Friday, October 24, 2014

SC Administrative Law Court Decisions

CAPTION:
SCDMV vs. Charles T. Swigon

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Appellant:
South Carolina Department of Motor Vehicles

Respondents:
Charles T. Swigon
 
DOCKET NUMBER:
06-ALJ-21-0667-AP

APPEARANCES:
n/a
 

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. § 56-1-286(K)(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

On May 8, 2006, Respondent, who was nineteen years old at the time, was stopped by Officer Brandon Pangle of the Simpsonville Police Department for not having tag lights. While speaking with Respondent, Officer Pangle noticed that Respondent’s eyes were bloodshot and glassy, and that his speech was a bit slurred. He also noticed that Respondent smelled of alcohol. Officer Pangle asked Respondent to perform several field sobriety tests. Based on Respondent’s performance on the field sobriety tests, Officer Pangle determined that he had probable cause to arrest Respondent. He then arrested Respondent and transported him to the Simpsonville Police Department.

Upon reaching the Simpsonville Police Department, Officer Pangle administered a breath test to Respondent. The results of the breath test indicated that Respondent’s blood alcohol concentration was 0.11%. This level was significantly higher than the 0.02% limit for suspending Respondent’s license under the Zero Tolerance statute, S.C. Code Ann. § 56-1-286 (2006), which is applicable to motorists who are under the age of twenty-one. It was also above 0.08%, the level at which, under S.C. Code Ann. § 56-5-2950(b)(3) (2006), it may be inferred, in a criminal DUI prosecution, that a person is under the influence of alcohol. Based on the results of the test, Officer Pangle issued Respondent a Notice of Suspension. On the Notice of Suspension, Officer Pangle checked a box labeled “Registering an alcohol concentration of .02 or greater.” This box was located under the heading “Under the age of twenty-one (21) and not under arrest for DUI.” Respondent was also issued a Uniform Traffic Ticket. On the Uniform Traffic Ticket, under the section labeled “Violation,” Officer Pangle wrote, “DUI – Zero Tolerance.” In addition, under the section labeled “Violation Section No.,” Officer Pangle wrote, “56-1-286.” Officer Pangle then placed Respondent in the Greenville County Detention Center.

Thereafter, pursuant to Section 56-1-286(K)(2), Respondent filed a request for an administrative hearing to challenge the suspension. An administrative hearing was held on June 27, 2006 in Mauldin, South Carolina. At the hearing, during his direct testimony, Officer Pangle testified that, after placing Respondent under arrest, he advised Respondent that he was under arrest for “zero tolerance.” However, on cross-examination, Respondent’s attorney asked Officer Pangle on three separate occasions whether he placed Respondent under arrest for DUI, and, each time, Officer Pangle answered, “Yes, sir.” During one of these instances, Officer Pangle added, “Dropped it down to zero tolerance.”

On May 30, 2006, the DMVH hearing officer issued a Final Order and Decision, in which she rescinded Respondent’s suspension. In doing so, she explained:

After reviewing the facts in this case and the applicable law, I find and conclude that the arresting officer arrested the Respondent for driving under the influence and Zero Tolerance. In cases in which a law enforcement officer initiates suspension proceedings for a violation of this section, the officer has elected to pursue a violation of this section and is subsequently prohibited from prosecuting the person for a violation of Section 20-7-8920, 20-7-8925, 56-5-2930, or 56-5-2933 arising from the same incident. The arresting officer must determine at the incident site whether the Respondent is arrested for Zero Tolerance or driving under the influence regardless of age. In this case, the arresting officer arrested the Respondent for driving under the influence and Zero Tolerance, which is prohibited pursuant to Section 56-1-286. Therefore, I conclude as a matter of law that the Petitioner failed to meet its burden of proof. Accordingly, the relief requested by Respondent must be granted.

The Department now appeals.

ISSUE ON APPEAL[1]

1. Did the DMVH hearing officer err by rescinding Respondent’s suspension on the grounds that Respondent was initially arrested for both driving under the influence and a violation of Section 56-1-286?

STANDARD OF REVIEW

The DMVH is authorized by law to determine contested case hearings of the Department. See S.C. Code Ann. § 1-23-660 (Supp. 2005). Therefore, the DMVH is an “agency” under the Administrative Procedures Act (APA). See S.C. Code Ann. § 1-23-310(2) (2005). As such, appeals from the decisions of the DMVH are properly decided under the APA’s standard of review. See S.C. Code Ann. § 1-23-380(A) (2005); see also Byerly Hosp. v. S.C. State Health & Human Servs. Fin. Comm’n, 319 S.C. 225, 229, 460 S.E.2d 383, 385 (1995). Importantly, the standard used by appellate bodies to review agency decisions is provided by S.C. Code Ann. § 1-23-380(A)(6) (2005), which states:

The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. 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.

Thus, pursuant to the APA, this Court’s review is limited to deciding whether the DMVH’s Final Order and Decision is unsupported by substantial evidence or is affected by an error of law. Bass v. Kenco Group, 366 S.C. 450, 457, 622 S.E.2d 577, 581 (Ct. App. 2005). Substantial evidence is not a mere scintilla of evidence, nor the evidence viewed blindly from one side of the case, but is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion the agency reached in order to justify its action. Hargrove v. Titan Textile Co., 360 S.C. 276, 289, 599 S.E.2d 604, 611 (Ct. App. 2004). The possibility of drawing two inconsistent conclusions from the evidence does not prevent the agency’s findings from being supported by substantial evidence. Id. at 290, 599 S.E.2d at 611. Importantly, the party challenging an agency’s decision has the burden of proving convincingly that the agency’s decision is unsupported by substantial evidence. Waters v. S.C. Land Resources Conservation Comm’n, 321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996).

DISCUSSION

Section 56-1-286(A) states in pertinent part:

In cases in which a law enforcement officer initiates suspension proceedings for a violation of this section, the officer has elected to pursue a violation of this section and is subsequently prohibited from prosecuting the person for a violation of Section 20-7-8920, 20-7-8925, 56-5-2930, or 56-5-2933 arising from the same incident.

S.C. Code Ann. § 56-1-286(A) (2006).[2]

The Department argues that the DMVH hearing officer misinterpreted Section 56-1-286(A) when she rescinded Respondent’s suspension on the grounds that Respondent was arrested for both DUI and a violation of Section 56-1-286. Specifically, the Department argues that “whether Respondent was arrested for DUI or Zero Tolerance is only an issue if law enforcement were prosecuting Respondent for DUI.” Respondent, on the other hand, argues that “the Notice of Suspension document issued in this case, the criminal citation issued, the repeated testimony that the Respondent was under arrest for DUI and the Respondent’s subsequent detention after the implied consent test . . . supports the decision made by the hearing officer.”

Rules of Statutory Construction

The cardinal rule of statutory construction is to ascertain and effectuate the intent of the legislature. Charleston County Sch. Dist. v. State Budget and Control Bd., 313 S.C. 1, 5, 437 S.E.2d 6, 8 (1993). The text of the statute is the best evidence of legislative intent. Knotts v. S.C. Dep’t of Natural Resources, 348 S.C. 1, 10, 558 S.E.2d 511, 516 (2002). Statutory construction requires the court to read the words of the statute according to “their plain and ordinary meaning without resorting to subtle or forced construction to limit or expand the statute’s operation.” Cox v. BellSouth Telecomms., 356 S.C. 468, 472, 589 S.E.2d 766, 768 (Ct. App. 2003). However, a court must reject a statute’s interpretation that leads to absurd results not intended by the legislature. Ray Bell Constr. Co., Inc. v. School Dist. of Greenville County, 331 S.C. 19, 26, 501 S.E.2d 725, 729 (1998).

Construction of Section 56-1-286

In her Final Order and Decision, the DMVH hearing officer interpreted Section 56-1-286(A) as follows: “The arresting officer must determine at the incident site whether the Respondent is arrested for Zero Tolerance or driving under the influence regardless of age.” Thus, the DMVH hearing officer essentially concluded that Section 56-1-286(A) requires a law enforcement officer to make an unalterable and binding determination, at the time of a motorist’s arrest, regarding whether the motorist will be charged with a violation of Section 56-1-286 or whether the motorist will be charged with a violation of Section 56-5-2930 or 56-5-2933.

For several reasons, I disagree with this interpretation of Section 56-1-286(A). First of all, among other things, such an interpretation requires one to equate the phrase “initiates suspension proceedings” with the term “arrests.” However, simply arresting a motorist for a violation of Section 56-1-286 does not commence suspension proceedings against that motorist. Instead, a Section 56-1-286 suspension is not initiated until a Notice of Suspension is issued. See, e.g., S.C. Code Ann. § 56-1-286(L) (2006) (“The periods of suspension provided for in subsections (F) and (G) begin on the day the notice of suspension is issued . . .”). Therefore, the phrase “initiates suspension proceedings” cannot be equated with the term “arrests.”

Second, such an interpretation similarly treats the word “prosecuting” as synonymous with the word “arresting.” However, the word “prosecute,” as commonly defined, means more than “arrest.” For instance, the American Heritage College Dictionary defines “prosecute” as follows: “a. To initiate civil or criminal court action against. b. To seek to obtain or enforce by legal action.” American Heritage College Dictionary 1098 (3rd ed. 1993). Black’s Law Dictionary, in turn, provides the following definition of “prosecute”:

To follow up; to carry on an action or other judicial proceeding; to proceed against a person criminally. To “prosecute” an action is not merely to commence it, but includes following it to an ultimate conclusion.

Black’s Law Dictionary 1221 (6th ed. 1990). Similar to Black’s Law Dictionary, Law.com’s online legal dictionary defines “prosecute” as follows: “[I]n criminal law, to charge a person with a crime and thereafter pursue the case through trial on behalf of the government.” Law.com Dictionary (visited December 5, 2006) <http://dictionary.law.com>. Because prosecuting criminal actions is typically the responsibility of county solicitors, not law enforcement officers, the exact scope of what the legislature intended when it used the word “prosecuting” in Section 56-1-286(A) is not completely clear. Nevertheless, arresting a person for DUI, without more, does not initiate a criminal action against that person. Therefore, based on the foregoing definitions, it is clear that the word “prosecuting” must be construed to mean something more than simply arresting an individual.

Lastly, the DMVH hearing officer’s interpretation of Section 56-1-286(A) would lead to results that I do not think were intended by the legislature. For instance, it would force law enforcement officers to guess as to just how intoxicated an underage motorist is before making an arrest. If an officer were to guess too high and erroneously arrest the motorist for DUI, then he would be precluded from suspending the motorist’s license under Section 56-1-286 even if the motorist’s blood alcohol level was above 0.02%. Alternatively, if he were to guess too low and arrest the motorist for a violation of Section 56-1-286, then the State would be prohibited from prosecuting the motorist for DUI even if the motorist’s blood alcohol level was substantially higher than 0.08%. Furthermore, such an interpretation of Section 56-1-286(A) would, for better or for worse, put an end to plea bargaining. A law enforcement officer who correctly arrested a motorist who was under the age of twenty-one for DUI would never reduce the charge to a Section 56-1-286 violation, because doing so would essentially mean that the motorist would go unpunished. In my opinion, the legislature did not intend these consequences when it enacted the statutory provision at issue here.[3]

In this case, the evidence in the Record does not support a finding that Section 56-1-286(A) was violated. Despite the relative ease of obtaining such evidence, Respondent has not presented any evidence to show that he was ever formally charged with a violation of Section 56-5-2930 or Section 56-5-2933. The “criminal citation” that Respondent refers to in his brief is a Uniform Traffic Ticket in which the stated violation is “DUI – Zero Tolerance” and the stated violation section number is 56-1-286. Moreover, the fact that Respondent was detained after being issued the Notice of Suspension does not, without more, prove that Respondent was prosecuted for Section 56-5-2930 or Section 56-5-2933. In all likelihood, the sole purpose of this detention was to prevent Respondent from driving home while he was still intoxicated. Notably in this regard, Officer Pangle testified at the hearing that, although Respondent was initially arrested for DUI, he “[d]ropped it down to zero tolerance.” This testimony certainly suggests that Officer Pangle did not pursue a DUI prosecution against Respondent after issuing Respondent the Notice of Suspension.

Furthermore, if Respondent was currently being prosecuted for DUI, it is virtually inconceivable that he would choose to use Section 56-1-286(A) as a means to dismiss his Section 56-1-286 suspension, rather than use it to dismiss his DUI prosecution.[4] For instance, the penalty imposed for registering a blood alcohol level of .02% or above in violation of Section 56-1-286 is, for a first-time offense, a three-month suspension. S.C. Code Ann. § 56-1-286(G). In contrast, a person convicted of Section 56-5-2930 or 56-5-2933 for a first-time violation must have his driver’s license suspended for a period of six months. S.C. Code Ann. § 56-5-2990(A) (2006). Moreover, in addition to the six-month suspension, a first-time offender of Section 56-5-2930 or 56-5-2933 must also be either fined four hundred dollars or imprisoned for a period of between two and thirty days.[5] S.C. Code Ann. § 56-5-2940 (2006).

Based on the foregoing, I conclude that Respondent is not being, and has never been, prosecuted for DUI for the May 8, 2006 incident. Certainly, if I am wrong and Respondent is in fact currently being criminally prosecuted for a violation of Section 56-5-2930 or Section 56-5-2933, then he can move to dismiss the prosecution pursuant to Section 56-1-286(A). However, based on the lack of evidence that Respondent has been, or is being, criminally prosecuted under Section 56-5-2930 or Section 56-5-2933, rescission of Respondent’s Section 56-1-286 suspension is not warranted. Therefore, the Final Order and Decision of the DMVH hearing officer must be reversed.

order

IT IS HEREBY ORDERED that the DMVH hearing officer’s Final Order and Decision is REVERSED.

AND IT IS SO ORDERED.

______________________________

Carolyn C. Matthews

Administrative Law Judge

December 7, 2006

Columbia, South Carolina



[1] Although the Department presented two issues on appeal, because the issue discussed herein is dispositive, the second issue need not be addressed. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (noting that an appellate court need not address remaining issues when a prior issue is dispositive).

[2] Sections 56-5-2930 and 56-5-2933 are both criminal DUI statutes. Sections 20-7-8920 and 20-7-8925 both prohibit the purchase and possession of certain types of alcoholic beverages by individuals under the age of twenty-one. Because there is no evidence in the Record that Respondent was arrested or prosecuted for a violation of Section 20-7-8920 or 20-7-8925, these two statutes are omitted from the discussions herein.

[3] Notably, the statutory provision at issue here was added to Section 56-1-286(A) in 2003, shortly after the issuance of the Court of Appeals’ decision in State v. Cuccia, 353 S.C. 430, 578 S.E.2d 45 (Ct. App. 2003). In Cuccia, the Court of Appeals held that the double jeopardy clauses of the federal and state constitutions were not violated in a case in which a nineteen-year-old motorist had his license suspended pursuant to Section 56-1-286 and was thereafter convicted of a violation of Section 56-5-2930. In doing so, the Court of Appeals held that “suspending Cuccia’s license under section 56-1-286 does not prohibit a subsequent prosecution under section 56-5-2930 for DUI.” Id. at 439, 578 S.E.2d at 50. Based on the wording of the statutory provision at issue here, as well as the fact that it was added shortly after the Cuccia decision, it is quite possible that it was enacted for the sole purpose of nullifying the Cuccia decision. If this is true, then it supports my conclusion that the hearing officer misconstrued the objectives of this provision.

[4] In fact, by the manner in which the statute is written, it does not appear that the legislature envisioned that anyone would use Section 56-1-286(A) in such a way.

[5] In some instances, public service employment can be ordered in lieu of imprisonment.