Thursday, April 24, 2014

SC Administrative Law Court Decisions

CAPTION:
SCDMV vs. Sean Burke

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Appellant:
South Carolina Department of Motor Vehicles

Respondent:
Sean Burke
 
DOCKET NUMBER:
06-ALJ-21-0574-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) (2006). The Department contends that the DMVH hearing officer erroneously rescinded the driver’s license suspension of Respondent Sean Burke (“Burke”). The Administrative Law Court (“ALC”) has jurisdiction to review this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2006). Upon review of this matter, the DMVH’s Final Order and Decision is affirmed.

BACKGROUND

On March 25, 2006, Officer Kim Herring (“Officer Herring”) of the Mount Pleasant Police Department arrested Burke for driving under the influence (“DUI”). She transported Burke to a detention center for a DataMaster test. Officer Herring subsequently issued Burke a Notice of Suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (2006) for registering an alcohol concentration of 0.15% or greater on the DataMaster test.

Pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (2006), Burke filed a request for an administrative hearing to challenge the suspension. An administrative hearing was held on April 26, 2006. At the hearing, Officer Herring testified that Burke registered an alcohol concentration of 0.2% on the DataMaster test. Burke, however, testified that he didn’t understand how the results of the DataMaster test could have been 0.2% since he “did not spend enough money” to “hit a .2.” The DataMaster test report was never offered into evidence.

On May 22, 2006, the DMVH hearing officer issued a Final Order and Decision rescinding Burke’s suspension. Among other reasons given for the rescission, the DMVH hearing officer found that the Department failed to sufficiently establish that the DataMaster machine was working properly at the time of Burke’s test. The Department now appeals.

ISSUE ON APPEAL

1.      Did the DMVH hearing officer err by concluding that the Department failed to sufficiently establish that the DataMaster machine was working properly?

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).[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 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

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] Section 56-5-2951, in turn, mandates that the driver’s license of a motorist who registers an alcohol concentration of 0.15% or above on a test conducted pursuant to 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; (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. S.C. Code Ann. § 56-5-2951(F) (2006).

Failure to Establish that the DataMaster Machine was Working Properly

Prior to introducing evidence of the results of a DataMaster test, a foundation for such evidence must be laid by proving, among other things, that the DataMaster machine was in proper working order at the time of the test. See State v. Parker, 271 S.C. 159, 163, 245 S.E.2d 904, 906 (1978); State v. Jansen, 305 S.C. 320, 322, 408 S.E.2d 235, 237 (1991). To determine whether a DataMaster machine is working properly, a simulator test is performed on the DataMaster machine. See State v. Huntley, 349 S.C. 1, 5, 562 S.E.2d 472, 474 (2002); Parker, 271 S.C. at 163, 245 S.E.2d at 906. The result of the simulator test must reflect a reading between 0.076% and 0.084%. S.C. Code Ann. § 56-5-2950(a) (2006).

In many cases, the DataMaster test report itself will sufficiently demonstrate that the machine was working properly, since such reports typically include the result of the simulator test. See Ronnie M. Cole & James B. Huff, Handling Traffic Cases in South Carolina 279-81 (Candace Koopman Lockman ed., 4th ed. 2005) (setting forth copies of DataMaster test reports). At Burke’s hearing, however, the DataMaster test report was not introduced into evidence. Nevertheless, the Department argues that Officer Herring’s testimony that “all other SLED policies were followed” combined with Burke’s statement that “whether I was legally intoxicated, yes, I would guess so” sufficiently demonstrated that the test was working properly. I disagree.

With respect to Officer Herring’s testimony that “all other SLED policies were followed,” the Department has failed to provide this Court with a clear explanation as to why this testimony shows that the DataMaster machine was working properly. As a basic matter, the Department has failed to cite a specific SLED policy that is relevant to the issue of whether the DataMaster machine was working properly. Although such a SLED policy may exist, it is not the duty of this Court to perform legal research for a party. See, e.g., Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala. 1994) (“We have unequivocally stated that it is not the function of this Court to do a party’s legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument.”); Johansen v. State, Dep’t of Natural Resources and Conservation, 955 P.2d 653, 658 (Mont. 1998) (“It is not this Court’s job to conduct legal research on [a party’s] behalf, to guess as to his precise position, or to develop legal analysis that may lend support to that position.”). Accordingly, this Court need not consider whether Officer Herring’s testimony that “all other SLED policies were followed” sufficiently demonstrated that the DataMaster machine was working properly. See Eaddy v. Smurfit-Stone Container Corp., 355 S.C. 154, 164, 584 S.E.2d 390, 396 (Ct. App. 2003) (“This court has noted that short, conclusory statements made without supporting authority are deemed abandoned on appeal and therefore not preserved for our review.”).

Furthermore, Burke’s statement that “whether I was legally intoxicated, yes, I would guess so,” was insufficient to show that the DataMaster machine was working properly. It is simply unclear what Burke meant by the phrase “legally intoxicated.” For instance, Burke may have meant that he guessed that his alcohol concentration level was .08%, the level at which, pursuant to S.C. Code Ann. § 56-5-2933 (2006), it becomes unlawful for a person to operate a motor vehicle in this State. Importantly, the alcohol concentration level required for suspension under the statute at issue here, Section 56-5-2951(A), is 0.15% or greater. Accordingly, the DMVH hearing officer did not err by concluding that the Department failed to sufficiently establish that the DataMaster machine was working properly at the time of Burke’s test.


ORDER

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

AND IT IS SO ORDERED.

______________________________

John D. McLeod

Administrative Law Judge

July 23, 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).


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