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) dated January 11, 2006. The DMVH’s Final Order
and Decision was issued after an administrative hearing 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 Department’s brief, the DMVH’s Final Order and Decision is reversed as set forth below.
“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 in pertinent part:
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.
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 a test required under Section 56-5-2950(a) must be immediately
suspended. However, under Section 56-5-2951(B)(2), a motorist who has his
license so suspended may request an administrative hearing to challenge the
suspension. If such a hearing is requested, 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; and (3)
refused to submit to a test pursuant to Section 56-5-2950. S.C. Code Ann. §
56-5-2951(F) (2006).
On November 12, 2005, Respondent
was arrested by Officer L.V. Gillepsie of the South Carolina Highway Patrol for
driving under the influence. Respondent was issued a written Notice of
Suspension pursuant to Section 56-5-2951(A) based on his refusal to submit to a
breath test as required by Section 56-5-2950(a). Thereafter, pursuant to
Section 56-5-2951(B)(2), Respondent filed a request for an administrative
hearing to challenge the suspension. The hearing was held before a DMVH
hearing officer on January 11, 2006. At that hearing, Officer Gillepsie testified
regarding whether Respondent was properly advised of his Section 56-5-2950(a)
rights, as follows:
I placed [Respondent] under arrest
and escorted him down to Charleston County Detention Center. And at the time I
read him his rights, (inaudible), and also read him the Miranda rights and I gave him the paper so that he can read it also.
No other testimony was provided on
this issue at the hearing. Officer Gillepsie was not cross-examined on this
issue, and Respondent did not testify at the hearing.
In her Final Order and
Decision, the DMVH hearing officer found that Officer Gillepsie advised
Respondent of “his rights relevant to taking the test.” However, she
ultimately rescinded Respondent’s suspension, explaining:
There was no evidence or testimony that the Officer
advised Respondent of the Implied Consent Advisement in writing. There being
no evidence corroborating the investigating officer’s testimony concerning the
Advisement of the Implied Consent, I conclude as a matter of law that the
Petitioner has failed to meet its burden of proof. Accordingly, the relief requested
by the respondent must be granted.
The Department
now appeals.
ISSUE
ON APPEAL
Did the DMVH hearing officer err in rescinding Respondent’s
suspension on the basis that Respondent was not advised in writing of his Section
56-5-2950(a) rights?
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(a) Rights Advisement
The Department argues that,
based on the testimony of Officer Gillepsie, the DMVH hearing officer erred in
finding that the Respondent was not advised in writing of his Section 56-5-2950(a)
rights. I agree.
Here, after testifying that
he read Respondent both “his rights” and the Miranda rights, Officer
Gillepsie testified that he “gave [Respondent] the paper so that he can read it
also.”
Apparently, the DMVH hearing officer construed this testimony to mean that the
paper that Officer Gillepsie gave to Respondent set forth the Miranda warnings, but did not include the Section 56-5-2950(a) rights. However, the
only reasonable interpretation of Officer Gillepsie’s testimony is that the
paper given to Respondent was the “Advisement of Implied Consent Rights” form,
which is issued by the South Carolina Law Enforcement Division (SLED) and which
sets forth the rights enumerated in Section 56-5-2950(a). The use of this form
by South Carolina law enforcement officers is well documented. See, e.g., Florence v. Jordan, 362 S.C. 227, 229-30, 607 S.E.2d 86, 87-88
(Ct. App. 2004) (noting that motorist was given a copy of the SLED-issued “Advisement
of Implied Consent Rights” form and setting forth the information contained in the
form); Sponar v. S.C. Dep’t of Pub. Safety, 361 S.C. 35, 36-37, 603
S.E.2d 412, 413 (Ct. App. 2004), cert. granted on November 17, 2005
(noting that motorist was advised of his “implied consent rights” when a law
enforcement officer read them verbatim from the advisement form provided by
SLED and gave the motorist a copy of the form); Taylor, 368 S.C. at 35,
627 S.E.2d at 752 (noting that motorist refused to sign “the implied consent
form”); State v. Horton, 359 S.C. 555, 560, 598 S.E.2d 279, 282 (Ct.
App. 2004) (noting that motorist signed an “implied consent form” before a
urine sample was collected). Moreover, nothing in Section 56-5-2950(a), or in
any applicable legal precedent for that matter, requires law enforcement officers
to provide motorists with a written copy of the Miranda warnings.
On the other hand, Section 56-5-2950(a) clearly does require law
enforcement officers to provide motorists with a written copy of the rights set
forth in Section 56-5-2950. Furthermore, pursuant to Section 56-5-2951(F), the
scope of the administrative hearing in cases such as this one is limited to
only three issues, one of which is whether the motorist was advised of his Section
56-5-2950(a) rights in writing. Certainly, it would be quite strange for
Officer Gillepsie to testify that he provided Respondent with a written copy of
the Miranda warnings (a fact that is irrelevant to the hearing), but to
fail to testify that he provided Respondent with a written copy of the Section
56-5-2950(a) rights (a fact quite relevant to the hearing). Therefore, the only
reasonable interpretation of Officer Gillepsie’s testimony is that the paper
that he gave Respondent was the “Advisement of Implied Consent Rights” form.
Additionally,
Respondent did not present any evidence that contradicted, or questioned the meaning
of, Officer Gillepsie’s testimony regarding this issue. Therefore, Officer Gillepsie’s uncontroverted testimony legally established
that Respondent was advised of his Section 56-5-2950(a) rights in writing. See, e.g., State v. Goodstein, 278 S.C. 125, 292 S.E.2d 791 (S.C.
1982) (holding that the uncontroverted testimony of an arresting officer alone was
sufficient to prove that the arresting officer had probable cause to arrest a
motorist for driving under the influence); see also Mackey v.
Montrym, 443 U.S. 1, 14 (1979) (“The officer whose report of refusal
triggers a driver’s suspension is a trained observer and investigator . . .
And, as he is personally subject to civil liability for an unlawful arrest and
to criminal penalties for willful misrepresentation of the facts, he has every
incentive to ascertain accurately and truthfully report the facts.”). Consequently,
the DMVH hearing officer’s finding that Respondent was not advised in writing
of his Section 56-5-2950 rights was not supported by substantial evidence.
Furthermore, even if the
DMVH hearing officer’s interpretation of Officer Gillepsie’s testimony was
correct and Respondent was not advised in writing of his Section 56-5-2950(a)
rights, the hearing officer nevertheless erred in rescinding the motorist’s
suspension. In Taylor, supra., a motorist’s driver’s license was
suspended pursuant to Section 56-5-2951(A) based on the motorist’s refusal to
submit to a blood test 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 Section 56-5-2950(a) rights, the officer did not provide
the motorist with a written copy of the form. The Court relying heavily on State
v. Huntley, 349 S.C. 1, 5, 562 S.E.2d 472, 474 (2002) concluded that the motorist was not prejudiced by the fact that the arresting
officer did not provide a written copy of the Section 56-5-2950(a) advisement
to the motorist. Id. Importantly, the Taylor court interpreted
the Huntley decision 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.
Here, as in Taylor, the record indicates that Respondent was
orally advised of his Section 56-5-2951(a) rights. Thus, pursuant to Taylor, any failure by Officer Gillepsie to advise Respondent in writing of his
Section 56-5-2951(a) rights is actually irrelevant, since Respondent did not
present any evidence of prejudice at the hearing.
Therefore, even if the DMVH hearing officer correctly construed Officer
Gillepsie’s testimony on this matter, the Taylor decision still mandates
reversal of the hearing officer’s order.
ORDER
IT
IS THEREFORE ORDERED that the DMVH’s Final Order and Decision is REVERSED.
AND IT IS SO ORDERED.
______________________________
Ralph
K. Anderson
Administrative
Law Judge
September 26, 2006
Columbia, South Carolina
