Saturday, June 23, 2018

SC Administrative Law Court Decisions

SCDMV vs. Keri Dyan Martin

South Carolina Department of Motor Vehicles

South Carolina Department of Motor Vehicles

Keri Dyan Martin





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 The Department contends that the DMVH hearing officer erroneously rescinded the driver’s license suspension of Respondent Keri Dyan Martin (“Martin”).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.


On 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.

At 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.

At 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. § 56-5-2951(A) (2006).

Thereafter, 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.

On 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.


1.      Does this Court lack the authority to reverse the DMVH’s Final Order and Decision?

2.      Did 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?


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).[1] 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 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.


Summary of Applicable Law

The 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.

Consistent 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).[2] 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).

Section 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).

ALC’s Authority to Reverse the DMVH’s Final Order and Decision

As 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.

Pursuant 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,[3] 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.[4]

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.

Mackey, 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.

With 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.

For these reasons, this Court will not, as Martin urges, affirm the DMVH’s Final Order and Decision without addressing the substantive issues on appeal.

Implied 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 case.

a. 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).[5] 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.

b. Taylor Decision

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).[6] 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.


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




Administrative Law Judge

July 16, 2007

Columbia, South Carolina

[1] 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).

[2] Blood and urine tests may be administered to motorists arrested for DUI only if certain other conditions are met. See S.C. Code Ann. § 56-5-2950(a) (2006).

[3] S.C. Dep’t of Motor Vehicles v. Nelson, 364 S.C. 514, 522, 613 S.E.2d 544, 548 (Ct. App. 2005).

[4] State v. Kerr, 330 S.C. 132, 150, 498 S.E.2d 212, 221 (Ct. App. 1998). As South Carolina courts have noted, driving while under the influence of alcohol or drugs poses a significant risk to others. See State v. Martin, 275 S.C. 141, 146, 268 S.E.2d 105, 107 (1980) (noting that an individual who drives while intoxicated “presents a clear and present danger to the community”); Lydia v. Horton, 343 S.C. 376, 393, 540 S.E.2d 102, 111 (Ct. App. 2000) (noting that there is a “general understanding that driving while intoxicated presents an unreasonable risk of physical harm to the driver and others”), rev’d on other grounds, 355 S.C. 36, 583 S.E.2d 750 (2003).

[5] Similarly, other than a card setting forth the Miranda rights, the implied consent advisement form is generally the only “paperwork” that is read to a motorist prior to the time the motorist either consents to, or refuses, testing. Id.

[6] 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, the South Carolina Supreme 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. Shortly after the Huntley decision was issued, S.C. Code Ann. § 56-5-2950(e) was enacted “to provide additional guidance to our trial courts on when to exclude test results due to the failure to comply with [Section 56-5-2950]’s mandates . . .” City of Florence v. Jordan, 362 S.C. 227, 232, 607 S.E.2d 86, 89 (Ct. App. 2004); see also Act No. 61, § 6, 2003 S.C. Acts 689. Section 56-5-2950(e) provides that “[t]he failure to follow . . . the provisions of this section . . . shall result in the exclusion from evidence any tests results, if the trial judge or hearing officer finds that such failure materially affected the accuracy or reliability of the tests results or the fairness of the testing procedure.” S.C. Code Ann. § 56-5-2950(e) (2006).