ORDER
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 Division of
Motor Vehicle Hearings (DMVH). The DMVH’s Final Order and Decision 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, the DMVH’s Final Order and Decision is
reversed 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. S.C. Dep’t. 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 . . . If the officer has reasonable grounds to believe that
the person is under the influence of drugs other than alcohol, the officer may
order that a urine sample be taken for testing.
Importantly, Section 56-5-2950(a) further
states:
No tests may be administered or samples obtained unless the
person has been informed in writing that: (1) he does not have to take the test
or give the samples, but that his privilege to drive must be suspended or
denied for at least ninety days if he refuses to submit to the tests and that
his refusal may be used against him in court; (2) his privilege to drive must
be suspended for at least thirty days if he takes the tests or gives the
samples and has an alcohol concentration of fifteen one-hundredths of one
percent or more; (3) he has the right to have a qualified person of his own
choosing conduct additional independent tests at his expense; (4) he has the
right to request an administrative hearing within thirty days of the issuance
of the notice of suspension; and (5) if he does not request an administrative
hearing or if his suspension is upheld at the administrative hearing, he must
enroll in an Alcohol and Drug Safety Action Program.
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 that
test must be immediately suspended. However, under S.C. Code Ann. § 56-5-2951(B)(2)
(2006), a motorist who has his license so suspended may request an
administrative hearing to challenge the suspension. The scope of the hearing
must be limited to whether the person: (1) was lawfully arrested or detained;
(2) was advised in writing of the rights enumerated in Section 56-5-2950; (3)
refused to submit to a test pursuant to Section 56-5-2950; or (4) consented to
taking a test pursuant to Section 56-5-2950, and: (a) the reported alcohol
concentration at the time of testing was fifteen one-hundredths of one percent
or more; (b) the individual who administered the test or took samples was
qualified pursuant to Section 56-5-2950; (c) the tests administered and samples
obtained were conducted pursuant to Section 56-5-2950; and (d) the machine was
working properly. S.C. Code Ann. § 56-5-2951(F) (2006)
However,
notwithstanding Section 56-5-2951(F), S.C. Code Ann. § 56-5-2950(e) (2006) also
provides:
Policies, procedures, and regulations
promulgated by SLED may be reviewed by the trial judge or hearing officer on
motion of either party. The failure to follow any of these policies,
procedures, and regulations, or the provisions of this section, shall result in
the exclusion from evidence any tests results, if the trial judge or hearing
officer finds that such failure materially affected the accuracy or reliability
of the tests results or the fairness of the testing procedure.
FACTS
On November 25,
2005, Officer C.H. Mace of the South Carolina Highway Patrol responded to a
report of an accident that had occurred just off of S.C. 49 in Union County , South Carolina. Upon reaching the scene of the accident, he met with
Respondent, who was the driver of one of the cars involved in the accident.
According to Officer Mace, Respondent appeared drowsy and her eyes were red. After
speaking with her about the accident, Officer Mace suspected that Respondent
was under the influence of “something.” He advised Respondent of her Miranda
rights and then administered field sobriety testing on Respondent. Based on
her poor performance, he arrested her for driving under the influence. He placed
her in his patrol car and asked her if she had been drinking. She stated that
she had not. He then transported Respondent to the Union County Sheriff’s
Department.
Upon reaching the
Union County Sheriff’s Department, Officer Mace read Respondent the implied
consent advisement form and gave her a copy. She consented to taking a breath
test. The test results indicated that Respondent’s blood alcohol level was .00%.
Officer Mace then advised Respondent that he was going to take her to the
hospital so that she could submit a urine sample. He gave her a second copy of
the implied consent advisement form for the urine test. Respondent refused to
submit a urine sample. Based on this refusal, Respondent was issued a written
Notice of Suspension pursuant to Section 56-5-2951(A).
Thereafter,
pursuant to Section 56-5-2951(B)(2), Respondent filed a request for an
administrative hearing to challenge the suspension. An administrative hearing
was held on January 26, 2006. At the hearing, Respondent’s attorney asked
Officer Mace if, prior to requesting the urine test, he had re-read the implied
consent advisement form to Respondent. Officer Mace testified that he had not
re-read the form to Respondent, but that, at the time he gave Respondent the
second copy of the implied consent advisement form, he explained to her,
“Here’s your implied consents in reference to your drug or your urine.” Respondent
did not testify at the hearing.
During
his closing argument, Respondent’s attorney argued that the failure by Officer
Mace to re-read the implied consent form was “in clear violation of the statute
and the codes and the [regulations] of the Department.” He also claimed that
Respondent was prejudiced by this violation because Respondent “has now
subjected herself to a suspension that she shouldn’t have when all she had to
do was go do a urinalysis.”
In his Final Order and Decision, the DMVH hearing officer
rescinded Respondent’s suspension. In doing so, he stated: “Respondent was
never read her Implied Consent Warning for the request of urine. Trooper Mace
failed to indicate the reason as to why he requested a urine test.” The Department now appeals.
ISSUES
ON APPEAL
1. Was it error for the DMVH hearing officer to rescind Respondent’s
suspension based on the fact that Respondent was not re-read the implied
consent advisement form prior to law enforcement’s request for a urine sample?
2. Should this case be remanded to the DMVH for a determination of whether
Respondent was prejudiced by the fact that Respondent was not re-read the
implied consent advisement form prior to law enforcement’s request for the
urine sample?
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, 641, 321 S.E.2d 63, 68 (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, Inc., 276
S.C. 130, 136, 276 S.E.2d 304, 307 (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. S.C. Land Resources
Conservation Comm’n, 321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996); Grant
v. S.C. Coastal Council, 319 S.C. 348, 353, 461 S.E.2d 388, 391 (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, 519, 466 S.E.2d 357, 359 (1996) (citing Kearse
v. State Health and Human Servs. Fin. Comm’n, 318 S.C. 198, 200, 456 S.E.2d
892, 893 (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. S.C. Coastal Council, 319 S.C.
348, 353, 461 S.E.2d 388, 391 (1995) (citing Gibson v. Florence Country Club, 282 S.C. 384, 386, 318 S.E.2d 365, 367 (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,
321 S.C. at 226, 467 S.E.2d at 917.
DISCUSSION
Propriety
of Section 56-5-2950 Rights Advisement
The Department argues that
the DMVH hearing officer erred in rescinding Respondent’s suspension based on
the fact that Officer Mace did not re-read the implied consent advisement
to Respondent prior to asking her to submit to urine testing. Respondent, on
the other hand, argues that a breath test is different than a urine test, and,
therefore, Officer Mace was required to re-advise Respondent of her implied
consent rights prior to the urine test. Moreover, Respondent argues that,
based on Taylor, it was not sufficient that Officer Mace provided
Respondent with a second copy of the implied consent advisement form prior to
requesting the urine test. According to Respondent, Taylor required
Officer Mace to re-read the implied consent advisement form to
Respondent.
Section 56-5-2950(a)
states that, before a breath test is administered, or a urine or blood sample
is obtained, a motorist must be advised in writing of her implied
consent rights. Moreover, Section 56-5-2951(F) states that, in refusal cases
such as this one, the scope of the administrative hearing must be limited to
whether the motorist: (1) was lawfully arrested or detained; (2) was advised in
writing of the rights enumerated in Section 56-5-2950; and (3) refused to
submit to a test pursuant to Section 56-5-2950. Here, the Respondent was
advised in writing before both the request for a breath test and the request
for a urine test. Thus, clearly Officer Mace properly advised Respondent of
her implied consent rights with respect to the urine test pursuant to Section
56-5-2950(a) and Section 56-5-2951(F), .
However,
notwithstanding Section 56-5-2951(F), the first sentence of Section 56-5-2950(e)
provides that a hearing officer may, on motion of either party, consider
SLED policies in rendering his decision. The SLED implied consent policy at
issue, policy 8.12.5(E)(1), states: “The advisement process consists of the
officer reading any applicable advisements and furnishing the motorist
with a copy.” (emphasis added). Nevertheless, even assuming that Respondent
made a proper motion to consider SLED implied consent policy 8.12.5(E)(1) at
the hearing, policy 8.12.5(E)(1) does not require that a motorist must be re-advised of her
implied consent rights after she submits to a breath test and before she is
asked to perform a urine test. Moreover, nothing in Section 56-5-2950(a) sets
forth that requirement.
Furthermore, in light
of the appellate Court’s decisions in City of Florence v. Jordan, 362
S.C. 227, 607 S.E.2d 86 (Ct. App. 2004) and Taylor, as well as the
second sentence of Section 56-5-2950(e), it is unnecessary for this Court to determine whether or not Officer Mace thoroughly
complied with SLED implied consent policy 8.12.5(E)(1). Instead, the question
this Court must answer is whether or not, looking at the situation as a whole,
Respondent was adequately informed of: (i) her right to refuse the urine test;
and (ii) the possible consequences arising from her decision to refuse or
proceed with the urine test. See Jordan, 362 S.C. at 233, 607
S.E.2d at 90. In making this determination, this Court must consider whether
or not Officer Mace’s alleged failure to comply with SLED policy affected
Respondent’s decision to refuse testing. See Taylor, 368 S.C. at
38, 627 S.E.2d at 754; see also S.C. Code Ann. § 56-5-2950(e)
(2006). If it is determined that the alleged violation had no effect on
Respondent’s decision, then the DMVH’s Order must be reversed. Taylor, 368 S.C. at 38, 627 S.E.2d at 754.
For instance, in Jordan, the motorist was prosecuted for driving under the influence. The motorist had
been given a copy of the implied consent advisement form and had been orally informed
that a breath test would be offered. However, on the advisement form, the
arresting officer failed to circle whether a “breath,” “blood,” or “urine”
sample would be requested from the motorist. The motorist moved to exclude the
results of the breath test, arguing that the officer’s failure to circle the
word “breath” resulted in an incomplete advisement under Section 56-5-2950. The
Court of Appeals reversed the circuit court’s decision affirming the motion to
suppress. In doing so, the Court of Appeals noted that:
Nowhere among the rights listed in section 56-5-2950 does it provide
the accused a right to be explicitly advised in writing what specific type of
test is being requested — be it blood, breath, urine, or any other test. Nor,
under the language of the statute, does the accused have to be advised in
writing that only one particular test is being requested to the express
exclusion of any other test. Indeed, the implied consent rights provided under
section 56-5-2950(a) inform the accused that he may refuse any test and refuse
to give any samples. The supposed violation in the present case, therefore, is
not connected to the implied consent rights set forth in section 56-5-2950(a)
as contended by Jordan. The violation, if indeed one exists, stems solely from
a failure to comply with SLED procedures.
Jordan, 362 S.C. at 231-32,
607 S.E.2d at 89. The court then discussed State v. Huntley, 349 S.C.
1, 5, 562 S.E.2d 472, 474 (2002) and Section 56-5-2950(e).
Importantly, the Court of Appeals interpreted the Huntley decision and
Section 56-5-2950(e) as follows:
As does Huntley, subsection (e) makes clear that the
decision to admit or exclude test results under section 56-5-2950 should not
turn solely on whether the prescribed procedures were followed with the most
exacting compliance. Instead, the question should be whether the violation
thwarted the clear policy objectives underlying the statute — that is, to
ensure suspects are informed of their rights to refuse any test and, if consent
is obtained, to ensure the tests are conducted in an accurate, reliable, and
fair manner.
Id. at 233, 607 S.E.2d at 89-90.
The court then
concluded that, under Huntley and Section 56-5-2950(e), the suppression
of the test results was not warranted:
In this case, neglecting to circle the
word “breath” on the SLED form has no bearing on the accuracy or reliability of
the breath test results, and Jordan does not contend otherwise; nor does the failure
in any way impact upon the fairness of the testing procedure. The purpose of
the SLED form is not to serve as the exclusive source of information regarding
the arrest and testing procedures provided to a person accused or suspected of
driving under the influence. Rather, it is designed to serve the limited — but
critically important — function of advising the accused in writing of his right
to refuse any test and inform him of the possible consequences arising from his
decision to refuse or proceed with any test. The failure to satisfy the
specific technical requirement at issue in this case — a requirement that is
beyond the scope of the statutory mandate of section 56-5-2950(a) — cannot,
therefore, render the advisement in the present case incomplete.
Id. at 233; 607 S.E.2d at
90.
At
the beginning of this year, the Court of Appeals also decided Taylor. In Taylor, a motorist’s driver’s license was suspended pursuant to
Section 56-5-2951(A) based on the motorist’s refusal to submit to chemical testing
after being arrested for driving under the influence. Although the arresting
officer read aloud to the motorist a form which set forth the motorist’s
implied consent rights, the officer did not provide the motorist with a written
copy of the form as is required under Section 56-5-2950(a). The motorist
subsequently requested a hearing to challenge the suspension. The Court of
Appeals ultimately reversed the circuit court decision to reinstate the
motorist license, relying heavily on the Huntley decision. Importantly,
the Taylor court interpreted Huntley as follows:
[In Huntley], the supreme court reversed the
suppression of the breathalyzer test results because the defendant was not
prejudiced by the statutory violation committed by the breathalyzer operator.
Consequently, the Huntley decision dictates that a violation of section
56-5-2950 without resulting prejudice will not lead to a suppression of the
evidence obtained pursuant to this section.
Taylor, 368 S.C. at 38, 627
S.E.2d at 754. The Court of Appeals then noted that the motorist did not argue
that he was not advised of his implied consent rights, or that he would have
provided a blood test if he had been advised of his implied consent rights in
writing. Id. Therefore, the Court concluded that the motorist was not
prejudiced by the fact that the arresting officer did not provide a written
copy of the implied consent advisement to the motorist. Id.
In sum, Jordan indicates that the implied consent advisory form sufficiently advises motorists
of their right to refuse any test and sufficiently informs them of the possible
consequences arising from their decision to refuse or proceed with any test.
If law enforcement does not need to designate on the implied consent advisory
form the type of test being requested, then it is doubtful that law enforcement
is required to fully re-advise motorists of their implied consent rights prior
to requesting a second type of test. Thus, based on Jordan, it would
appear that providing motorists with a simple reminder of their implied consent
rights is, at most, all that is necessary when subsequent testing is
requested. Moreover, even if a full re-advisement was required, then, pursuant
to Taylor, providing Respondent with a second copy of the implied consent
form was sufficient. If, absent a showing of prejudice by the motorist, an
oral advisement alone is sufficient to properly advise a motorist of her
implied consent rights, then a written advisement alone must also be sufficient
under the same circumstances. Notably, there is no indication in the statute
that oral advisements are held in higher regard than written advisements; in
fact, the contrary appears to be the case.
In the present case, even
if Officer Mace did not follow SLED implied consent policy 8.12.5(E)(1) with
“the most exacting compliance,” Respondent was still adequately informed of her
right to refuse urine testing and the consequences of so refusing. At the time
of the breath test, Respondent was advised, both orally and in writing, of her right
to refuse testing and the ramifications of choosing to do so. Moreover, prior
to being asked to submit a urine sample, Respondent was reminded of her right
to refuse testing and the consequences of so refusing when Officer Mace handed
her a second copy of the implied consent advisement form and explained to her,
“Here’s your implied consents in reference to your drug or your urine.” In
fact as a result of the officer’s advisement, Respondent refused to submit
to urine testing. Thus, she apparently understood that her right to refuse
testing applied to the urine test, even though Officer Mace did not re-read the
implied consent advisory form to Respondent prior to requesting the urine test.
Finally, Respondent did not testify at the hearing that she did not understand that
the statements contained in the implied consent advisory form applied to the
urine test or that she believed that, since she had submitted to a breath test,
she could refuse the urine test with impunity.
Based on these facts, I simply cannot conclude that Respondent did not realize that
the consequences of refusing testing, which Respondent was advised of several
times, applied to the urine test.
Appropriateness
of Remand
Respondent argues that,
if this Court determines that a finding of prejudice is necessary in order to
rescind the suspension, then this case must be remanded to the DMVH so that it
can determine if such a finding is appropriate. In making this argument,
Respondent cites the Court of Appeals’ decision in State v. Frey, 362
S.C. 511, 608 S.E.2d 874 (Ct. App. 2004). I disagree.
In Frey, a
motorist was convicted of driving under the influence based on the results of a
blood sample that was taken from him after he was involved in a motor vehicle
accident. On appeal of the conviction, the Court of Appeals determined that
the fact that an individual appeared in the emergency room wearing “hospital
like scrubs” did not provide sufficient evidence to prove that the blood sample
was collected by qualified medical personnel as was required by Section
56-5-2950(a). The Court, nevertheless, noted that the failure to follow Section
56-5-2950(a) can not result in the exclusion of the evidence unless “the trial
judge or hearing officer finds that such failure materially affected the
accuracy or reliability of the tests results or the fairness of the testing
procedure.” 608 S.E.2d at 878 (quoting Section 56-5-2950(e)). Therefore, since
the State’s failure to comply with Section 56-5-2950(a) was “inextricably connected
to the accuracy and reliability of the blood test results,” the Court elected
to remand the case. However, the Court determined that on remand,
consideration of prejudice should be based solely on the existing record. Id. at 518-19, 608 S.E.2d at 878-79.
As explained in Frye,
remanding this case for the taking of new evidence would improperly give the State
“a second bite of the apple.” See also Porter v. S.C. Public
Service Comm'n, 333 S.C. 12, 507 S.E.2d 328 (1998). Here, the motorist was
likewise fully able to present evidence of prejudice at her hearing. Furthermore,
the Frey decision notwithstanding, the Court has not always chosen, in
DUI related cases, to remand the issue of prejudice to the lower court. For
instance, the Court did not remand for a determination of potential prejudice
in Jordan, or even in Taylor. I find that this case is much
more analogous to Taylor than it is to Frey. In both cases (Taylor and the present case), the motorists were advised of their implied consent
rights in some fashion. Similarly, in both cases, the motorists argued that
the advisement was not proper because of a minor violation of either Section
56-5-2950 or SLED policy. Moreover, in both cases, testimony by the motorist
regarding whether he or she would have made a different decision had the
violation not occurred would have been the easiest, and most effective, way to
show that prejudice had occurred. However, the motorist offered no such
testimony in either case.
Therefore,
because the violation alleged here was, at best, very minor and because Respondent
did not present any evidence at the hearing to show that she was prejudiced by the
violation, there is simply no way that the DMVH hearing officer could properly
find prejudice based on the existing record. Thus, remanding this case to the
DMVH would be pointless.
ORDER
Because
the substantial rights of the Department have been prejudiced by the DMVH’s
improper rescission of Respondent’s suspension, it is hereby ordered that the
DMVH’s Final Order and Decision is REVERSED.
AND
IT IS SO ORDERED.
______________________________
Ralph
K. Anderson
Administrative
Law Judge
August 25, 2006
Columbia, South Carolina
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