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”) dated July 3, 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that the DMVH hearing officer erroneously rescinded the driver’s license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 Keri Dyan Martin (“Martin”). The Administrative Law
Court (“ALC” or “Court”) 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 reversed.
May 6, 2006, Officer J. Caddell (“Officer Caddell”) of the City of Orangeburg was dispatched to an accident. Upon arriving at the scene of the accident, he
observed a silver Volkswagen, which had struck a fence and several other
vehicles in a parking lot. Martin, who had swelling and bruising around her right
eye, approached Officer Caddell and began speaking with him. Martin told
Officer Caddell that she had been drinking all night and that her friends had
let her drive. She also stated that she just left Edison’s, a nearby bar, and
that she was “f***ed up.” Officer Caddell noticed “a strong odor of alcohol”
coming from Martin. Officer Caddell read Martin her rights and informed Martin
that she was being videotaped by his in-car camera. Officer Caddell started to
conduct several field sobriety tests on Martin, but Martin began acting
belligerent. She started screaming that her friends had dropped her off and
that she had not been driving.
that time, EMS arrived at the scene. Martin was transported to the hospital. Officer
Caddell searched the Volkswagen and found an open container of alcohol. After
the scene of the accident was cleared, Officer Caddell meet with Martin at the
hospital. Once Martin was discharged from the hospital, Officer Caddell
arrested her for driving under the influence (“DUI”), and transported her to a
detention center for a breath test.
the detention center, Officer Caddell asked Officer Thomas Gibson (“Officer
Gibson”) to administer a DataMaster test to Martin. According to the officers,
Martin was belligerent and uncooperative during the testing process. Near the
end of the twenty-minute observation period, Martin, who was separated by the
officers by Plexiglas, stood up and starting screaming into the video camera,
“Help me. Let me out of here.” Because Martin would not sit down after
Officer Gibson asked her to, Officer Gibson recorded the incident as a refusal.
Martin was issued a Notice of Suspension pursuant to S.C. Code Ann. §
pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (2006), Martin filed a request for
an administrative hearing to challenge the suspension. An administrative
hearing was held on June 5, 2006. Officer Caddell and Officer Gibson testified
at the hearing on behalf of the Department. Martin neither testified at the
hearing nor presented any other evidence.
July 3, 2006, the DMVH hearing officer issued a Final Order and Decision, in
which he rescinded Martin’s suspension. Specifically, the hearing officer
concluded that “there was no testimony that [Martin] was advised of the Implied
Consent Advisement in writing prior to being offered an opportunity to submit
to a breath test.” The Department now appeals.
this Court lack the authority to reverse the DMVH’s Final Order and Decision?
the DMVH hearing officer err by rescinding Martin’s suspension on the grounds
that the Department failed to demonstrate that Martin was given the implied
consent advisement in writing?
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).
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 Martin have been
prejudiced because the administrative findings, inferences, conclusions, or
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).
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.
of Applicable Law
license to operate a motor vehicle upon the public highways of this State is
not a right, but a mere privilege that is subject to reasonable regulations in
the interests of public safety and welfare. State v. Newton, 274 S.C.
287, 294, 262 S.E.2d 906, 910 (1980); State v. Kerr, 330 S.C. 132, 149,
498 S.E.2d 212, 220-21 (Ct. App. 1998). This privilege is always subject to
revocation or suspension for any cause relating to public safety. S.C. State Hwy. Dep’t v. Harbin, 226 S.C. 585, 595, 86 S.E.2d 466, 470
(1955). However, it cannot be revoked arbitrarily or capriciously. Id.
with these principles, the Legislature enacted S.C. Code Ann. § 56-5-2950 (2006)
and S.C. Code Ann. § 56-5-2951 (2006). Section 56-5-2950 declares that a
motorist arrested for DUI implicitly consents to a chemical test of his breath,
blood or urine for the purpose of determining the presence of alcohol or drugs,
and it requires that, at the direction of the arresting officer, a breath test
be administered to a motorist so arrested. S.C. Code Ann. § 56-5-2950(a) (2006).
However, Section 56-5-2950 also provides that, before any type of chemical test
is administered, the motorist must be 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) (2006).
56-5-2951, in turn, mandates that the driver’s license of a motorist who
refuses to submit to a test required by Section 56-5-2950 be immediately suspended. See S.C. Code Ann. § 56-5-2951(A) (2006). However, Section
56-5-2951 also grants motorists the right to request an administrative hearing
to challenge such suspensions. S.C. Code Ann. § 56-5-2951(B)(2) (2006). If
such a hearing is requested, the scope of the 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; and (3) refused to
submit to a test pursuant to Section 56-5-2950. S.C. Code Ann. § 56-5-2951(F)
(2006); see also S.C. Dep’t of Motor Vehicles v. Nelson, 364 S.C.
514, 526, 613 S.E.2d 544, 550 (Ct. App. 2005) (discussing S.C. Code Ann. §
56-5-2951(H) (Supp. 2002), a precursor to S.C. Code Ann. § 56-5-2951(F) (2006)).
According to the South Carolina Supreme Court, a Section 56-5-2951 hearing
should be a “summary administrative proceeding designed to handle license
revocation matters quickly.” See State v. Bacote, 331
S.C. 328, 333, 503 S.E.2d 161, 164 (1998).
Authority to Reverse the DMVH’s Final Order and Decision
an initial matter, Martin argues that this Court does not have the authority to
reverse the DMVH’s Final Order and Decision because the Department has failed
to argue and, according to Martin, “nothing in this record even remotely
suggests” that substantial rights of the Department were prejudiced by the DMVH’s
Final Order and Decision. I disagree.
to Section 1-23-380(A)(5), the ALC may reverse a decision of the DMVH where an
error has caused (1) substantial rights of the appellant (2) to be prejudiced.
With respect to the first requirement, the right of the Department, as a State
agency, to implement the administrative suspension of a motorist who refuses to
submit to chemical testing is a substantial right. The State has a strong
interest in maintaining the safety of its roads, and the purpose of administratively suspending a motorist’s license for
refusing to submit to chemical testing is to protect those who use such roads.
In Mackey v. Montrym, 443 U.S. 1 (1979), the United States Supreme Court
explained how, with respect to the Massachusetts implied consent law, a State’s
interest in public safety is “substantially served” by the summary suspension
of those motorists who refuse to submit to breath testing:
First, the very
existence of the summary sanction of the statute serves as a deterrent to
drunken driving. Second, it provides strong inducement to take the
breath-analysis test and thus effectuates the Commonwealth’s interest in
obtaining reliable and relevant evidence for use in subsequent criminal
proceedings. Third, in promptly removing such drivers from the road, the
summary sanction of the statute contributes to the safety of public highways.
443 U.S. at 18. Similarly, the South Carolina Court of Appeals has also
recognized the important function that such suspensions serve. See Nelson,
364 S.C. at 522, 613 S.E.2d at 548-49 (“Were drivers free to refuse alcohol and
drug testing without suffering penalty, the current system of detecting,
testing, and prosecuting drunk drivers would simply fail.”). Therefore, as the
aforementioned cases make clear, the Department’s right to implement Martin’s
administrative suspension is a substantial right.
regard to the second requirement, errors that affect the outcome of a case are
prejudicial. See, e.g., State v. Covert, 368 S.C. 188,
628 S.E.2d 482 (Ct. App. 2006) (remanding case after finding that legal error
“could have reasonably affected the result of the trial”). Here, the
Department is arguing that the sole basis given by the hearing officer for
rescinding Martin’s suspension is permeated with error. Therefore, if the
Department is correct, then the Department was prejudiced by this error.
these reasons, this Court will not, as Martin urges, affirm the DMVH’s Final
Order and Decision without addressing the substantive issues on appeal.
Consent Rights Advisement
The Department argues that the DMVH hearing officer
erred by rescinding Martin’s suspension on the grounds that there was no
testimony offered to show that Martin was advised in writing of her implied
consent rights. Specifically, the Department argues that Officer Gibson’s
testimony sufficiently established that Martin was orally advised of her
implied consent rights, and that, therefore, the fact that Officer Gibson did
not specifically testify that he advised Martin in writing of her
implied consent rights did not warrant rescission of Martin’s suspension since
Martin failed to demonstrate prejudice. In making this argument, the
Department cites Taylor v. S.C. Dep’t of Motor Vehicles, 368 S.C. 33,
627 S.E.2d 751 (Ct. App. 2006). Martin, however, argues that the Department
did not sufficiently demonstrate that Martin was orally advised of her implied
consent rights and that Taylor is therefore inapplicable to the present
Evidence of Oral Advisement
At the hearing, Officer Gibson testified that, prior to
Martin’s refusal, he “advised Ms. Martin of her rights,” he read “all the paperwork” to her, and he explained to her “what was going to happen.”
I conclude that the foregoing evidence was sufficient to
show that Martin was orally advised of her implied consent rights. First, other
than the Miranda rights, the implied consent rights are the only rights that
are statutorily required to be given to motorists prior to the administration,
pursuant to Section 56-5-2950, of chemical testing. See S.C. Code Ann.
§§ 56-5-2950(a), 56-5-2953(A)(2)(b) (2006).
Second, Martin had the opportunity, through cross-examination, to elicit more
specific testimony from Officer Gibson regarding the rights that she was
advised of, but Martin chose not to utilize this opportunity. See State
v. Hyder, 242 S.C. 372, 131 S.E.2d 96 (1963) (rejecting defendant’s claim
that trial court erred by admitting into evidence field glasses that were
identical with the ones used by State’s witness where defendant simply
speculated that original field glasses might have been defective and did not cross-examine
State’s witness on the issue). Finally, there is nothing in the record that
suggests that Martin was not orally advised of her implied consent rights.
For these reasons, I conclude that the Department
sufficiently established that Martin was orally advised of her implied consent
rights. Having made this conclusion, I will now discuss the applicability of
the Taylor decision to the present case.
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 DUI. Although the arresting officer read out loud to
the motorist a copy of the implied consent form, the officer did not provide
the motorist with a tangible 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. On
further appeal to the Court of Appeals, the Court of Appeals reversed the
circuit court, relying on State v. Huntley, 349 S.C. 1, 5, 562 S.E.2d
472, 474 (2002).
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. It therefore concluded that the
motorist was not prejudiced by the fact that the arresting officer did not
provide him with a tangible copy of the implied consent advisement form. Id. Thus, the Court of Appeals held that the circuit court erred in reversing the hearing
officer’s order. Id.
Here, Martin has not presented any evidence to show that
she suffered prejudice as result of not being advised in writing of her implied
consent rights. Moreover, the record demonstrates that Martin was heavily
intoxicated, and that Officer Gibson recorded the incident as a refusal because
Martin refused to cooperate with him. Under these circumstances, it seems
doubtful that being handed a copy of the implied consent form would have had
any effect on Martin’s behavior. Thus, this Court concludes that Martin was
not prejudiced by any failure by Officer Gibson to advise Martin in writing of
her implied consent rights prior to Martin’s refusal. Accordingly, the DMVH
hearing officer’s Final Order and Decision must be reversed.
IS THEREFORE ORDERED that the DMVH’s Final Order and Decision is REVERSED.
IS SO ORDERED.
CAROLYN C. MATTHEWS
July 16, 2007
Columbia, South Carolina