Thursday, June 21, 2018

SC Administrative Law Court Decisions

Alberto B. Santos, Jr. vs. SCDMV

South Carolina Department of Motor Vehicles

Alberto B. Santos, Jr.

South Carolina Department of Motor Vehicles





This matter is an appeal by Alberto B. Santos, Jr. (“Santos”) 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). Santos claims that the DMVH erroneously upheld his driver’s license suspension. 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.


On January 4, 2007, while on routine patrol in the area of Chuck Daley Boulevard, Officer Robert Wilson (“Officer Wilson”) of the Mt. Pleasant Police Department observed Santos’ vehicle cross the white dividing line twice and then swerve back into its original lane. Soon thereafter, Officer Wilson witnessed Santos’ vehicle drift towards a turn lane only to swerve back into a yield lane to merge onto Coleman Boulevard. Officer Wilson initiated a traffic stop. As he approached Santos’ vehicle, he noticed a strong odor of alcohol. Officer Wilson asked Santos to step from his vehicle and told him that he was under investigation for Driving Under the Influence (“DUI”). Officer Wilson noticed that Santos was unable to stand straight without leaning against his car. He then asked Santos to perform several field sobriety tests. Santos performed poorly on these tests. As a result, Officer Wilson arrested Santos for DUI and read him his DUI advisement and Miranda warnings. Officer Wilson then transported Santos to the Mt. Pleasant Police Station where Officer R.D. Swinton (“Officer Swinton”) administered the Datamaster test.

Officer Swinton is a certified Datamaster operator. At the police station, Officer Swinton read Santos his Miranda rights and advised Santos of his “DUI advisements”. Both Officer Swinton and Santos signed the DUI advisement, at which time Santos was again read his Miranda rights. After a twenty (20) minute observation period, Santos refused to submit to a breath test. Based on this refusal, Officer Swinton issued Santos 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), Santos filed a request for an administrative hearing to challenge the suspension. An administrative hearing was held on February 5, 2007. Officers Wilson and Swinton appeared at the hearing on behalf of the South Carolina Department of Motor Vehicles (“Department”), but were not assisted by counsel. Santos was represented by his attorney at the hearing.

At the hearing, Officer Wilson testified that he read Santos “his DUI advisement”. (R. at 5). Officer Swinton testified that Santos was “advised of the DUI advisements, which was signed by myself and Mr. Santos.”(R. at 6). Furthermore, Officer Swinton testified that Santos “was given a copy of all pertinent information [including] a breath alcohol analysis test report, notice of suspension, a BA supplemental and the DUI advisements.” (R. at 7). Lastly, Officer Swinton entered into evidence completed copies of the SLED-issued “Driving Under the Influence Advisement” form, the notice of suspension, and the breath alcohol analysis test report, all of which had been signed by Santos. (R. at 28, 29, 30, respectively). Santos’ attorney did not present any evidence at the hearing but argued that the suspension should be overturned because Datamaster ticket was not time stamped.

On February 23, 2007, the DMVH hearing officer issued a Final Order and Decision, in which she found the following:

Counsel for Respondent argued that the testing procedures were not followed according to SLED policies and procedures because the DataMaster ticket was not stamped. The Officer testified that he waited twenty minutes before requesting a breath sample. There was no prejudice shown against Respondent because the ticket was not time stamped. The end result would have been the same because Respondent refused to submit to the test.

See (R. at 22).

Santos now appeals.


1.      Was it error for the DMVH hearing officer to uphold the suspension of Santos’ license after it was determined that the DataMaster ticket was not time stamped?


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).

Thus, pursuant to the APA, this Court’s review is limited to deciding whether the DMVH’s Final Order and Decision is unsupported by substantial evidence or is affected by an error of law. Bass v. Kenco Group, 366 S.C. 450, 457, 622 S.E.2d 577, 581 (Ct. App. 2005). Substantial evidence is not a mere scintilla of evidence, nor the evidence viewed blindly from one side of the case, but is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion the agency reached in order to justify its action. Hargrove v. Titan Textile Co., 360 S.C. 276, 289, 599 S.E.2d 604, 611 (Ct. App. 2004). The possibility of drawing two inconsistent conclusions from the evidence does not prevent the agency’s findings from being supported by substantial evidence. Id. at 290, 599 S.E.2d at 611. The party challenging an agency’s decision has the burden of proving convincingly that the agency’s decision is unsupported by substantial evidence. Waters v. S.C. Land Resources Conservation Comm’n, 321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996).


Santos contends that the DMVH hearing officer erred in sustaining the suspension of Appellant’s driving privileges when the DataMaster operator failed to time stamp the DataMaster ticket. I disagree.

The Department argues, and I concur, that South Carolina case law overwhelmingly renounces Santos’ position. See State v. Jansen, 305 S.C. 320, 408 S.E.2d 235 (1991) (holding that where there is no breath test employed, “the Parker precautions[2] do not apply” as there are “no test results which required protection from improper testing procedures.”); S.C. Dep’t. of Motor Vehicles v. Nelson, 364 S.C. 514, 613 S.E.2d 544 (Ct. App. 2005) (holding that failure to conduct a breath test within three hours of arrest has no effect where the motorist withholds his consent to testing.); Ex parte Horne, 303 S.C. 30, 397 S.E.2d 788 (Ct. App. 1990) (holding that “the Department can suspend a driver’s license of a person arrested for driving under the influence where the person refused a request to submit to a breath test notwithstanding the absence of proof that the person who made the request observed the accused for 20 minutes prior to making the request.”).

Here, Officer Swinton testified that Santos’ mouth was checked and “a 20 minute observation period was conducted….” (R. at 6). Officer Swinton also testified that Santos “was given the opportunity to provide a breath sample which he refused.” (R. at 7). Furthermore, Officer Swinton entered into evidence completed copies of the SLED-issued “Driving Under the Influence Advisement” form, the notice of suspension, and the breath alcohol analysis test report, all of which had been signed by Santos. (R. at 28, 29, 30, respectively). Importantly, the SLED-issue “Driving Under the Influence Advisement” form, which was signed by Santos, provides the following: “…(D) Time stamp Breath Alcohol Analysis Test Report. (Not required if a refusal has occurred.)” (R. at 28) (emphasis added).

Based on the foregoing evidence, which was not contradicted, I find that substantial evidence supports the DMVH hearing officer’s finding that Officer Swinton observed the appropriate procedures. Moreover, because Santos refused to submit to a breath test, there is no merit in his contention that his suspension should be rescinded because the DataMaster ticket was not time stamped. Accordingly, the DMVH hearing officer’s Final Order and Decision must be affirmed.


It is hereby ordered that the DMVH’s Final Order and Decision is AFFIRMED.



John D. McLeod

Administrative Law Judge

November 29, 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] The Parker Court established four elements that must be proved by the State prior to the admission of breathalyzer test results. The are as follows: that the machine was in proper working order at the time of the test; that the correct chemicals had been used; that the accused was not allowed to put anything in his mouth for twenty minutes prior to the test; and that the test was administered by a qualified person in the proper manner. See State v. Parker, 271 S.C. 159, 245 S.E. 2d 904 (1978).