Thursday, April 19, 2018

SC Administrative Law Court Decisions

SCDMV vs. Dennis Abram Ray

South Carolina Department of Motor Vehicles

South Carolina Department of Motor Vehicles

Dennis Abram Ray





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. § 56-1-1090(c) (Supp. 2006). The Department contends that the DMVH hearing officer ignored DMV Policy VS-001 and erroneously reduced the driver’s license suspension of Respondent James Wesley White (“Respondent”). The Administrative Law Court (“ALC” or “Court”) has jurisdiction to hear 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 as set forth below.


Respondent’s driving record consists of twelve incidences of driving under suspension (DUS), four speeding tickets, one violation for Careless or Negligent driving, one violation for Controlled Substance, and two convictions for being a Habitual Offender. Most of these violations date back to 1999 and 2000, leading up to Respondent’s first Habitual Offender Suspension, and were closely scrutinized at the hearing that is now the subject of the Department’s appeal. On November 10, 2004, Respondent was found to be a “habitual offender” pursuant to S.C. Code Ann. § 56-1-1020. In accordance with S.C. Code Ann. § 56-1-1090(a), his driver’s license was suspended for a five-year period beginning November 10, 2004 and ending November 10, 2009.

On October 26, 2006, pursuant to S.C. Code Ann. § 56-1-1090(c) (Supp. 2006), Respondent filed a petition with the DMVH for a reduction of his habitual offender suspension. In support of good cause, Respondent indicates that he has no violations since he was declared a habitual offender, and that he is a certified and valued diesel technician. Furthermore, Respondent suggested that his controlled substance offense was related to his purchase of a used vehicle, which unknowingly contained a small amount of marijuana hidden in the cab area. Along with his petition, Respondent submitted to the DMVH a copy of his ten-year driving record, which indicated that Respondent had not committed a motor vehicle offense since November 11, 2003.

The DMVH notified the parties that an administrative hearing regarding Respondent’s petition would be held on November 16, 2006. On February 13, 2007, the Department had filed a Notice of Appeal, that referred to S.C. Code § 56-1-1090(c), Policy VS-001 and Guideline (B)(4)(e). The Department stated that § 1090(c) provided it the authority to determine the guidelines for granting sentence reductions, as set forth in Policy VS-00. Under Guideline (B)(4)(e), the Department also stated that Respondent’s prior habitual offender suspension made him ineligible for a reduction.

The hearing was held, as scheduled, on November 16, 2006. Respondent appeared represented by counsel. At the hearing, the DMVH hearing officer questioned Respondent about the extent of his driving record, and specifically focused on the DUS violations that were clustered during 2000. Respondent testified that these violations were the product of poor decision making, and a lack of understanding of the significance of his offenses. Respondent stated to the Court that he now understands the seriousness of the violations and that driving is a privilege. Evidence was proffered to the Court to show that Respondent had paid all but one of his outstanding fines. Respondent also stated his awareness of the need to maintain a valid license moving forward. For the record, Respondent’s mother testified that Respondent has relied upon her and a friend for rides over the past three years. Respondent also proffered affidavits that showed Respondent excelled in his training as a diesel technician, and that he is respected with the highest regard by his employer.

On January 17, 2007, the DMVH hearing officer issued a Final Order and Decision in which he ordered that Respondent’s habitual offender suspension be reduced. The Department now appeals.


1.                  Did the DMVH hearing officer err by failing to consider DMV Policy VS-001 when considering the habitual offender suspension reduction of Respondent?


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) (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). 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, 276 S.C. at 136, 276 S.E.2d 304, 307. 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. Pursuant to ALC Rule 37(B)(1), the Court shall consider the issues set forth in the brief and may disregard broad general statements.


Department Policy VS-001

Section 56-1-1090(c) states in pertinent part:

[U]pon petition to the Division of Motor Vehicle Hearings and for good cause shown, the hearing officer may restore to [a person declared to be a habitual offender] the privilege to operate a motor vehicle in this State upon terms and conditions as the department may prescribe, subject to other provisions of law relating to the issuance of drivers’ licenses. The petition permitted by this item may be filed after two years have expired from the date of the decision of the department finding the person to be an habitual offender. At this time and after hearing, the hearing officer may reduce the five-year period of [subsection] (a) to a two-year period for good cause shown.

S.C. Code Ann. § 56-1-1090(c) (Supp. 2006) (emphasis added). In 2005, the Department issued Department Policy VS-001. Section III(B)(4)(c) of Department Policy VS-001 states:

Once the Department has received a complete, accurate application, a reduction will be granted if the following conditions have been met . . . The applicant must not have driven a motor vehicle since the beginning date of the habitual offender suspension. NOTE: The applicant will have stated under oath that he/she has not driven at all during the habitual offender suspension. If a review of the driving record shows that s/he drove (e.g., a traffic ticket or accident report), the applicant will not be eligible for a reduction.

The Department argues that, based on Respondent’s October 9, 2004 offense, the DMVH hearing officer’s reduction of Respondent’s habitual offender suspension violated Section III(B)(4)(c) of Department Policy VS-001 and therefore constituted error. According to the Department, the DMVH hearing officer was required to follow Department Policy VS-001 because Section 56-1-1090(c) “assigned to the [Department] the responsibility to set standards for the granting of [habitual offender suspension] reductions.”

On March 23, 2007, the ALC issued an En Banc Order addressing this very issue. See S.C. Dep’t of Motor Vehicles v. Cain, 06-ALJ-21-0790-AP (S.C. Admin. Law Ct. March 23, 2007). In that En Banc Order, the ALC held that Department Policy VS-001 does not have the force or effect of law, and that a DMVH hearing officer’s failure to follow Department Policy VS-001 does not per se constitute error. Pursuant to ALC Rule 70(F), the holding of the En Banc Order is binding upon all individual administrative law judges in all subsequent cases. Therefore, the DMVH’s Final Order and Decision will not be reversed on this ground.


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



John D. McLeod

Administrative Law Judge

November 5, 2007

Columbia, South Carolina