Wednesday, September 03, 2014

SC Administrative Law Court Decisions

CAPTION:
SCDMV vs. Perry Duane Ringlein

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Appellants:
South Carolina Department of Motor Vehicles and Anderson Sheriff Department

Respondent:
Perry Duane Ringlein
 
DOCKET NUMBER:
06-ALJ-21-0905-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”) issued November 30, 2006. 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) (2006). The Department contends that the DMVH hearing officer erroneously rescinded the driver’s license suspension of Respondent Perry Duane Ringlein (“Ringlein”). The Administrative Law Court (“ALC”) has jurisdiction to review this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2006). Upon consideration of the briefs, the DMVH’s Final Order and Decision is affirmed.

BACKGROUND

On October 11, 2006, Officer Russell Garrett (“Officer Garrett”) of the Anderson County Sheriff’s Office, while traveling on Highway 29 North in Anderson County, noticed a dark-colored El Camino swerving left of the centerline. After following this vehicle for several miles, Officer Garrett observed the vehicle traveling up to eighty-five miles per hour (mph) in a fifty mph speed limit zone. Because Officer Garrett was in an unmarked patrol vehicle, he requested assistance from another officer in a marked patrol vehicle. Prior to the responding officer’s arrival, the El Camino “took a right-hand turn and immediately stopped off the roadway.” Officer Garrett got out of his vehicle and approached the driver who identified himself as Ringlein. Ringlein admitted to Officer Garrett that he had been drinking that night. Officer Garrett directed Ringlein to exit the vehicle, and Ringlein was read his Miranda rights. Further, Ringlein agreed to perform field sobriety tests. At this point, the responding officer in the area, Officer Eric Russell (“Officer Russell”) of the Anderson County Sheriff’s Office, arrived at the scene while Officer Garrett was conducting the field sobriety tests. According to Officer Garrett, Ringlein failed both sobriety tests and then admitted to having “four to five Coronas.” Officer Garrett informed Officer Russell that Ringlein failed the sobriety tests, and he instructed Officer Russell to take Ringlein into custody and transport him to the Anderson County Detention Center for a DataMaster test.[1] Upon reaching the detention center, Officer Kevin Winn (“Officer Winn”) of the Anderson County Sheriff’s Office read Ringlein his implied consent rights. Ringlein consented to a DataMaster test which Officer Winn administered. Ringlein’s breath sample registered a blood alcohol concentration level of 0.15%. Based on this result, Officer Winn issued Ringlein a Notice of Suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (2006).

Pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (2006), Ringlein filed a request for an administrative hearing to challenge the suspension. DMVH hearing officer, Tracy G. Holland (“DHO Holland”), held an administrative hearing on November 6, 2006. At the onset of the hearing, DHO Holland asked Ringlein’s attorney, “what issues will you be contesting pursuant to section of law 56-5-2951(f)?” Ringlein’s attorney indicated that he was contesting all the issues. Thereafter, Officers Garrett, Russell, and Winn testified. At no point during his testimony did Officer Winn testify, or present any other evidence to show, that he is a certified DataMaster operator. After Officer Winn testified, Ringlein’s attorney requested that DHO Holland rescind Ringlein’s suspension based upon the testimony at the hearing and pursuant to Section 56-5-2951(F).

On November 30, 2006, DHO Holland issued a Final Order and Decision rescinding Ringlein’s suspension. DHO Holland specifically concluded that:

There is no evidence concerning whether the Respondent was advised in writing of his Advisement of Implied Consent Rights, Driving Under the Influence Advisement pursuant to S.C. Code Ann. § 56-5-2950(a) and, therefore, I conclude the suspension can not stand. The arresting officer did not offer any testimony whether he advised the Respondent of the Advisement of Implied Consent Rights, Driving Under the Influence Advisement. There are several versions of the Advisement of Implied Consent Rights concerning the DataMaster test and there was no evidence he was informed of his rights pertaining to driving under the influence and refusing to submit to the DataMaster test. Thereby, all other issues are moot.

Although all other issues are moot, there was no evidence whether the DataMaster test was administered and samples taken pursuant to S.C. Code Ann. § 56-5-2950(f); whether the person who administered the test or took the sample was qualified and certified to administer the test; and whether the DataMaster was working properly.

The Department now appeals.

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(A) (2006 & Supp. 2006); see also S.C. Code Ann. § 56-5-2951(G) (Supp. 2006); (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). See S.C. Code Ann. § 1-23-380(B) (Supp. 2006) (directing Administrative Law Judges to conduct appellate review in the same manner prescribed in Section 1-23-380(A)). 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).

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). 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)). 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

In its appellate brief, the Department challenges the Final Order and Decision of the DMVH by contending that there is substantial evidence in the record to establish that the DataMaster operator gave the correct implied consent advisement to Ringlein, and that the DataMaster operator’s testimony was sufficient to establish that he gave Ringlein his implied consent rights in writing.[2] In response, Ringlein concedes that he was given the correct implied consent advisement, and he was properly advised in writing as to the implied consent test. However, Ringlein contends that the Final Order and Decision of the DMVH should be affirmed based upon an additional sustaining ground.[3] Specifically, Ringlein argues that the Department failed to testify, or present any evidence to show, that: 1) the DataMaster test was administered and samples were taken pursuant to S.C. Code Ann. § 56-5-2951(F) (Supp. 2006); 2) Officer Winn was qualified and certified to administer the DataMaster test; and, 3) the DataMaster machine was working properly.

The Department’s Failure to Challenge All Issues

In its appellate brief, the Department submits that the Final Order and Decision of the DMVH should be vacated based upon five issues on appeal contained within its brief. Ringlein, in his brief, concedes several issues challenged by the Department but argues that the Final Order and Decision of the DMVH should be affirmed based upon the Department’s failure to submit testimony or evidence that it complied with Section 56-5-2951(F). The Department neither challenged this issue in its appellate brief nor did the Department submit a reply brief to address Ringlein’s argument.

In South Carolina, it is well-settled that any fact or determination made by a lower court becomes the law of the case if that issue is not challenged by a party in subsequent litigation. See Biales v. Young, 315 S.C. 166, 432 S.E.2d (1993) (“Failure to argue [the issue] is an abandonment of the issue and precludes consideration on appeal.”); Lindsay v. Lindsay, 328 S.C. 329, 338, 491 S.E.2d 583, 588 (Ct. App. 1997) (“It is a fundamental rule of law that an appellate court will affirm a ruling by a lower court if the offended party does not challenge that ruling.”); Id. (“The unchallenged ruling, ‘right or wrong,’ is the law of the case and requires affirmance.” (quoting Buckner v. Preferred Mut. Ins. Co., 255 S.C. 159, 161, 177 S.E.2d 544, 544 (1970))). As such, the issues regarding Section 56-5-2951(F) have been abandoned by the Department and have become the law of the case.

However, even if it were shown that the Department has not abandoned this issue, the DMVH’s Final Order and Decision will not be vacated as urged by the Department. As stated previously, Section 1-23-660 (Supp. 2006) governs this tribunal’s authority to hear and decide matters arising on appeal from the DMVH. Because this court sits in an appellate capacity when resolving issues on appeal from the DMVH, this court may resolve the instant matter by considering Ringlein’s additional sustaining ground submitted in his brief. See Huggins v. Metts, 371 S.C. 621, 624, 640 S.E.2d 465, 467 (Ct. App. 2006) (stating that although lower court did not decide a particular issue, pursuant to SCACR 220(c), appellate court “may affirm any ruling, order, decision, or judgment upon any ground(s) appearing in the Record on Appeal”); Palmetto Homes, Inc. v. Bradley, 357 S.C 485, 490, 593 S.E.2d 480, 483 (Ct. App. 2004) (“An appellate court may affirm the [lower court’s] ruling using any sustaining grounds that are both raised by the respondent’s brief and found within the record.”); I’On, 338 S.C. at 420, 526 S.E.2d at 723; SCACR 220(c) (“The appellate court may affirm any ruling, order, decision, or judgment upon any ground(s) appearing in the Record on Appeal.”); ALC Rule 68 (“[t]he South Carolina Rules of Civil Procedure and the South Carolina Appellate Court Rules may, where practicable, be applied in proceedings before the Court to resolve questions not addressed by these rules.”).

Specifically, Ringlein argues that this tribunal should affirm the Final Order and Decision of the DMVH because, among other reasons, the Department failed to establish that Officer Winn was a certified DataMaster operator at the time Ringlein’s test was conducted. Specifically, Respondent argues that “there was simply no evidence presented at the hearing . . . whether the person was both qualified and certified to administer the test.” I agree. 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. If such a hearing is requested, then, pursuant to S.C. Code Ann. § 56-5-2951(F) (Supp. 2006), 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; (3) consented to taking a test pursuant to Section 56-5-2950, and: (a) the reported alcohol concentration at the time of testing was fifteen one-hundredths of one percent or more; (b) the individual who administered the test or took samples was qualified pursuant to Section 56-5-2950; (c) the tests administered and samples obtained were conducted pursuant to Section 56-5-2950; and (d) the machine was working properly.

Further, the Department is required to lay the foundation for the submission of evidence relating to the DataMaster test by showing that a qualified individual administered the DataMaster test. State v. Parker, 271 S.C. 159, 163, 245 S.E.2d 904, 906 (1978); see also State v. Jansen, 305 S.C. 320, 322, 408 S.E.2d 235, 237 (1991) (citing Parker and stating that prior to admitting evidence of the results of a breathalyzer test, the state “must” lay a foundation for such evidence by proving, among other things, that the test was administered by a qualified person)[4] (emphasis added); Parker, 271 S.C. at 163, 245 S.E.2d at 906; S.C. Code Ann. §§ 56-1-286-(O)(4)(b)-(d) (Supp. 2006). Officer Winn neither testified nor presented any evidence, such as his DataMaster card, regarding his qualifications to administer the DataMaster test to Ringlein.

Accordingly, in light of the complete lack of evidence in the record regarding the qualifications of Officer Winn to administer the DataMaster test to Ringlein, DHO Holland’s conclusion that Officer Winn failed to demonstrate that he was a certified DataMaster operator did not constitute error.[5]

ORDER

IT IS THEREFORE ORDERED that the DMVH’s Final Order and Decision is affirmed.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

June 25, 2007

Columbia, South Carolina



[1] The DataMaster machine is the breath alcohol testing device used by SLED. See SLED implied consent policy 8.12.1(A)(2).

[2] Although the Department presented additional issues on this appeal, because the issue discussed herein 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] According to the South Carolina Supreme Court, “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.” I’On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 419, 526 S.E.2d 716, 723 (2000).

[4] The Court in Jansen also held that the foundational requirements stated in Parker do not apply in a case where the accused refuses to submit to blood alcohol testing. Jansen, 305 S.C. at 322, 408 S.E.2d at 237; Parker, 271 S.C. at 163, 245 S.E.2d at 906.

[5] Because no one from the Department appeared at the hearing, Officers Garrett, Russell, and Winn had to present the Department’s case on their own, with no guidance from legal counsel. Thus, it is quite possible that Officer Winn failed to offer testimony or other evidence on his qualifications to administer the DataMaster test only because a lack of adequate instruction on case presentation left him unaware that he needed to provide such evidence. Of course, this Court is unable to entertain such a possibility in ruling on the issues on appeal because it is limited to the record created at the trial level. On the other hand, the finder of fact is permitted, albeit not required, to ask questions of witnesses in a fair and impartial manner if doing so would help him or her in ascertaining the truth of the matters in issue. See State v. Nicholson, 366 S.C. 568, 576-77, 623 S.E.2d 100, 104 (Ct. App. 2005) (quoting State v. Gaskins, 284 S.C. 105, 119, 326 S.E.2d 132, 140-41 (1985)).


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