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rescinded the driver’s license suspension of Marcy Dulin (“Respondent”).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(“Order”) on April 19, 2007, that rescinded the driver’s license suspension of Respondent.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.
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(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
(d) affected 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).
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).
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) ON APPEAL
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?
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.
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
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.
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
ISSUE (2) ON APPEAL
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.
In this case those parties are the Department and NMBDPS.
Respondent failed to serve the subpoena on the Department and the
subpoena was therefore invalid because of failure to comply with the rule. Thus, the DHO erred in dismissing the case for failure to comply
with an invalid subpoena.
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.
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
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).