Wednesday, September 17, 2014

SC Administrative Law Court Decisions

CAPTION:
SCDMV vs. Jennifer W. Lavigne

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Appellant:
South Carolina Department of Motor Vehicles

Respondents:
Jennifer W. Lavigne
 
DOCKET NUMBER:
06-ALJ-21-0056-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. § 56-5-2951(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, I affirm in part and remand 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.

Importantly, Section 56-5-2950(a) continues on to state: “Before the breath test is administered, an eight one- hundredths of one percent simulator test must be performed and the result must reflect a reading between 0.076 percent and 0.084 percent.”

Under S.C. Code Ann. § 56-5-2951(A) (2006), the license of a motorist who registers an alcohol concentration of 0.15% or above on a test conducted pursuant to 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.

FACTS

On November 26, 2005, Officer A.C. Maglione of the Mount Pleasant Police Department responded to a two vehicle accident on Highway 17 South in Mount Pleasant, 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. Respondent told Officer Maglione that she crossed the center median and drove northbound into the southbound lane, thereby hitting the other car head on. According to Officer Maglione, Respondent’s eyes were extremely bloodshot, she was unsteady on her feet and she smelled of alcohol. Based on Respondent’s appearance and demeanor, Officer Maglione asked Respondent how much she had had to drink. Respondent stated that she had consumed three or four mixed drinks. Officer Maglione then advised Respondent of her Miranda rights and administered field sobriety testing on Respondent. Based on her poor performance, he arrested her for driving under influence. He then transported Respondent to Mount Pleasant Police headquarters.

Upon reaching Mount Pleasant Police headquarters, Officer Maglione asked Officer M.L. Bacon, who is certified by SLED to administer breath tests, to perform breath testing on Respondent. Officer Bacon began videotaping Respondent’s conduct and informed Respondent that she was being videotaped. She then read Respondent the implied consent advisement form and gave her a copy. She thereafter asked Respondent if she would like to submit a breath sample, and Respondent stated that she would. Officer Bacon subsequently administered the breath test to Respondent. The results of the breath test indicated that Respondent’s blood alcohol concentration was 0.23%. Respondent was given a copy of the breath test results.

Based on the results of the 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. An administrative hearing was held on January 9, 2006. The DMVH hearing officer rescinded Respondent’s suspension on the basis that there was no evidence presented at the hearing to show that the DataMaster machine was working properly and that the test was administered and the samples were obtained in accordance with Section 56-5-2950. The Department now appeals.

ISSUES ON APPEAL[1]

1.      Did the Department fail to preserve its issues for appeal?

2.      Did the DMVH hearing officer err in ruling that the Department bore the burden of proof in this action?

3.      Did the DMVH hearing officer err by considering the issue of whether the DataMaster machine was working properly?

4.      Since Respondent did not present any evidence to show that she was prejudiced by law enforcement’s failure to perform a simulator test on the DataMaster machine, did the DMVH hearing officer err in rescinding Respondent’s suspension?

5.      Did the DMVH hearing officer correctly rescind Respondent’s suspension because the DataMaster operator did not testify that she checked Respondent’s mouth prior to administering the breath test?

6.      Did the DMVH hearing officer correctly rescind Respondent’s suspension because the arresting officer did not videotape the arrest and did not provide a sworn affidavit setting forth the reasons why the arrest was not videotaped?

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

Issue Preservation

Respondent argues that the Department did not properly preserve the issues that it presents in this appeal since it neither raised these issues at the hearing nor in a Rule 59, SCRP, motion to amend judgment. The Respondent is indeed correct that in order to preserve an issue for appellate review, with few exceptions, it must be raised and ruled upon by the lower court. See Staubes v. City of Folly Beach, 339 S.C. 406, 529 S.E.2d 543 (2000); Cowburn v. Leventis, 366 S.C. 20, 619 S.E.2d 437 (S.C. App. 2005). Accordingly, in circuit court a party must file a Rule 59 motion when an issue or argument has been raised, but not ruled on, in order to preserve it for appellate review. Elam v. S.C. Dept. of Transp., 361 S.C. 9, 602 S.E.2d 772 (2004). Likewise, “[w]hen a trial court makes a general ruling on an issue, but does not address the specific argument raised by a party, that party must make a Rule 59(e) motion asking the trial court to rule on the issue in order to preserve it for appeal.” Cowburn v. Leventis, 366 S.C. 20, 619 S.E.2d 437 (S.C. App. 2005).

S.C. Code Ann. § 1-23-660 (Supp. 2005) provides that the ALC’s Rules of Procedure apply to DMVH hearings. ALC Rule 68 further states: “The South Carolina Rules of Civil Procedure may, where practicable, be applied in proceedings before the Court to resolve questions not addressed by these rules.” (emphasis added). However,

although the filing of a Rule 59 motion to amend judgment is required in circuit court proceedings to preserve certain issues for appeal, such is not the case for contested case hearings governed by the ALC’s Rule of Procedure. Instead, ALC Rule 29(D) applies. ALC Rule 29(D), which grants parties the right to move for reconsideration of a final decision in a contested case proceeding, expressly states: “The filing of a motion for reconsideration is not a prerequisite to filing a notice of appeal from a final decision of an administrative law judge.” Therefore, Respondent’s reliance on ALC Rule 68 is misplaced. Not only is there no need to resort to the Civil Rules of Procedure in this case, applying those rules would violate ALC Rule 29(D). Thus, it is proper for this Court to address the arguments that the Department presents in this appeal.

Furthermore, after the DMVH hearing officer set forth the relevant issues for consideration, the Respondent’s attorney informed the hearing officer that the motorist was contesting all of the issue relevant for consideration. The Department now contests the hearing officer’s rulings upon the issues before her. Accordingly, the issues were indeed raised, albeit by the Respondent, and ruled upon by the hearing officer. The Department now simply contends the hearing officer’s ruling were erroneous.

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, 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). If such a request is made, a 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. See S.C. Code Ann. § 1-23-660. 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).[2] 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 hearing officer is ultimately making the determination in its discretion whether the Department, properly suspended the 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). Other state courts have also 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.” The ALC has consistently applied Rule 29(B) to 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.

Finally, other state courts, in similar situations, have also 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., Ex parte Boykin, 643 So.2d 986 (Ala. 1993); Lake v. Reed, 940 P.2d 311 (Cal. 1997); Joyner v. Garrett, 182 S.E.2d 553 (N.C. 1971).[3] Furthermore, the Courts considering this issue have also propounded 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 machine used to conduct the blood, breath or urine test was working improperly.

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 the motorist is not seeking to obtain a license or permit but is rather had their existing license suspended. Continuing with the Department’s analogy, in instances in which DOR suspends a license or permit for violation of the statutes or regulations, DOR bears the burden of proof. See, e.g., S.C. Dept. 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.

Hearing Officer’s Consideration of Issue

of Whether the DataMaster Machine Was Working Properly

The Department argues that the DMVH hearing officer erred by considering the issue of whether the DataMaster machine was working properly. Specifically, the Department claims that Respondent failed to raise this issue at the hearing and that, therefore, it was error for the DMVH hearing officer to address this issue in her order. In making this argument, the Department cites Gaddy v. Douglass, 359 S.C. 329, 347, 597 S.E.2d 12, 22 (Ct. App. 2004). I disagree.

Here, at the beginning of the proceeding, the DMVH hearing officer enumerated the potential issues for consideration during the hearing. In doing so, the hearing officer specifically mentioned the issue of whether the DataMaster machine was working properly. After setting forth the relevant issues, the DMVH hearing officer then asked Respondent’s attorney, “[W]hich of the issues that I read are you contesting today?” To which Respondent’s attorney answered, “All of them there.”

Based on this exchange, it is clear that Respondent did raise the issue of whether the DataMaster machine was working properly. Therefore, it is unnecessary for this Court to determine the applicability of Gaddy v. Douglass, supra, to this case. The DMVH hearing officer plainly did not commit error with respect to this issue.

Necessity of Showing of Prejudice With Respect to

Law Enforcement’s Failure to Perform Simulator Test

Section 56-5-2950(a) states that, before a breath test is administered, an eight one- hundredths of one percent simulator test must be performed on the DataMaster machine and the result must reflect a reading between 0.076 percent and 0.084 percent. This test is performed for the purposes of determining whether or not the DataMaster machine is working properly. See State v. Huntley, 349 S.C. 1, 5, 562 S.E.2d 472, 474 (2002).[4] At Respondent’s hearing, there was no evidence presented to show that this test was performed. The DMVH hearing officer therefore rescinded Respondent’s suspension on the basis that “there was no testimony or evidence presented to show that the DataMaster Machine was working properly and that the test was administered and the samples were conducted pursuant to Section 56-5-2950.”

The Department, however, argues that the DMVH hearing officer erred in rescinding Respondent’s suspension on this basis because Respondent did not present any evidence to show that she was prejudiced by law enforcement’s failure to perform the simulator test. In making this argument, the Department relies on Taylor v. S.C. Dep’t. of Motor Vehicles, 627 S.E.2d 751.

In Taylor, a motorist’s driver’s license was suspended under Section 56-5-2951 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 a written copy of the form as is required under Section 56-5-2950(a). After a hearing in which the motorist challenged the suspension, the hearing officer sustained the suspension of the motorist’s license. However, the circuit court reversed and the Department thereafter appealed to the South Carolina Court of Appeals. The Court of Appeals ultimately reversed the circuit court, relying heavily on the South Carolina Supreme Court’s decision in State v. Huntley, 562 S.E.2d 472.[5] 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. 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 of Appeals 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. Thus, the Court of Appeals held that the circuit court erred in reversing the hearing officer’s order. Id.

The Department argues that the Taylor decision stands for the proposition that a violation of Section 56-5-2950 will not result in the suppression of test results unless the motorist presents evidence showing that he was prejudiced by the State’s non-compliance with Section 56-5-2950. I disagree. Instead, I find that Taylor simply dictates that, prior to suppressing test results for non-compliance with Section 56-5-2950, a court, or in this case the hearing officer, must make a finding that the motorist was prejudiced by the non-compliance.[6] Notably, nowhere in Taylor did the Court of Appeals state that a court cannot find prejudice unless the motorist presents evidence indicating that he was indeed prejudiced. The fact that the Taylor court noted that the motorist in that case did not present any evidence to show prejudice does not mean that, in every case, a motorist must present evidence of prejudice. When a violation is minor, as it was in the Taylor case, it is difficult for a court to find prejudice unless the motorist provides at least some evidence to support such a finding. However, for major violations of Section 56-5-2950, a court could presumably find prejudice even where the motorist does not present any evidence of prejudice.

This interpretation of Taylor is supported by Section 56-5-2950(e). Section 56-5-2950(e) provides in pertinent part: “The failure to follow . . . 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.” (emphasis added).[7] Nowhere in Section 56-5-2950(e) does it state that a motorist must present evidence showing that he was prejudiced by the State’s violation of Section 56-5-2950. Instead, it simply states that the trial judge or hearing officer must make a finding of prejudice prior to suppressing test results.

Nevertheless, here, the DMVH did not make a finding as to whether law enforcement’s failure to perform the simulator test materially affected the accuracy or reliability of the tests results or the fairness of the testing procedure. Therefore, based on the South Carolina Court of Appeal’s decision in State v. Frey, 362 S.C. 511, 608 S.E.2d 874 (S.C. Ct. App. 2004),[8] I am remanding this case back to the DMVH for a determination, based on the existing record, of whether or not the DataMaster operator’s failure to perform the simulator test materially affected the accuracy or reliability of the tests results or the fairness of the testing procedure.

Checking of Respondent’s Mouth

Respondent argues that even if hearing officer committed other error in rescinding Respondent’s suspension, the DMVH’s decision should be affirmed based on the fact that the arresting officer did not testify that she checked Respondent’s mouth prior to administering the breath test as required by SLED implied consent policy 8.12.5. I disagree.

S.C. Code Ann. § 56-5-2951(F) (2006) states that, in administrative hearings held pursuant to Section 56-5-2951(B)(2), the scope of the administrative 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 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.

Nowhere in Section 56-5-2951(F) does it state that a relevant issue for the hearing is whether the test was administered pursuant to SLED policy. Nevertheless, Respondent essentially argues that because Section 56-5-2950(a) states that tests must be administered pursuant to SLED policy, and because compliance with Section 56-5-2950 is a relevant issue for the hearing, this means that, during these types of hearings, the Department must prove that each and every SLED policy was followed.[9] I disagree. Instead, the applicable provision with respect to situations where a violation of a SLED policy is alleged is S.C. Code Ann. § 56-5-2950(e) (2006), which states:

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.

(emphasis added). Because Section 56-5-2950(e) specifically sets forth the procedure for the DMVH’s review of SLED policies and the standards for excluding test results based on such a review, it prevails over more general statutory provisions. See Wooten ex rel. Wooten v. S.C. Dep’t of Transp., 333 S.C. 464, 468, 511 S.E.2d 355, 357 (1999) (a specific statutory provision prevails over a more general one); Atlas Food Sys. & Servs., Inc. v. Crane Nat’l Vendors Div. of Unidynamics Corp., 319 S.C. 556, 558, 462 S.E.2d 858, 859 (1995) (general rule of statutory construction is that a specific statute prevails over a more general one).

Thus, test results cannot be excluded simply because an arresting officer failed to testify that a specific SLED policy was followed, unless the motorist makes a motion during the hearing requesting the DMVH hearing officer to review such SLED policy and the hearing officer determines that law enforcement’s failure to comply with the SLED policy materially affected the accuracy or reliability of the tests results or the fairness of the testing procedure. Moreover, due process requires that such a motion be timely made so that the Department is given the opportunity to respond to the motion with evidence that either shows that the SLED policy was followed or that the violation of the SLED policy did not materially affect the accuracy or reliability of the tests results or the fairness of the testing procedure. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (“The fundamental requisite of due process of law is the opportunity to be heard.”) (quoting Grannis v. Ordean, 234 U.S. 385, 394 (1914)).[10] After hearing from both parties, the hearing officer must then decide whether the SLED policy was indeed followed and, if it was not, whether or not such failure to follow the SLED policy materially affected the accuracy or reliability of the tests results or the fairness of the testing procedure.

This interpretation of Section 56-5-2950 is consistent with the objectives of Section 56-5-2951. The purpose of statutes like Section 56-5-2951 is to balance the interests of the State in maintaining safe highways with the rights of the individual in maintaining personal autonomy free from arbitrary or overbearing State action. See Taylor v. S.C. Dep’t of Motor Vehicles, 368 S.C. 33, 37, 627 S.E.2d 751, 753 (Ct. App. 2006); see also Sponar v. S.C. Dep’t of Pub. Safety, 361 S.C. 35, 39, 603 S.E. 2d 412, 415 (Ct. App. 2004), cert. granted Nov. 17, 2005 (holding that, although the license to operate a motor vehicle is a mere privilege that is always subject to revocation or suspension for any cause related to public safety, it cannot be revoked arbitrarily or capriciously). The right balance is struck by requiring motorists, when they believe that a certain SLED policy was violated by law enforcement, to timely make a motion for the hearing officer to consider whether the SLED policy was indeed violated, rather than requiring the Department to prove, in every hearing, that it complied with every major SLED policy. After all, the main goal of summary suspension statutes is not to punish individuals, but to quickly remove dangerous drivers from public highways. See, e.g., State v. Cassady, 662 A.2d 955, 958 (N.H. 1995) (“The primary goal of the administrative license suspension process is to remove irresponsible drivers from the State’s highways as quickly as possible to protect the public . . . [T]he suspension of a driver’s license, when effected for this purpose, is not criminal punishment, but is remedial in nature.”). Certainly, the goal of quickly removing dangerous drivers from public highways would be frustrated if the standards placed upon the Department for meeting its burden of proof were set too high. See Mackey v. Montrym, 443 U.S. 1, 18 (1979) (“The summary and automatic character of the suspension sanction available under the statute is critical to attainment of [its] objectives.”). Thus, the hearing should be limited to only those SLED policies in which the motorist has timely contested the Department’s compliance therewith.

Here, Respondent’s attorney did not mention the SLED implied consent policy 8.12.5(g) until his closing argument when he stated: “. . . [I]n listening to the DataMaster officer’s testimony, one thing she did not testify is that pursuant to regulation 8.125(g) that she checked her mouth before she administered the DataMaster test itself for any foreign objects or false teeth or the like and, therefore, didn’t comply with the regulations before administering the test.” Thus, the Department was not given a sufficient opportunity to respond. Moreover, based on the existing record, it is far from clear that any failure by law enforcement to check Respondent’s mouth materially affected the accuracy or reliability of the tests results or the fairness of the testing procedure.[11] Therefore, the DMVH’s decision should not be affirmed on this ground.

Failure to Tape Respondent’s Conduct at the Incident Site

Respondent also argues that even if hearing officer committed other error in rescinding Respondent’s suspension, the DMVH’s decision should be affirmed based on the fact that the arresting officer violated S.C. Code Ann. § 56-5-2953 (2006) by neither videotaping Respondent’s conduct at the incident site nor producing an affidavit setting forth the reasons why this was not done. I disagree.

Section 56-5-2953(a) states that “a person who violates Section 56-5-2930, 56-5-2933, or 56-5-2945 must have his conduct at the incident site and the breath test site videotaped.” Thereafter, Section 56-5-2953(b) states in pertinent part:

Failure by the arresting officer to produce the videotapes required by this section is not alone a ground for dismissal of any charge made pursuant to Section 56-5-2930, 56-5-2933, or 56-5-2945 if the arresting officer submits a sworn affidavit certifying that the videotape equipment at the time of the arrest, probable cause determination, or breath test device was in an inoperable condition, stating reasonable efforts have been made to maintain the equipment in an operable condition, and certifying that there was no other operable breath test facility available in the county or, in the alternative, submits a sworn affidavit certifying that it was physically impossible to produce the videotape because the person needed emergency medical treatment, or exigent circumstances existed.

At the hearing, during cross-examination, Officer Maglione admitted that he did not videotape Respondent’s conduct at the incident site and that he did not provide the DMVH with an affidavit explaining why this was not done. Nonetheless, because Section 56-5-2951(f) limits the scope of the administrative hearing to a handful of issues, none of which includes the issue of whether the Department complied with Section 56-5-2953, the DMVH’s decision will not be affirmed on this ground. See S.C. Dep’t of Motor Vehicles v. Nelson, 364 S.C. 514, 613 S.E.2d 544 (Ct. App. 2005).

For instance, in Nelson, a motorist’s driver’s license was suspended under Section 56-5-2951 for refusing to submit to chemical testing after being arrested for driving under the influence. The Department’s hearing officer upheld the suspension. However, the circuit court reversed, concluding that the breath test was not offered within three hours of the arrest as required by Section 56-3-2953. The Court of Appeals subsequently reversed the circuit court’s decision and reinstated the suspension. In doing so, the Court of Appeals acknowledged that the Department did not comply with Section 56-5-2953. Nonetheless, the Court held that law enforcement’s non-compliance with Section 56-5-2953 did not warrant the rescission of the motorist’s summary suspension. In making this holding, the Court of Appeals explained:

. . . [N]othing in the code instructs that a failure to comply with section 56-5-2953 warrants the dismissal of prosecution for failure to submit to testing pursuant to section 56-5-2950 . . . Because Nelson did not consent to testing, the scope of the hearing was limited to whether Nelson (1) was lawfully arrested, (2) was advised in writing of his section 56-5-2950 rights, and (3) refused to submit to a test. The hearing officer determined that Nelson had been lawfully arrested, had been advised of his rights, and had refused to submit to the test offered in accordance with section 56-5-2950. The circuit court’s reversal of the hearing officer was outside the purview of the proper scope of review. Accordingly, we find the only relevant issues at the administrative hearing were not in dispute. The circuit court erred in considering the violation of the three-hour videotaping requirement.

Nelson, 364 S.C. at 524-26, 613 S.E.2d at 549-550.

Similarly, I do not think that the DMVH’s decision should be affirmed in this case simply because Officer Maglione failed to provide the DMVH with either a videotape of Respondent’s conduct at the incident site or a sworn affidavit. The scope of the hearing simply did not include the issue of whether or not Section 56-5-2953 was violated. As noted above, where the motorist agrees to testing, the scope of the hearing is 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) 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). Thus, because compliance with Section 56-5-2953 is not a proper issue to be considered at the hearing, the DMVH was correct in not considering it and the DMVH’s decision will not be affirmed on this ground.[12]

ORDER

IT IS THEREFORE ORDERED that the DMVH’s Final Order and Decision is affirmed in part and the case is remanded to the DMVH for a determination, based on the existing record, of whether or not the DataMaster operator’s failure to perform the simulator test materially affected the accuracy or reliability of the tests results or the fairness of the testing procedure.

AND IT IS SO ORDERED.

______________________________

Ralph King Anderson, III

Administrative Law Judge

January 10, 2007

Columbia, South Carolina



[1] The first, fifth and sixth issues presented in this appeal were not addressed in the DMVH’s order. However, Respondent has raised them on appeal and therefore they are addressed below. See I’On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 419, 526 S.E.2d 716, 723 (2000) (“[A] respondent--the “winner” in the lower court--may raise on appeal any additional reasons the appellate court should affirm the lower court’s ruling, regardless of whether those reasons have been presented to or ruled on by the lower court.”).

[2] S.C. Code Ann. § 56-5-2950 (e) (2006) also sets forth that if an officer fails to follow the policies, procedures, or regulations promulgated by SLED, the result of any tests shall be excluded if the “hearing officer finds that such failure materially affected the accuracy or reliability of the tests results or the fairness of the testing procedure.”

[3] A number of other state courts have also held that the burden of proof should be placed on the state agency summarily suspending the driver’s license. See Arizona - Sherrill v. Dep’t of Transp., 799 P.2d 836 (Ariz. 1990); Florida - Gurry v. Dep’t of Highway Safety, 902 So.2d 881 (Fla. Dist. Ct. App. 2005); Hawaii - Kernan v. Tanaka, 856 P.2d 1207 (Haw. 1993); Louisiana - Henry v. State Dept. of Public Safety, 788 So.2d 1286 (La. Ct. App. 2001); Maryland - Motor Vehicle Admin. v. Atterbeary, 796 A.2d 75 (Md. 2002); Minnesota - Kramer v. Comm’r of Public Safety, 706 N.W.2d 231 (Minn. Ct. App. 2005); Missouri - Spinner v. Dir. of Revenue, 165 S.W.3d 228 (Mo. Ct. App. 2005); Nebraska - Valeriano-Cruz v. Neth, 716 N.W.2d 765 (Neb. Ct. App. 2006); New Mexico - State Dep’t of Transp., Motor Vehicle Div. v. Romero, 748 P.2d 30 (N.M. Ct. App. 1987); Oklahoma - Sipes v. State ex rel. Dep’t of Pub. Safety, 950 P.2d 881 (Okla. Civ. App. 1997); Oregon - Cole v. Driver and Motor Vehicles Services Branch, 87 P.3d 1120 (Or. 2004); Pennsylvania - Bureau of Traffic Safety v. Kelly, 335 A.2d 882 (Pa. Commw. Ct.1975); Texas - Texas Dept. of Public Safety v. Sanchez, 82 S.W.3d 506 (Tex. App. 2002); VirginiaMoffitt v. Commonwealth, 434 S.E.2d 684 (Va. Ct. App. 1993) (habitual offender case); Washington - Clement v. State Dept. of Licensing, 35 P.3d 1171 (Wash. Ct. App. 2001); West Virginia- Cunningham v. Bechtold, 413 S.E.2d 129 (W. Va. 1991).

[4] See also City of Florence v. Jordan, 362 S.C. 227, 607 S.E.2d 86 (Ct. App. 2004) (“As does Huntley, [amended Section 56-5-2950 (e)] makes clear . . . 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.”).

[5] Huntley involved the prosecution of a motorist for driving under the influence. The trial court had suppressed the motorist’s breathalyzer test results because the breathalyzer operator tested the breathalyzer machine with a simulator test solution containing an alcohol level of .10% rather than the .08% mandated by statute. On appeal of the case to the South Carolina Supreme Court, the court reasoned that, because the simulator test merely determined the reliability of the breathalyzer machine’s results, it was “irrelevant whether the simulator test [was operated] using an alcohol level of .10 or .08 percent.” Huntley, 349 S.C. at 5, 562 S.E.2d. at 474. The court then concluded:

Even if the breathalyzer operator did not use the simulator test solution at the alcohol concentration required by [Section 56-5-2950], Huntley was not prejudiced. There is no question the breathalyzer machine was operating properly and its results were reliable. Consequently, the trial judge erred by excluding Huntley’s breathalyzer test results.

Id. at 6, 562 S.E.2d. at 474.

[6] The court’s decision in Hunley was premised upon the holding in State v. Chandler, 267 S.C. 138, 226 S.E.2d 553, 555 (1976) that “exclusion of evidence should be limited to violations of constitutional rights and not to statutory violations, at least where the [defendant] cannot demonstrate prejudice at trial resulting from the failure to follow statutory procedures.” 226 S.E.2d at 555.

[7] The Taylor court did not mention Section 56-5-2950(e) in its decision. Instead, it simply relied on the Huntley decision. However, shortly after the Huntley decision, the legislature amended section 56- 5-2950 by adding subsection (e). See Florence v. Jordan, 362 S.C. 227, 232-33, 607 S.E.2d 86, 89 (Ct. App. 2004).

[8] 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 Department did not provide sufficient evidence to prove that the blood sample was collected by qualified medical personnel as is required by Section 56-5-2950(a). Frey, 362 S.C. at 516-517, 608 S.E.2d at 877-78. Instead of deciding itself whether or not the State’s failure to comply with Section 56-5-2950(a) materially affected the accuracy or reliability of the tests results or the fairness of the testing procedure, the court remanded the case to the trial court to make such a determination based on the existing record. Id. at 518-19, 608 S.E.2d at 878-79.

[9] Importantly, Section 56-5-2950 contains many other requirements other than that the test must be performed pursuant to SLED policy.

[10] Certainly, the opportunity to be heard has little value if the Department is not sufficiently apprised, at a time during the hearing in which it can still present evidence, of the issues involved in the hearing.

[11] Notably, during the Department’s closing argument, Officer Bacon stated that she had checked Respondent’s mouth. However, the DMVH hearing officer told her that she could not enter any additional testimony. Moreover, Respondent did not testify at the hearing that she had any foreign material and/or removable dental work in her mouth at the time of the breath test.

[12] Moreover, even if the underlying proceeding were a criminal DUI trial, it is still not clear that the case should be dismissed based on Officer Maglione’s failure to provide either a videotape or sworn affidavit. Notably, Section 56-5-2953(B) states:

. . . [I]n circumstances including, but not limited to, road blocks, traffic accident investigations, and citizens’ arrests, where an arrest has been made and the videotaping equipment has not been activated by blue lights, the failure by the arresting officer to produce the videotapes required by this section is not alone a ground for dismissal. However, as soon as videotaping is practicable in these circumstances, videotaping must begin and conform with the provisions of this section. Nothing in this section prohibits the court from considering any other valid reason for the failure to produce the videotape based upon the totality of the circumstances.

(emphasis added). Here, Officer Maglione initially encountered Respondent while investigating a two vehicle accident in which Respondent was involved. Thus, it appears that, at least initially, Officer Maglione had a valid reason for not videotaping the incident site.


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