Friday, June 22, 2018

SC Administrative Law Court Decisions

SCDMV vs. Marcy Dulin

South Carolina Department of Motor Vehicles

South Carolina Department of Motor Vehicles

Marcy Dulin





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) (Rev. 2006). The Department claims that the DMVH erroneously rescinded the driver’s license suspension of Marcy Dulin (“Respondent”).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 REVERSED.


On March 20, 2007, Respondent was arrested pursuant to S.C. Code Ann. § 56-5-2930 (2006) for Driving Under the Influence (“DUI”) in the Town of North Myrtle Beach. At the police station, Respondent refused the breath test (by failing to give a sufficient sample), and her driver’s license was suspended under Section 56-5-2951(A). Respondent requested an administrative hearing under Section 56-5-2951(B) to contest her license suspension.

The DMVH hearing was scheduled for April 16, 2007, and the Department Hearing Officer (“DHO”) issued a Final Order and Decision (“Order”) on April 19, 2007,[1] that rescinded the driver’s license suspension of Respondent. The DHO determined that the police officer’s failure to comply with Respondent’s subpoena warranted exclusion of any evidence, including testimony, taken from the documents which were subpoenaed and not produced.


On March 20, 2007, Respondent’s driver’s license was suspended under Section 56-5-2951(A) after she was arrested by the North Myrtle Beach Department of Public Safety (“NMBDPS”) for a DUI and refused to submit to a breath test. Respondent requested an administrative hearing that was scheduled for April 16, 2007.

On April 2, 2007, Respondent served a subpoena on the arresting officer R.R. Pollock (“Pollock”), requesting production of the Data Master videotape, the in-car video of the arrest, a copy of Data Master ticket, and a copy of the Implied Consent form. The subpoena commanded production of the requested materials by April 11, 2007 at 5 p.m.

At the DMVH hearing, on April 16, 2007, Pollock was sworn and allowed to testify by the DHO. Counsel did not object to Pollock’s statements on the record. Pollock stated that Respondent was pulled over because her car was weaving on and off the roadway. Hrg. Trans. 3:22-25. An odor of alcohol was detected emanating from Respondent’s person, which prompted the administration of three (3) field sobriety tests. Pollock testified that Respondent was read her Miranda rights and was arrested after she failed the walk and turn, the one-legged stand and the ABC test. Hrg. Trans. 4:8-12. Pollock informed Respondent that she was being video taped and, again, advised her of the Miranda and Implied Consent rights. Hrg. Trans. 5:1-2. Pollock stated that Respondent was taken to the police station and was placed in a Data Master room where he administered a breath test according to SLED procedures. Hrg. Trans. 4:20-25. Pollock was allowed to enter into the record the Implied Consent Form without objection from Counsel or the DHO. Hrg. Trans. 5:1-11.

Testimony from Pollock continued with a detailed explanation of the protocol that was followed for administering the breath test. Pollock testified that Respondent was unable to give an adequate breath sample. Hrg. Trans. 6:4-19. Pollock also stated that he read the South Carolina Notice of Suspension to Respondent and that the form was completed by Respondent. The DHO provided Counsel an opportunity for cross-examination of Pollock.

Counsel asked Pollock to identify a copy of the subpoena. Pollock stated that he was served with the subpoena. Hrg Trans. 7:7-11. However, Pollock testified that he did not respond to the subpoena because it was not his responsibility. Hrg. Trans. 8:5-16. Counsel stated for the record that Respondent’s refusal of the breath test would have been clearer had Pollock complied with the subpoena. Furthermore, Counsel stated, “The subpoena was properly served on April 2nd, nine days … giving the officer nine to ten days ….” Based on Pollock’s noncompliance, Counsel asked the DHO to dismiss the case. Without addressing any other matters, the DHO announced that the hearing was concluded.

On April 19, 2007, the DHO issued an Order that rescinded the license suspension of Respondent. The Order concluded that Respondent was lawfully arrested, but Pollock’s failure to comply with the subpoena warranted exclusion of any evidence, including testimony, related to the documents that were not produced. As a result, the DHO concluded “there was no evidence that the Respondent was advised in writing of the appropriate Implied Consent Advisement … [and] no evidence that the Respondent refused to take the breath test ….” The DHO concluded that Pollock failed as a matter of law to meet his burden of proof.


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.


1.      Did the DHO err in dismissing the case for failure to comply with a subpoena which required compliance in a shorter time than required by Rule 45?

Pursuant to Rule 22(A) of the Rules of Procedure for the Administrative Law Court (“ALC Rule”) (2006), the party requesting production of documents “shall be responsible for service of the subpoena…in accordance with Rule 45, SCRCP.” As a result, a subpoena that is served upon another party commanding the production of documents must be served at least 10 days before the time specified for compliance. SCRCP Rule 45(b)(1). The party requesting the production of documents can enforce the subpoena by an application to the Administrative Law Judge. See S.C. Code Ann. § 1-23-320(d) (2006). An unexcused failure to respond to the commands of the subpoena will result in the party being held in contempt of court and subject to punishment by fine or imprisonment or both. Id.

In this matter, the record indicates that Respondent obtained a subpoena through Yolanda P. Thorton, DMVH Administrative Coordinator, on March 28, 2007. In the subpoena, Respondent requested production of specific materials by April 11, 2007 at 5 p.m. The Proof of Service, which was also contained in the record, indicated that the subpoena was served by hand-delivery on Pollock on April 2, 2007 at 7:40 p.m. Counsel stated on the record that Pollock was served nine (9) days notice before the time specified for production of the documents.

Although ALC Rule 22(B) permits punishment by fine or imprisonment or both for failure to comply with the subpoena, SCRCP Rule 45(e) states that an adequate excuse for failing to respond to a subpoena exists when the service does not comply with SCRCP Rule 45(b)(1). The service of the subpoena was insufficient for notice purposes under SCRCP Rule 45(b)(1), because Respondent served the subpoena on April 2, 2007 and commanded production of the specified documents by April 11, 2007. Consequently, the Court finds that Pollock’s failure to produce the materials specified in the subpoena was excused, and the DHO was in error for excluding Pollock’s testimony.

Even if the subpoena had been served on Pollock in a timely manner, the DHO was in error for finding that Pollock’s noncompliance warranted exclusion of his testimony and rescission of Respondent’s suspension. Section 1-23-320(d) (2006) anticipates enforcement actions to be initiated prior to the DMVH hearing, and there is no evidence in the record that Respondent ever sought to compel compliance with the subpoena prior to or during the DMVH hearing. See Lowman v. SCDMV, 06-ALJ-21-0388-AP (S.C. Admin. Law Ct. April 22, 2007). Respondent could have filed a Motion to Compel or a Motion for Continuance under ALC Rule 19. See also SCRCP Rule 37(a). Instead, Respondent waited until the date of the hearing and motioned the Court for dismissal of the contested matter after Pollock testified, rather than applying to the Court beforehand for enforcement of the subpoena. See S.C. Code Ann. § 1-23-320(d) (stating that “The administrative law judge division shall, on application of any party to the proceeding enforce by proper proceedings the attendance and testimony of witnesses and the production and examination of books, papers, and records….”)


2.      Did the DHO err in dismissing the case for failure to comply with the subpoena that was invalid based on lack of service to the Department?

ALC rule 5 requires that all papers filed with the Court be served upon all other parties to the contested case.[2]

In this case those parties are the Department[3] and NMBDPS.[4]

Respondent failed to serve the subpoena on the Department and the subpoena was therefore invalid because of failure to comply with the rule.[5] Thus, the DHO erred in dismissing the case for failure to comply with an invalid subpoena.


After examining the evidence in the record on appeal, the Court finds that the DHO was in error for excluding the testimony of the subpoenaed materials. Respondent failed to adhere to the ALC rules of procedure pertaining to service of the subpoena and failed to properly compel production of the materials prior to the DMVH hearing. Pollock was allowed to testify without objection, and the DHO found that Respondent was lawfully arrested. The Court finds that the rescission of Respondent’s suspension should be reversed. [6]

IT IS THEREFORE ORDERED, that the Order of the DHO is REVERSED and the suspension of Respondent’s driving privilege is reinstated.


John D. McLeod, Judge

S.C. Administrative Law Court

April 22, 2008

Columbia, SC

[1] The arrest and the hearing both occurred prior to the effective date of the Rules of Procedure for the DMVH on April 30, 2007. Thus, the procedure in issue here was governed by the Rules of the Administrative Law Court (ALC) and, in the absence of applicable ALC Rules, the South Carolina Rules of Civil Procedure. See S.C. Code Ann. § 1-23-660 (third paragraph); see also SCALC Rule 68.

[2] ALC Rule 5 governing service reads in full as follows: Any document, pleading, motion, brief or memorandum or other paper filed with the Court shall be served upon all parties to the preceding. Service shall be made upon counsel if the party is represented, or if there is no counsel, upon the party. Service shall be made by delivery, or by mail to the last known address. Service is deemed complete upon mailing. Service that complied with Rule 5(b)(1), SCRCP, also shall satisfy this Rule.

[3] Section 1-23-310 (5) defines “Party” as each person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party.

[4] Section 1-23-660 (Supp. 2006) states in part, “For purposes of this section, any law enforcement agency that employs and [sic – “and” is a typographical error and was intended to be “an” – See 2006 Act No. 381, § 2] officer who requested a breath test and any law enforcement agency that employs a person who acted as a breath test operator resulting in a suspension pursuant to Section 56-1-286 or 56-5-2951 is a party to the hearing and shall be served with appropriate notice, afforded the opportunity to request continuances and participate in the hearing, and provided a copy of all orders issued in the action….”

[5] While actual practice may differ, the requirement of ALC Rule 5 that any paper filed with the Court be served on all parties is supported by a similar provision in Rule 5, SCRCP, “Unless otherwise ordered…all…(4) written notices; (5) discovery requests and responses;…(7)demands;…(11) other similar papers shall be served upon each of the parties of record.”

[6] The Court finds that the discussion and the decision pertaining to Issue (1) and Issue (2) On Appeal are dispositive of the remaining issues raised the Department’s brief. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999).