Wednesday, July 23, 2014

SC Administrative Law Court Decisions

CAPTION:
SCDMV vs. David Carl Hughes

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Appellant:
South Carolina Department of Motor Vehicles

Respondent:
David Carl Hughes
 
DOCKET NUMBER:
06-ALJ-21-0435-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 following an administrative hearing held pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (Supp. 2004). The Department claims that the DMVH erroneously rescinded the suspension of Respondent’s driver’s license. The Administrative Law Court (“ALC” or “Court”) has jurisdiction to hear this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2006). Upon consideration of the Department’s brief,[1] the DMVH’s Final Order and Decision is reversed as set forth below.

BACKGROUND

On January 22, 2006, Deputy Bagwell of the Spartanburg County Sheriff’s Department observed Respondent’s vehicle weave in its lane and cross the lane divider. Deputy Bagwell initiated a traffic stop. While speaking with Respondent, Deputy Bagwell smelled alcohol on Respondent’s breath and noticed that Respondent appeared “very lethargic.” Deputy Bagwell asked Respondent to complete three field sobriety tests. Based on Respondent’s performance on the field sobriety tests, Deputy Bagwell concluded that Respondent was impaired. Deputy Bagwell arrested Respondent for driving under the influence (“DUI”) and transported him to the Spartanburg County Detention Facility for a breath test. Respondent refused to submit to the test. Based on this refusal, Deputy Bagwell issued Respondent a Notice of Suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (Supp. 2004).

Thereafter, pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (Supp. 2004), Respondent filed a request for an administrative hearing to challenge the suspension. An administrative hearing was held on February 21, 2006. At the hearing, Deputy Bagwell testified, without objection, that he offered Respondent a breath test “in accordance with State laws and SLED policies.” Deputy Bagwell did not offer any further testimony or other evidence to demonstrate which specific State laws and SLED policies were followed, and he was not cross-examined on this issue. Later in the hearing, Respondent’s attorney asked Respondent, “[I]s the officer’s testimony fairly correct as far as what happened that night?” Respondent answered, “Yes, sir.” At no point during the hearing did Respondent present any evidence to show that the breath test was improperly administered.

On March 22, 2006, the DMVH hearing officer issued a Final Order and Decision, in which he found that the breath test was given in accordance with State law and SLED policies, and that Respondent refused testing. Nevertheless, the hearing officer rescinded Respondent’s suspension. In doing so, he explained that “[t]here being no evidence corroborating Deputy Bagwell’s testimony concerning what State Law and SLED Policies are, I conclude as a matter of law that the Petitioner has failed to meet its burden of proof.” The Department now appeals.

ISSUE ON APPEAL[2]

1.      Was it error for the DMVH hearing officer to rescind Respondent’s suspension on the grounds given in his Final Order and Decision?

STANDARD OF REVIEW

The DMVH is authorized by law to determine contested cases arising from the Department. See S.C. Code Ann. § 1-23-660 (Supp. 2006). Therefore, the DMVH is an “agency” under the Administrative Procedures Act (“APA”). See S.C. Code Ann. § 1-23-310(2) (2005). As such, the APA’s standard of review governs appeals from decisions of the DMVH. See S.C. Code Ann. § 1-23-380 (Supp. 2006); 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). The standard used by appellate bodies, including the ALC, to review agency decisions is provided by S.C. Code Ann. § 1-23-380(A)(5) (Supp. 2006).[3] This section provides:

The court may not substitute its judgment for the judgment 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 [of the agency] 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)(5) (Supp. 2006).

DISCUSSION

The DMVH hearing officer rescinded Respondent’s suspension on the grounds that there was no evidence submitted “corroborating Deputy Bagwell’s testimony concerning what State Law and SLED Policies are.” The Department argues that it was error to rescind Respondent’s suspension on this basis. I agree.[4]

The scope of a 56-5-2951(B)(2) hearing must be limited to whether the motorist: (1) was lawfully arrested or detained; (2) was advised in writing of the rights enumerated in Section 56-5-2950;[5] and (3) refused to submit to a test pursuant to Section 56-5-2950. S.C. Code Ann. § 56-5-2951(F) (Supp. 2004); S.C. Dep’t of Motor Vehicles v. Nelson, 364 S.C. 514, 526, 613 S.E.2d 544, 550 (Ct. App. 2005). Of these three issues, it is clear that Deputy Bagwell’s testimony that the test was administered in accordance with State laws and SLED policies was offered to affirmatively prove the second issue. As SLED policy clearly indicates, one portion of the breath test administration process is the provision of the implied consent rights advisement. See SLED Implied Consent Policy 8.12.5(C)(1). Thus, the real question presented by this appeal is whether the Department sufficiently established that Respondent was advised in writing of the rights enumerated in Section 56-5-2950.

Based on the record, it is clear that the Department met this burden. As noted, Deputy Bagwell testified that he administered the breath test in accordance with State laws and SLED policies. Both State law and SLED policy mandate that motorists who are arrested for DUI be advised in writing of the rights set forth in Section 56-5-2950 prior to the administration of a breath test. For instance, Section 56-5-2950(a) expressly prohibits a breath test from being administered unless the motorist is first advised in writing of the implied consent rights set forth therein. Moreover, SLED Implied Consent Policy 8.12.5(D)(2) requires that SLED’s “Driving Under the Influence Advisement,” which sets forth the rights enumerated in Section 56-5-2950,[6] be read to motorists who are given breath tests for DUI violations. In addition, SLED Implied Consent Policy 8.12.5(E)(1) makes clear that “[t]he advisement process consists of the officer reading any applicable advisements and furnishing the subject a copy.” (emphasis added). Thus, the only reasonable conclusion to draw from Deputy Bagwell’s testimony is that Respondent was advised in writing of the rights enumerated in Section 56-5-2950.

While it is true that the Department failed to offer corroborating evidence to show that Deputy Bagwell administered the breath test in accordance with State laws and SLED policies, such failure did not mandate the rescission of Respondent’s suspension. Deputy Bagwell’s testimony on this matter was uncontradicted, and he was not cross-examined on this issue. See, e.g., Elwood Constr. Co. v. Richards, 265 S.C. 228, 234, 217 S.E.2d 769, 771 (1975) (“[W]hile it is true that the court does not always have to accept uncontradicted evidence as establishing the truth, the same should be accepted unless there is reason for disbelief.”); Cheatham v. Gregory, 313 S.E.2d 368, 370 (Va. 1984) (“A trier of fact must determine the weight of the testimony and the credibility of witnesses, but may not arbitrarily disregard uncontradicted evidence of unimpeached witnesses which is not inherently incredible and not inconsistent with facts in the record . . .”); see also Mackey v. Montrym, 443 U.S. 1, 14 (1979) (noting, in a case involving Massachusetts’ implied consent law, that, because law enforcement officers are personally subject to criminal penalties for willful misrepresentation of the facts, they have “every incentive to ascertain accurately and truthfully report the facts”). Moreover, Deputy Bagwell’s testimony was bolstered by the fact that Respondent agreed that Deputy Bagwell’s testimony was “fairly correct” with respect to what happened on the night of Respondent’s arrest. Finally, because Deputy Bagwell testified that he was certified by the State to administer breath tests, it can be assumed that he was familiar with State laws and SLED policies outlining the proper procedure for administering breath tests. Thus, the Department’s failure to introduce corroborating evidence to show that Deputy Bagwell administered the breath test in accordance with State laws and SLED policies did not mandate the rescission of Respondent’s suspension.

Furthermore, the fact that Deputy Bagwell did not specifically testify as to each and every State law and SLED policy that he followed in administering the breath test to Respondent also did not mandate the rescission of Respondent’s suspension. The Department is not required, in its case in chief, to anticipate and address every conceivable argument for rescission that a motorist might raise. See State v. Bacote, 331 S.C. 328, 333, 503 S.E.2d 161, 164 (1998) (stating that an implied consent hearing “should be a summary administrative proceeding designed to handle license revocation matters quickly”). Here, Respondent had the opportunity, through cross-examination, to elicit further testimony from Deputy Bagwell regarding the specific State laws and SLED policies that he followed in administering the breath test to Respondent. However, Respondent chose not to utilize this opportunity. Therefore, the lack of specificity in Deputy Bagwell’s testimony did not mandate the rescission of Respondent’s suspension.

ORDER

It is hereby ordered that the DMVH’s Final Order and Decision is REVERSED and the Department’s suspension of Respondent’s driver’s license is reinstated.

AND IT IS SO ORDERED.

______________________________

John D. McLeod

Administrative Law Judge

April 16, 2007

Columbia, South Carolina



[1] Respondent failed to submit a brief for this appeal. However, this fact alone does not require this Court to find in favor of the Department. See ALC Rule 38; see also Rule 208(a)(4), SCACR. Nonetheless, in situations such as this one, this Court will not “search the record for reasons to affirm.” See Wierszewski v. Tokarick, 308 S.C. 441, 444, 418 S.E.2d 557, 559 n.2 (Ct. App. 1992).

[2] Although the Department presented an additional issue on this appeal, because the issue discussed herein is dispositive, the other 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).

[3] Pursuant to S.C. Code Ann. § 1-23-380(B) (Supp. 2006), administrative law judges must conduct appellate review in the same manner prescribed in Section 1-23-380(A).

[4] As a preliminary matter, it should be noted that the hearing officer’s Final Order and Decision contains a rather conspicuous inconsistency. In his Conclusions of Law, the hearing officer essentially determines that Deputy Bagwell’s testimony that the breath test was administered in accordance with State laws and SLED policies was too conclusory to carry any weight. He therefore rescinds Respondent’s suspension based on the fact that no evidence was presented to corroborate this testimony. However, in his Findings of Fact, the hearing officer actually finds that the breath test “was given in accordance with State Law and SLED policies.” Thus, one of the hearing officer’s findings of fact is based solely on testimony that the hearing officer discredits later in his order. Based on this inconsistency, remanding this case to the DMVH hearing officer for clarification is arguably warranted. Nevertheless, I do not think that doing so is necessary. Because the hearing officer ultimately decided to rescind Respondent’s suspension, it appears clear that, notwithstanding his Findings of Fact, the hearing officer did not accord any weight to Deputy Bagwell’s testimony.

[5] Section 56-5-2950(a) states in pertinent part:

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.

S.C. Code Ann. § 56-5-2950(a) (Supp. 2004).

[6] See Ronnie M. Cole & James B. Huff, Handling Traffic Cases in South Carolina 341 (Candice Koopman Lockman ed., 4th ed. 2005) (setting forth copy of the “Driving Under the Influence Advisement”).


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