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Department contends that the DMVH hearing officer erroneously rescinded the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.
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.
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
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
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
violation of constitutional or statutory provisions;
excess of the statutory authority of the agency;
upon unlawful procedure;
by other error of law;
erroneous in view of the reliable, probative, and substantial evidence on the
whole record; or
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).
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.
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.
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.
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.
Department’s Failure to Challenge All Issues
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.
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.
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.”).
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.
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) (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.
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.
IT IS THEREFORE ORDERED that the DMVH’s Final Order
and Decision is affirmed.
IT IS SO ORDERED.
June 25, 2007
Columbia, South Carolina