OF THE CASE
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.
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.
23, 2007, the DMVH hearing officer issued a Final Order and Decision, in which she
found the following:
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.
Santos now appeals.
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?
STANDARD OF REVIEW
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 appellant 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).
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.
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 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).
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
is hereby ordered that the DMVH’s Final Order and Decision is AFFIRMED.
AND IT IS SO ORDERED.
John D. McLeod
November 29, 2007
Columbia, South Carolina