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 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 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.
Importantly, Section 56-5-2950(a) continues
on to state:
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 testing required under Section 56-5-2950(a) 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. 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 required under Section 56-5-2950. S.C. Code Ann. §
56-5-2951(F) (2006).
FACTS
On February 7, 2006, Officer
Clint Fairey of the South Carolina Highway Patrol, while on routine patrol in Edgefield County, South Carolina, noticed Respondent’s vehicle approaching him from the
rear. In his rearview mirror, Officer Fairey saw Respondent’s vehicle swerve
over the center line and then drive off the roadway onto the shoulder. Officer
Fairey, who was doing the speed limit at the time, then witnessed Respondent attempt
to pass him. When Respondent’s vehicle reached the quarter panel of Officer
Fairey’s vehicle, Respondent slowed down and pulled his vehicle back. At that
point, Officer Fairey initiated a traffic stop. As Officer Fairey reached
Respondent’s vehicle, he noticed that there was a strong odor of alcohol coming
from the vehicle, and that there was an open beer can underneath one of the
seats that was spilling beer onto the floor of the vehicle. Respondent was also
unsteady on his feet, his
eyes were bloodshot and glassy, and
he smelled of alcohol. Because it was “obvious” to Officer
Fairey that Respondent was under
the influence of alcohol, Officer Fairey arrested Respondent for driving under
the influence without administering any field sobriety tests to Respondent. He
then transported Respondent to the Edgefield Detention Center.
Upon reaching the Edgefield Detention Center, Officer Fairey read Respondent the implied consent advisement
form. He then asked Respondent to sign the implied consent advisement form, and
Respondent agreed. After Respondent signed the implied consent advisement form,
Officer Fairey took the form away from Respondent. A twenty-minute pre-test
waiting period was then observed. Thereafter, Officer Fairey asked Respondent
several times if he would like to submit to a breath test. Respondent refused
each time. Based on this refusal, Officer Fairey completed a Notice of
Suspension pursuant to Section 56-5-2951(A). He then handed Respondent a copy
of the Notice of Suspension, as well as a copy of the signed implied consent
advisement form.
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 May 11, 2006. In addition to testifying at the hearing, Officer
Fairey introduced into evidence a videotape of the breath test site that he had
made in accordance with S.C. Code Ann. § 56-5-2953 (2006). Respondent did not testify
at the hearing or present any other evidence. On June 13, 2006, the DMVH
hearing officer issued a Final Order and Decision, in which she rescinded
Respondent’s suspension. In doing so, she explained:
. . . I find and conclude that the
Respondent was not advised in writing of his Advisement of Implied Consent Rights
. . . prior to the refusal. The Datamaster Site videotape clearly shows the
reading of the Advisement of Implied Consent Rights to the Respondent and of the
Respondent signing the form. The Respondent was given his copy of the
Advisement of Implied Consent Rights at the end of the refusal when all other
paperwork was issued.
The
Department now appeals.
ISSUE
ON APPEAL
Did the DMVH hearing officer
err when she determined that Officer Fairey’s reading of the implied consent
advisement form to Respondent did not satisfy the requirements of Section
56-5-2950?
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 Implied Consent Rights Advisement
The Department argues that
the DMVH hearing officer erred when she determined that Officer Fairey’s
reading of the implied consent advisement form to Respondent did not satisfy
the requirements of Section 56-5-2950. In other words, the Department contends
that since there was no showing that Respondent was prejudiced as a result of
not receiving a written copy of the implied consent advisement form prior to
his refusal, DMVH’s rescission was unwarranted pursuant to the Court of Appeals’
decision in Taylor v. S.C. Dep’t. of Motor Vehicles, supra. I
agree.
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, Respondent
concedes that “he did not make any showing of prejudice as [was] required by” Taylor. However, he argues that this Court should not follow the Taylor decision. In making this argument, Respondent notes that Section 56-5-2950 at
one time only required that motorists be orally advised of their implied consent
rights, but that it was later amended to require that motorists be advised of
these rights in writing. According to Respondent, in making this modification
to the law, the Legislature “clearly recognized” that oral advisements alone
were “generally woefully insufficient” in apprising motorists of the
consequences of refusing or agreeing to chemical testing. Therefore,
Respondent argues that the Taylor decision is “contrary to the implied
intent of the Legislature.”
Respondent
is correct that Section 56-5-2950 did not always require law enforcement
officers to advise motorists of their implied consent rights in writing. Prior
to 1998, oral advisements alone were sufficient. See Act No. 434, § 7,
1998 S.C. Acts 3220 (changing the law to require written advisements). Nevertheless,
it is not the place of this Court to determine whether or not the Taylor decision is “contrary to the implied intent of the Legislature.” The Taylor decision is binding precedent upon the ALC pursuant to the doctrine of
stare decisis. See 20 Am. Jur. 2d Courts § 142 (2005) (“Decisions
of the court of appeals . . . should be followed by all lower courts but will
not bind the state supreme court.”).
Therefore, the Final Order and Decision of the DMVH hearing officer was in
error.
ORDER
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
October 30, 2006
Columbia, South Carolina
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