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 after
it held an administrative hearing 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 affirmed 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 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.
Under Section
56-5-2950(a), a law enforcement officer who arrests a motorist for driving
under the influence may ask the motorist to submit to a breath test. If
certain conditions are met, the arresting officer may request that a blood or
urine sample be taken from the motorist in addition to, or in lieu of, the
breath test. Although a motorist may refuse to submit to such testing, if he
chooses to do so, his license must be immediately suspended pursuant to S.C.
Code Ann. § 56-5-2951(A) (2006). However, under S.C. Code Ann. § 56-5-2951(B)(2)
(2006), the motorist may thereafter request an administrative hearing to
challenge the suspension.
Importantly,
prior to January 1, 2006, the Department’s Office of Administrative Hearings
held the hearings requested under Section 56-5-2951(B)(2). 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 specifically
requires DMVH hearing officers to conduct their hearings in accordance with the
ALC’s rules of procedure. Id.
FACTS
On March 19, 2006, Officer
Brad Newton of the South Carolina Highway Patrol was dispatched to a
one-vehicle accident in Greenville County. Upon arriving at the scene of the
accident, Officer Newton spoke with Respondent and determined that Respondent’s
vehicle had left the roadway and struck a tree. During his discussions with
Respondent, Officer Newton noticed that Respondent smelled strongly of alcohol,
had bloodshot eyes, and was incoherent. Based on Respondent’s appearance and
demeanor, Officer Newton advised Respondent of his Miranda rights and asked Respondent if he had been drinking. Respondent stated that he
had consumed five or six beers that evening.
As a result of the
accident, Respondent suffered lacerations to his head and face, as well as to his
arms. Because of these injuries, Respondent was transported to Greenville Memorial Hospital. At the hospital, Officer Newton asked Respondent to submit a
blood sample and advised Respondent of his implied consent rights under Section
56-5-2950(a). Respondent refused to submit a blood sample.
Based on his refusal to
submit to a blood test, 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. The hearing was held before a DMVH hearing officer on April 25,
2006. At the hearing, Officer Newton did not testify that he asked Respondent to
submit to a breath test prior to requesting a blood sample from Respondent. Instead,
Officer Newton testified as follows:
Once [Respondent’s] vehicle was
picked up by Dodson’s Towing, I responded to Greenville Memorial at which I
time I spoke with the medical personnel there. He was not going to be released,
and due to the head injuries, was not going to be able to submit to a
DataMaster.
At no point during the hearing did
Officer Newton provide any evidence regarding the names or qualifications of
the “medical personnel” with whom he spoke at the hospital.
In her Final Order and
Decision, the DMVH hearing officer rescinded Respondent’s suspension. In doing
so, she held that the administrative hearing constituted an enforcement action
and that, therefore, the Department bore the burden of proof. She then
concluded that the Department did not meet its burden. Specifically, she
stated:
In this case, there was no testimony or documentation
that the Respondent was physically unable to provide an acceptable breath
sample because he had an injured mouth, was unconscious or dead or for any
reason considered acceptable by the licensed medical personnel.
In addition, the
hearing officer also stated that the Department failed to present sufficient
evidence to establish that Respondent was advised in writing of his implied
consent rights prior to his refusal. The Department now appeals.
ISSUES
ON APPEAL
1. Did the DMVH hearing officer err when she determined that the
Department’s imposition of a statutorily mandated suspension of a driver’s
license was an “enforcement action” as contemplated by the APA, thus shifting
the burden of proof to the Department?
2. Did the DMVH hearing officer err when she determined that the officer
impermissibly offered a blood test to Respondent instead of a breath test?
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
Burden
of Proof
The Department argues
that the DMVH hearing officer erroneously determined that the Department bore
the burden of proof in this case. Specifically, the Department argues that the
burden of proof should have been placed on Respondent since the proceeding was
initiated by Respondent’s request for an administrative hearing pursuant to Section
56-5-2951(B)(2). The Department further argues that since Section 56-5-2951(F),
the statutory provision under which the review of the suspension is conducted,
does not set forth specific evidentiary elements that the Department must
satisfy before the suspension can be imposed, it does not bear the burden of
proof. Thus, the Department contends that, because Section 56-5-2951 does not
grant the Department any discretion with respect to suspending Respondent’s
license, this is not an enforcement action as contemplated by ALC Rule 29(B).
In general, the license
or permit of a motorist who refuses to submit to a test provided for in Section
56-5-2950 registers an alcohol concentration of 0.15% or above on a test
conducted pursuant to Section 56-5-2950(a) must be immediately suspended. S.C.
Code Ann. §56-5-2951(A) (2006). Accordingly, the Department is correct that it initially does not have any discretion in whether or not to suspend the
motorist license. However, the motorist can “request an administrative
hearing” to review that suspension. S.C. Code Ann. §56-5-2951(B)(2) (2006).
Pursuant to Section 1-23-660, the DMVH hearing officer now independently hears
the case in the same capacity as previously did the staff of the Department,
except now in accordance with the ALC’s rules of procedure. Therefore, the
hearing officer stands in the position of the Department to determine in its
discretion if the motorist:
(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 the:
(a) reported alcohol concentration at the time of
testing was fifteen one-hundredths of one percent or more;
(b) individual who administered the test or took
samples was qualified pursuant to Section 56-5-2950;
(c) 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).
Though Section 56-5-2951(F) limits the scope of the hearing, the fact that
inquiry by the hearing officer is limited does not diminish the fact the
Department, through the hearing officer, is ultimately making the determination
in its discretion whether to suspend a motorist’s license or permit.
Furthermore, South Carolina courts have referred to an administrative suspension of a motorist’s
driver’s license as a “sanction.” See State v. Price, 333
S.C. 267, 272, 510 S.E.2d 215, 218 (1998). Moreover, other state courts have
referred to an order suspending a motorist’s license as an “administrative
order.” See, e.g., Butler v. Dep’t of Pub. Safety and
Corrections, 609 So.2d 790, 791 (La. 1992); Ott v. Tex. Dep’t of Pub.
Safety, 958 S.W.2d 294, 295 (Tex. App. 1998); Johnson v. Dep’t of
Revenue, 27 P.3d 943, 944 (Kan. Ct. App. 2001); In re Appeal of Flannery,
39 Pa. D. & C. 4th 323, 324 (Pa. Ct. of Com. Pl. 1998). In enforcement
actions where an agency initiates enforcement and claims that a party violated
a statute or regulation, the ALC has consistently held that the agency is the
party maintaining the affirmative of the issue and that the agency, therefore,
bears the burden of proof. See Randy R. Lowell and Stephen P. Bates,
South Carolina Administrative Practice and Procedure 200-201 (2004). 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.” Moreover, the ALC has consistently applied Rule
29(B) even in cases where the agency did not request the contested case
hearing. See, e.g., S.C. Dep’t of Health and Envtl. Control
v. Melvin L. Crum, Individually, and Melvin L. Crum, d/b/a Crum Farms,
04-ALJ-07-0273-CC 2005 WL 562564 (S.C. Admin. Law Ct. February 3, 2005) (agency
bore burden of proof even though it did not request contested case hearing); S.C.
Dep’t of Health and Envtl. Control v. Trademark Properties, Inc.,
05-ALJ-07-0120-CC, 2005 WL 3419940 (S.C. Admin. Law Ct. November 14, 2005) (same).
Notably, ALC Rule 29(B) does not differentiate between enforcement actions that
are mandated by statute and enforcement actions that are issued at the
discretion of an agency. Furthermore, a number of state courts, in similar
situations, have concluded that the burden of proof should be placed on the
state agency suspending the driver’s license even in cases where the applicable
statute did not grant the state agency any discretion to forego seeking such a
suspension. See, e.g., Joyner v. Garrett, 182 S.E.2d 553
(N.C. 1971); Ex parte Boykin, 643 So.2d 986 (Ala. 1993); Lake v. Reed,
940 P.2d 311 (Cal. 1997).
Additionally, 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 motorist’s license is lessened. See People v. Orth, 530 N.E.2d 210, 215 (Ill. 1988) (“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 (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
arrest was unlawful.
The Department also
contends that it is similarly situated in the position of the Department of
Revenue (DOR) in instances in which a protest is filed concerning a beer and
wine permit. See S.C. Code Ann. § 61-4-525 (Supp. 2005). The
Department argues that just as the DOR is required to deny an otherwise
suitable beer and wine permit, it is required to suspend the driving privileges
of a motorist upon receipt of a Notice of Suspension. Here, however,
Respondent is not seeking to obtain a license or permit; rather, the Department
is seeking to have Respondent’s existing license suspended. Continuing with
the Department’s analogy, in instances in which DOR suspends a license or
permit for statutory or regulatory violations, DOR bears the burden of proof. See, e.g., S.C. Dep’t of Revenue v. Mark T. Jewett, d/b/a Fort Lawn Texaco,
00-ALJ-17-0432-CC 2001 WL 517530 (S.C. Admin. Law Ct. March 30, 2001).
For these reasons, I
find that it was not error for the DMVH hearing officer to place the burden of
proof on the Department.
Propriety
of Blood Sample Request
Section
56-5-2950(a) provides in pertinent part:
At the direction of the arresting officer, [a person arrested
for DUI] first must be offered a breath test to determine the person’s alcohol concentration.
If the person is physically unable to provide an acceptable breath sample
because he has an injured mouth, is unconscious or dead, or for any other
reason considered acceptable by the licensed medical personnel, the arresting
officer may request a blood sample to be taken.
S.C. Code Ann. § 56-5-2950(a) (2006).
The Department argues that,
based on the testimony of Officer Newton, the DMVH hearing officer erred in determining
that Officer Newton impermissibly requested a blood test instead of a breath
test. Specifically, the Department argues that, “[based on] medical
personnel’s specific communication to him that Respondent would not be released
because of his head injuries, it was certainly reasonable for Trooper Newton to
believe Respondent’s injuries prevented his transport to the Detention Center
for a breath test.” In arguing that it was proper for Officer Newton to
request a blood sample, the Department cites State v. Stacy, 315 S.C.
105, 431 S.E.2d 640 (Ct. App. 1993).
In Stacy, a
motorist was convicted of two felony DUI counts after leading law enforcement officers
on a high speed car chase that ended in a deadly wreck. The motorist appealed
his conviction to the Court of Appeals, arguing that the trial judge erred in
admitting into evidence his blood test results. Specifically, the motorist
argued that the State had not complied with Section 56-5-2950(a) before ordering
the blood sample. The Court of Appeals upheld the motorist’s conviction. In
doing so, the court construed the phrase “licensed medical personnel” in
Section 56-5-2950(a) to mean licensed physicians, licensed registered nurses,
and other medical personnel trained to take blood samples in a licensed medical
facility. Id. at 107, 431 S.E.2d at 641. The court then determined
that the State had complied with Section 56-5-2950 in ordering the blood test:
In this case, . . . York, who drew the blood sample,
testified that she was a medical person trained to take blood samples. She was
working at the Greenville Memorial Hospital emergency room, and Stacy has not
complained that it is not a licensed medical facility. York also testified
that it was not possible for the officers to take Stacy to the Law Enforcement Center for a breath test because Stacy had not been treated for his
injuries by an emergency room physician. It is clear that York felt this was
an acceptable reason for determining that Stacy could not give an acceptable
breath sample. The statute thus permitted York to take the blood sample
without the arresting officer first offering Stacy a breath test.
Id.
Stacy, however,
is distinguishable from the present case. In Stacy, the hospital
employee who testified regarding the motorist’s inability to submit to a breath
test also provided testimony regarding her qualifications to make such a
determination. Specifically, she testified that she was a medical person
trained to take blood samples. Based on this testimony, the Court of Appeals
determined that she was “licensed medical personnel” as contemplated by Section
56-5-2950(a). Here, in contrast, Officer Newton provided no evidence regarding
the qualifications of the medical personnel who told him that Respondent would
not be able to submit to a breath test. Thus, Stacy is distinguishable
from the present case.
In fact, this case is
more similar to City of Columbia v. Moore, 318 S.C. 292, 457 S.E.2d 346 (Ct.
App. 1995), a case in which the Court of Appeals upheld the exclusion of a
motorist’s blood test results. In Moore, the motorist was arrested for
driving under the influence after being involved in an accident. Because he
complained of chest pains, the motorist was taken to the hospital for X-rays. At
the hospital, the arresting officer ordered that a blood sample be taken from
the motorist in lieu of a breath test. At the motorist’s municipal court
trial, the arresting officer testified that someone at the hospital told him
that the motorist might be in the hospital all night for observation. The
blood test was admitted into evidence and the motorist was convicted of driving
under the influence. The motorist subsequently appealed to the circuit court,
which overturned the conviction on the grounds that the blood sample was
improperly admitted into evidence and remanded the case for a new trial. The City
then appealed to the Court of Appeals, which affirmed the circuit court’s
decision. In doing so, the Court of Appeals held as follows:
In the case at bar, it is undisputed Moore did not have an injury to the mouth and was conscious at all times. Therefore, the
City was required under § 56-5-2950 to present evidence Moore was physically
unable to give an acceptable breath sample for a reason found acceptable by licensed
medical personnel. Because the City did not do so, the municipal court
erred in admitting the blood sample into evidence.
Id. at 295, 457 S.E.2d at
347 (emphasis added).
The Court of Appeals then
rejected the City’s argument that the arresting officer’s reasonable belief regarding
the motorist’s inability to submit to a breath test was sufficient to allow the
officer to order a blood sample:
The City argues Wadford’s belief that Moore would not
be released for a long period of time, coupled with the reasonable inferences
which can be derived from the circumstances under which he was transported to
the hospital, is a sufficient basis to conclude Moore was physically incapable
of giving a breath sample. However reasonable these conclusions may be under
the circumstances, they are legally insufficient . . . To allow the arresting
officer to make the determination that a person is physically unable to give an
acceptable breath sample, absent an injured mouth, unconsciousness, or death,
is a relaxation of the plain requirement of the statute, and would allow the
substitution of the officer’s judgment for that of licensed medical personnel.
Id. at 295, 457 S.E.2d at 347-48. The Moore court then distinguished its
case from Stacy by stating:
We do not by this holding suggest that inability to
leave a medical facility, whether due to ongoing treatment, observation, or
prolonged waiting for treatment is not a legally sufficient basis to conclude a
person is “physically unable” to provide an acceptable breath sample. We
merely conclude the evidence must establish that the reason a blood test was
ordered in lieu of a breath sample by the officer is a reason found acceptable
by licensed medical personnel.
Id. at 296, 457 S.E.2d at
348 (emphasis added).
Notably, the question
of the propriety of a blood test request was again examined by the Court of
Appeals in State v. Kimbrell, 326 S.C. 344, 481 S.E.2d 456 (Ct. App.
1997). In Kimbrell, a motorist was involved in an accident and was
transported to the hospital for treatment. As the motorist was leaving the
hospital after being discharged, the law enforcement officer who responded to
her accident asked her to submit to a blood test and she agreed. At the
motorist’s DUI trial before the magistrate’s court, the law enforcement officer
testified that the reason why he asked for a blood test instead of a breath
test was because the motorist “had a little blood in her teeth.” Id. at 346, 481 S.E.2d at 457. However, the motorist’s husband, a former highway
patrolman who was present with the motorist at the hospital, testified that the
motorist had no injury to her mouth that would have prevented her from giving
an acceptable breath sample. The results of the blood test were admitted at
the trial and the motorist was convicted of driving under the influence. The
motorist subsequently appealed to the circuit court, which concluded that the
motorist’s blood test results should have been suppressed and remanded the case
for a new trial. On appeal, the Court of Appeals affirmed the circuit court’s
decision. Importantly, in doing so, the Court of Appeals confirmed its holding
in Moore by stating:
As we held in Moore, the determination that
the accused is physically unable to provide an acceptable breath sample due to
any reason other than unconsciousness, death, or injury to the mouth requires
the determination of licensed medical personnel.
Id. at 348, 481 S.E.2d at 458
(emphasis added). The Court of Appeals then went on to hold that, even when
there is an indication of an injury to the mouth (and hence a determination by
licensed medical personnel is not necessary), Section 56-5-2950(a) still requires
law enforcement officers to make a reasonable determination that the
motorist is physically unable to provide an acceptable breath sample. Id. at 348-49, 481 S.E.2d at 458-59. In making this ruling, the Court of Appeals noted
that “[u]nlike a breath test, the blood test is physically invasive” and
that, by enacting Section 56-5-2950, “the legislature clearly intended to
protect against this invasion where it is simply used as convenience to the
arresting officer, absent the agreement of the accused.” Id. at 348,
481 S.E.2d at 458-59 (emphasis added). Because there was no evidence that the
motorist received medical attention to her mouth, and because the arresting
officer did not examine the motorist’s mouth or ask her about the condition of
her mouth, the Court of Appeals determined that the evidence in the record did
not support the arresting officer’s decision not to offer the breath test. Id. at 348; 481 S.E.2d at 458. The court then concluded that the motorist’s consent
to the blood test was not valid, since the blood test was not properly
requested under Section 56-5-2950 and the motorist was not advised of her right
to a breath test instead of a blood test. Id. at 348, 481 S.E.2d at 459
(citing Moore, 318 S.C. at 296, 457 S.E.2d at 348).
In
this case, there was no evidence presented to show that Respondent was unable
to submit to a breath test because he was unconscious or had an injury to his
mouth. Therefore, the Department was required to establish that
Respondent was physically unable to give an acceptable breath sample for a
reason found acceptable not by Officer Newton, but by licensed medical personnel.
Though Officer Newton did testify that “medical personnel” at the hospital told
him that Respondent would not be able to submit to a breath test, there was no
specific testimony that the “medical personnel” with whom Officer Newton spoke
were “licensed medical personnel.” In light of the fact that the phrase
“medical personnel” was not challenged on cross examination by the motorist, a
reasonable person could conclude that Trooper Newton was referring to “licensed
medical personnel.” Nevertheless, the record as a whole would also allow
a reasonable person to reach the conclusion that simply because “medical
personnel” at the hospital stated that Respondent was not going to be released
due to head injuries, those persons did not necessarily constitute “licensed
medical personnel.” See, e.g., State v. Frey, 362
S.C. 511, 517, 608 S.E.2d 874, 877 (Ct. App. 2004) (holding that one’s mere
appearance in a hospital wearing generic hospital attire is not evidence of
one’s medical training for the purposes of Section 56-5-2950). Therefore,
the DMVH’s Final Order and Decision must be affirmed.
ORDER
IT
IS THEREFORE ORDERED that the DMVH’s Final Order and Decision is AFFIRMED.
AND IT IS SO ORDERED.
______________________________
Ralph
K. Anderson
Administrative
Law Judge
October 18, 2006
Columbia, South Carolina
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