Friday, June 22, 2018

SC Administrative Law Court Decisions

SCDMV vs. Keyes Canterbury Carter

South Carolina Department of Motor Vehicles

South Carolina Department of Motor Vehicles

Keyes Canterbury Carter





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 brief filed by the Department in this matter[1], the DMVH’s Final Order and Decision is reversed as set forth below.


“In South Carolina, operating a motor vehicle is a privilege of the State, not a right of the individual.” Taylor v. S.C. Dep’t. of Motor Vehicles, 368 S.C. 33, 36, 627 S.E.2d 751, 753 (Ct. App. 2006). Consistent with this principle, S.C. Code Ann. § 56-5-2950(a) (2006) provides in pertinent part:

A person who drives a motor vehicle in this State is considered to have given consent to chemical tests of his breath, blood, or urine for the purpose of determining the presence of alcohol or drugs or the combination of alcohol and drugs if arrested for an offense arising out of acts alleged to have been committed while the person was driving a motor vehicle while under the influence of alcohol, drugs, or a combination of alcohol and drugs. A breath test must be administered at the direction of a law enforcement officer who has arrested a person for driving a motor vehicle in this State while under the influence of alcohol, drugs, or a combination of alcohol and drugs.

Importantly, Section 56-5-2950(a) continues 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).


On October 23, 2005, at approximately 10:51 p.m., Officer Hyatt of the Greenville Police Department was called to the scene of a traffic accident in the area of Augusta Road and Ferris Road. At that time, Officer Hyatt spoke with a number of witnesses to the accident, who stated they observed the vehicle driven by Respondent strike a vehicle that was stopped at a red light at the intersection. Upon making contact with Respondent, Officer Hyatt observed a strong odor of alcoholic beverage coming from her person. Respondent began arguing that the other vehicle had backed into her. When asked for her license and registration, Respondent presented her insurance card, and argued with the officer that her insurance card was her registration. Officer Hyatt then observed an open Bud Light can in the floorboard behind the passenger seat and later discovered a 20 oz. plastic Sprite bottle containing a small amount of liquid smelling like alcohol, two more beer cans, and a one liter bottle of vodka with a small amount remaining. Officer Hyatt directed Respondent to exit the vehicle, advised her of her rights, and attempted to administer two field sobriety tests. Respondent was then arrested and taken to the detention center, where Officer Hyatt directed Officer Barker to administer the DataMaster test. In the DataMaster room, Officer Barker read to Respondent Keyes the Miranda warning and the Implied Consent Advisement. Respondent informed him that she did not wish to talk or answer any questions at that time. Officer Barker then readied the DataMaster, waited the 20 minutes, and offered Respondent an opportunity to submit a breath sample. She refused. He then completed the Notice of Suspension, gave her copies of it, the BAC ticket and the Implied Consent Advisement, and had her arraigned.

After SCDMV received a Notice of Suspension from law enforcement, SCDMV suspended Carter’s driver’s license for a period of ninety days in accord with state law. Carter then requested an administrative hearing. On January 24, 2006, AHO Tracy Holland convened the contested case hearing. Officers Hyatt and Barker appeared and testified. AHO Holland subsequently issued an order rescinding Carter’s suspension on the grounds that:

there was no testimony or evidence that Officer Barker advised the Respondent of the Implied Consent Advisement in writing: he did not give her a copy of the Advisement before he offered her a breath test. I conclude as a matter of law that Petitioner failed to meet its burden of proof.

DMV then timely filed the instant appeal.


1.      Did the DMVH hearing officer err when she determined that Officer Barker’s reading of the implied consent advisement form to Respondent did not satisfy the requirements of Section 56-5-2950?


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.


Propriety of Implied Consent Rights Advisement

The Department argues that the DMVH hearing officer erred when she determined that Officer Barker’s reading of the implied consent advisement form to Respondent did not satisfy the requirements of Section 56-5-2950. According to the Department, because 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, the 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, 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 implied consent rights, the officer did not provide the motorist with a written copy of the form. The motorist subsequently requested a hearing to challenge the suspension. The hearing officer sustained the suspension of the motorist’s license, but the circuit court reversed. The Department thereafter appealed to the Court of Appeals, arguing that the circuit court erred because the motorist did not demonstrate how he was prejudiced by the fact that he did not receive a written copy of the form. The Court of Appeals ultimately reversed the circuit court, relying heavily on State v. Huntley, 349 S.C. 1, 5, 562 S.E.2d 472, 474 (2002).[3] 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. 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 sample 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 form to the motorist. Id. Thus, the Court of Appeals held that the circuit court erred in reversing the hearing officer’s order. Id. Therefore, based on Taylor, the Final Order and Decision of the DMVH hearing officer must be reversed.


It is hereby ordered that the DMVH’s Final Order and Decision is REVERSED and the suspension of Respondent’s Driver’s License and privilege to drive REINSTATED.



January 17, 2007 John D. McLeod

Columbia, South Carolina Administrative Law Judge

[1] The Respondent failed to file a brief in this matter.

[2] Although the Department presented additional issues on this appeal, because the implied consent advisement issue is dispositive, the other issues 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).

[3] Huntley involved the prosecution of a motorist for driving under the influence. The trial court in the case 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.