Thursday, April 24, 2014

SC Administrative Law Court Decisions

CAPTION:
SCDMV, et al vs. Michael W. Tighe

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Petitioners:
South Carolina Department of Motor Vehicles and Columbia Police Department

Respondents:
Michael W. Tighe

Appellant:
South Carolina Department of Motor Vehicles
 
DOCKET NUMBER:
06-ALJ-21-0912-AP

APPEARANCES:
 

ORDERS:

ORDER

STATEMENT OF THE CASE

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 (2006 & Supp. 2006). The Department contends that the DMVH hearing officer erred by rescinding the driver’s license suspension of Respondent Michael W. Tighe (Tighe) on the grounds that law enforcement failed to comply with S.C. Code Ann. § 56-5-2934 (2006). The Administrative Law Court (ALC or Court) has jurisdiction to review this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2007). Upon consideration of the briefs, the DMVH’s Final Order and Decision is reversed.

BACKGROUND

On October 12, 2006, Officer Christopher G. Price of the Columbia Police Department arrested Tighe for driving under the influence (DUI). He transported Tighe to a detention center for a DataMaster test. Tighe subsequently refused to submit to the DataMaster test and was issued a Notice of Suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (2006).

Thereafter, Tighe filed a request with the DMVH for an administrative hearing to challenge the suspension. An administrative hearing was held on November 8, 2006. Officer Price appeared at the hearing, but was not assisted by counsel. Tighe appeared at the hearing and was represented by his attorney.

At the hearing, Tighe’s attorney asked Officer Price “other than Miranda, was there any other advisement given [Tighe] at the time of arrest?” Officer Price replied, “No, sir.” However, Officer Price also testified that, prior to requesting a breath sample from Tighe, he gave Tighe a copy of the implied consent advisement and that he read the implied consent advisement “in its entirety” to Tighe. In his closing statement, Tighe’s attorney argued for the rescission of Tighe’s suspension on the grounds that Officer Price failed to give Tighe the “abbreviated implied consent advisement” required by Section 56-5-2934 “at the time of [Tighe’s] arrest.”

On December 6, 2006, the DMVH hearing officer issued a Final Order and Decision rescinding Tighe’s suspension. Specifically, the hearing officer held in pertinent part:

There was no testimony of Petitioner’s witness advising Respondent of the “Roadside D.U.I. Advisement.” Section 56-5-2934 requires the reading of the right to a chemical test and the language is mandatory. It is undisputed that Petitioner’s witness advised Respondent of the Advisement of Implied Consent Rights while in the DataMaster room. . . . I conclude as a matter of law that the investigating officer failed to satisfy all issues within the scope of an implied consent refusal hearing.

The Department now appeals.

ISSUES ON APPEAL

1.      Does the Department lack standing to bring this appeal?

2.      Does the Record’s lack of conformity with ALC Rule 36(C) mandate dismissal of the Department’s appeal?

3.      Did the Department fail to preserve any issues for appeal?

4.      Did the DMVH hearing officer err by rescinding Tighe’s suspension on the grounds that Officer Price failed to advise Tighe of his Section 56-5-2934 rights at the location where Tighe was initially taken into custody?

STANDARD OF REVIEW

The DMVH is authorized by law to determine contested cases arising from the Department. See S.C. Code Ann. § 1-23-660 (Supp. 2007). 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. 2007); 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. 2007).[2] 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. 2007).

DISCUSSION

Implied Consent Laws – Generally

The license to operate a motor vehicle upon the public highways of this State is not a right, but a privilege that is subject to reasonable regulations in the interests of public safety and welfare. State v. Newton, 274 S.C. 287, 294, 262 S.E.2d 906, 910 (1980). This privilege is always subject to revocation or suspension for any cause relating to public safety. S.C. State Hwy. Dep’t v. Harbin, 226 S.C. 585, 595, 86 S.E.2d 466, 470 (1955). However, it cannot be revoked arbitrarily or capriciously. Id.

Consistent with these principles, the legislature enacted S.C. Code Ann. § 56-5-2950 (2006) and S.C. Code Ann. § 56-5-2951 (2006 & Supp. 2006). Section 56-5-2950 declares that a motorist arrested for DUI implicitly consents to a chemical test of his breath, blood or urine for the purpose of determining the presence of alcohol or drugs, and it requires that, at the direction of the arresting officer, a breath test be administered to a motorist so arrested. S.C. Code Ann. § 56-5-2950(a) (2006).[3] However, Section 56-5-2950 also provides that, before any type of chemical test is administered, the motorist must be informed in writing that:

(1) he does not have to take the test or give the samples, but that his privilege to drive must be suspended or denied for at least ninety days if he refuses to submit to the tests and that his refusal may be used against him in court; (2) his privilege to drive must be suspended for at least thirty days if he takes the tests or gives the samples and has an alcohol concentration of fifteen one-hundredths of one percent or more; (3) he has the right to have a qualified person of his own choosing conduct additional independent tests at his expense; (4) he has the right to request an administrative hearing within thirty days of the issuance of the notice of suspension; and (5) if he does not request an administrative hearing or if his suspension is upheld at the administrative hearing, he must enroll in an Alcohol and Drug Safety Action Program.

S.C. Code Ann. § 56-5-2950(a) (2006).

Section 56-5-2951, in turn, mandates that the driver’s license of a motorist who refuses to submit to a test required by Section 56-5-2950 be immediately suspended. See S.C. Code Ann. § 56-5-2951(A) (2006). Section 56-5-2951 nevertheless grants motorists the right to request an administrative hearing to challenge such suspensions. S.C. Code Ann. § 56-5-2951(B)(2) (2006). If such a hearing is requested, the scope of the hearing must be limited to whether the motorist: (1) was lawfully arrested or detained; (2) was advised in writing of the rights enumerated in Section 56-5-2950; and (3) refused to submit to a test pursuant to Section 56-5-2950. S.C. Code Ann. § 56-5-2951(F) (Supp. 2006).

Standing

As an initial matter, Tighe argues that the Department lacks standing to appeal the DMVH hearing officer’s decision in this matter.[4] As discussed below, I disagree.

“There is a strong presumption in favor of judicial review of administrative actions, and prohibitions against judicial review are to be narrowly construed.” 2 Am. Jur. 2d Administrative Law § 446 (2004). The presumption of judicial review may be overcome by: (1) specific language; (2) specific legislative history that is a reliable indicator of legislative intent; or (3) specific legislative intent that is fairly discernible in the detail of the legislative scheme. Id. In the absence of statutory language expressly excluding review, a court determines whether, and to what extent, the relevant statute precludes judicial review by examining the structure and history of the statute to determine whether the requisite legislative intent to bar judicial review is clearly established. Id. at § 447.

With respect to governmental entities, an analysis of standing must consider the following two factors:

(1) the entity’s authority (and restrictions on that authority) under relevant constitutional provisions, statutes, regulations, and case law; and

(2) the nature of the interest asserted by the entity in support of its standing.

Richard H. Seamon, Administrative Agencies: General Concepts and Principles, South Carolina Administrative Practice & Procedure 80 (Randolph R. Lowell & Stephen P. Bates eds., 2004).

Here, the statute at issue, S.C. Code Ann. § 1-23-380(A) (Supp. 2007), provides in pertinent part:

A party who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this article, Article 1, and Article 5.

Thus, to ascertain whether an entity has standing to appeal under Section 1-23-380(A), a court must determine: (1) whether the entity appealing was a party to the underlying proceeding; and (2) whether the entity is in fact aggrieved, or adversely affected, by the agency action. David E. Shipley, South Carolina Administrative Law 7-24 (2d. ed. 1989). Both of these requirements are addressed below.

1. Was the Department a “Party” to the DMVH Proceeding?

The APA defines the term “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.” S.C. Code Ann. § 1-23-310(5) (2005). Clearly, the Department is charged with administering the laws regulating motorist’s licenses. See S.C. Code Ann. § 61-2-20 (Supp. 2007) (stating that the Department of Revenue “must administer the provisions of this title”) & S.C. Code Ann. § 56-5-2951(O) (2006) (stating that the Department “must administer the provisions of this section”). Moreover, in this case, the Department was clearly named as a party to the DMVH proceeding. The Department was designated as a “Petitioner” in the captions of both the DMVH’s Notice of Hearing and its Final Order and Decision. At the beginning of the DMVH hearing, the hearing officer stated, “Let the record reflect that the Petitioners in this matter are the Columbia Police Department and the South Carolina Department of Motor Vehicles.” In fact, prior to this appeal, there is no evidence that Tighe ever challenged the Department’s status as a party to the DMVH proceeding.

Furthermore, the DMVH’s decision to name the Department as a party to the DMVH proceeding was consistent with the longstanding practice of the state agency which is responsible for enforcing and/or administering the law alleged to be violated to be a party to the action. See, e.g., S.C. Dep’t of Natural Res. v. Chesney, 06-ALJ-13-0599-CC (Admin. Law Ct. December 19, 2006); S.C. Dep’t of Health and Envtl. Control v. Bellamy’s Cmty. Care Home, 02-ALJ-07-0123-CC (Admin. Law Ct. November 15, 2002); S.C. Dep’t of Revenue v. Jewett, 00-ALJ-17-0432-CC (Admin. Law Ct. March 30, 2001); S.C. Dep’t of Ins. v. Gainey, 98-ALJ-09-0278-CC (Admin. Law Ct. August 26, 1998). The fact that law enforcement agencies play a role in enforcing Section 56-5-2951 does not mean that the Department should be excluded from party status in implied consent hearings. For instance, the Department of Revenue is regularly named as a party to beer and wine permit revocation hearings even though SLED assists with the enforcement of beer and wine permit laws. See, e.g., S.C. Dep’t of Revenue v. Duncan, 07-ALJ-17-0553-CC (Admin. Law Ct. February 4, 2008). Like the Department of Revenue with respect to beer and wine permit laws, the Department is the agency charged with the responsibility of “administering” Section 56-5-2951 and thus was a “party” to the DMVH proceeding for the purposes of Section 1-23-380(A).

Tighe’s argument that Section 1-23-660 demonstrates that “the legislature specifically determined that the [Department] is not a party to the [DMVH] proceeding” is unconvincing. Tighe’s argument is based on the following provisions of Section 1-23-660, which were added to Section 1-23-660 in June of 2006:

For purposes of this section, any law enforcement agency that employs [an] 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. Representatives of the Department of Motor Vehicles are not required to appear at implied consent, habitual offender, financial responsibility, or point suspension hearings.

S.C. Code Ann. § 1-23-660 (Supp. 2007).[5]

In this Court’s view, the fact that the Department, unlike applicable law enforcement agencies, is not specifically mentioned as being a party to Section 56-5-2951 hearings does not demonstrate legislative intent to exclude the Department from party status. Although this Court is cognizant of the canon of statutory construction, “expressio unius est exclusio alterius” (the express mention of one thing excludes all others), the application of that canon here would mandate the exclusion of Tighe himself from party status. Interpretation of the statute in this manner would thus be contrary to the equally important rule of statutory construction that the Court should reject a meaning that would lead to an absurd result not intended by the legislature when construing a statute. Kiriakides v. United Artists Communications, Inc., 312 S.C. 271, 275, 440 S.E.2d 364, 366 (1994). Moreover, there exists another, more likely explanation as to why Section 1-23-660 was amended in June of 2006 to make law enforcement agencies parties to Section 56-1-286 and 56-5-2951 hearings. In the first half of 2006, the ALC was inundated with appeals filed by the Department in which the Department argued that the DMVH – and not the Department – was required to notify applicable law enforcement officers of pending Section 56-5-2951 hearings.[6] The legislature’s decision to make applicable law enforcement agencies parties to Section 56-5-2951 proceedings resolved this issue, since S.C. Code Ann. § 1-23-320 clearly requires the DMVH to notify all parties of upcoming hearings.

Similarly, the mere fact that Section 1-23-660 states that “[r]epresentatives of the Department of Motor Vehicles are not required to appear at implied consent, habitual offender, financial responsibility, and point suspension hearings” does not demonstrate legislative intent to exclude the Department from party status. Stating that an entity is not required to perform a certain action is simply not the same as stating that the entity is prohibited from performing the action. Additionally, because ALC Rule 29(B) has long required “the agency” to bear the burden of proof in enforcement actions, the legislature undoubtedly intended for some state agency to be named as a party to habitual offender, financial responsibility, and point suspension hearings. If not the Department, then it is unclear which state agency the legislature had in mind. Under Section 1-23-660, law enforcement agencies are required to be named as parties to only Section 56-1-286 and 56-5-2951 hearings, which are implied consent hearings.

2. Was the Department “Aggrieved” by the DMVH’s Decision?

An “aggrieved party” is “one who is injured in a legal sense or one who has suffered an injury to person or property.” Ex parte Whetstone, 289 S.C. 580, 581, 347 S.E.2d 881, 882 (1986). “A party is aggrieved by a judgment or decree when it operates on his or her rights of property or bears directly on his or her interest.” Beaufort Realty Co. v. Beaufort County, 346 S.C. 298, 301, 551 S.E.2d 588, 589 (Ct. App. 2001).

Here, the Department is expressly required, by statute, to suspend the driver’s license of a motorist who refuses to submit to a properly-requested chemical test. See S.C. Code Ann. § 56-5-2951(A) (2006) (“The Department of Motor Vehicles must suspend the driver’s license, permit, or nonresident operating privilege of or deny the issuance of a license or permit to a person who drives a motor vehicle and refuses to submit to a test provided for in Section 56-5-2950 . . .”) (emphasis added). In cases where the DMVH erroneously rescinds a motorist’s Section 56-5-2951(A) suspension, the Department’s statutory duty is adversely affected and the Department is injured “in a legal sense.” See Parker v. Brown, 195 S.C. 35, 48-49, 10 S.E.2d 625, 630-31 (1940) (explaining that there is an injury “in a legal sense” where a legal right or legal duty is violated).

Moreover, the Department has a special interest in maintaining the safety of South Carolina’s public roads,[7] and this interest is directly advanced by suspending the licenses of those who refuse to submit to properly-requested chemical tests.[8] Importantly, our Courts have implicitly recognized this special interest by allowing the Department to appeal adverse circuit court decisions in implied consent and other license suspension cases. See Taylor v. S.C. Dep’t of Motor Vehicles, 368 S.C. 33, 627 S.E.2d 751 (Ct. App. 2006), cert. granted, Shearouse Adv. Sh. No. 35 (2007); S.C. Dep’t of Motor Vehicles v. Nelson, 364 S.C. 514, 613 S.E.2d 544 (Ct. App. 2005); Dismuke v. S.C. Dep’t of Motor Vehicles, 371 S.C. 418, 639 S.E.2d 151 (Ct. App. 2006).

For these reasons, I conclude that the Department is “aggrieved” by erroneous decisions of the DMVH in implied consent cases. Tighe’s argument that the Department is simply performing a “ministerial function” with respect to Section 56-5-2951 suspensions and thus is not aggrieved by erroneous DMVH decisions is unpersuasive. While it is true that the Department initially has no discretion with respect to suspending a motorist’s license pursuant to Section 56-5-2951, when a hearing is requested, the propriety of the Section 56-5-2951 suspension must be established. And, as discussed above, the Department has a direct interest in the outcome of the hearing.

Furthermore, the main case that Tighe cites in support of his argument that the Department is not aggrieved, Director, Office of Workers’ Comp. Programs, Dep’t of Labor v. Newport News Shipbuilding and Dry Dock Co., 514 U.S. 122 (1995), is inapposite. In that case, the Director of the Labor Department’s Office of Workers’ Compensation Programs (Director) petitioned the Court of Appeals for review of a decision made by the Labor Department’s Benefits Review Board (Board) that denied an employee full-disability compensation under the Longshore and Harbor Workers’ Compensation Act (LHWCA). The employee did not seek review of the Board’s decision and expressly declined to intervene on his own behalf. The Supreme Court found that the Director did not constitute a “person adversely affected or aggrieved” under the LHWCA and therefore lacked standing to bring her appeal.

Newport News is distinguishable from the present case in several regards. First, in Newport News, the Director and the Board were both part of the Department of Labor. Id. at 125.[9] Thus, the Director was seeking judicial review of a decision made by another division of her own agency. In the present case, however, the Department and the DMVH are not part of the same agency. Rather, the Department is its own agency,[10] and the DMVH is a division of the ALC.[11] Thus, unlike the situation in Newport News, this Court is not being asked to settle an intra-agency dispute.

Second, in Newport News, the Supreme Court acknowledged that Congress could have conferred standing on the Director without infringing Article III of the Constitution,[12] but it ultimately concluded that Congress did not do so. Importantly, the Court’s decision was clearly influenced by the fact that agencies are expressly excluded from the definition of “person” in 5 U.S.C. § 551(2) of the federal Administrative Procedure Act, and therefore do not generally constitute a “person adversely affected or aggrieved” under that Act. See id. at 129; see also id. at 138-39 (Ginsburg, J., concurring) (explaining that the phrase “person adversely affected or aggrieved” ordinarily disqualifies agencies acting in a governmental capacity from petitioning for court review).[13] Here, in contrast, South Carolina’s APA grants the right to judicial review to parties that are aggrieved by an agency’s decision, and the Department was a named party to the DMVH proceeding.[14] See S.C. Code Ann. § 1-23-380(A) (Supp. 2007). Therefore, a reasonable construction of our laws is that the Department should likewise be permitted to appeal adverse DMVH decisions to this Court.

Finally, in Newport News, the Director failed to explain how an erroneous Board ruling interfered with any of her specific statutory duties. See id. at 131 (“The Director does not assert that the Board’s decision hampers her performance of [her] express statutory responsibilities.”); id. at 133 (“The Director fails, however, to identify any specific statutory duties that an erroneous Board ruling interferes with . . .”). The Supreme Court therefore concluded that the Director failed to establish “a clear and distinctive responsibility” that would “overcome the universal assumption that ‘person adversely affected or aggrieved’ leaves private interests (even those favored by public policy) to be litigated by private parties.” Id. at 132. Here, however, an erroneous DMVH decision clearly interferes with the Department’s express statutory duty to suspend the driver’s licenses of those motorists who refuse to submit to properly-requested chemical tests. See S.C. Code Ann. § 56-5-2951(A) (2006). Moreover, the present case is not one in which a government agency is seeking to advance a private party’s interests. Rather, the interest the Department seeks to advance is purely a public one.

For these reasons, I conclude that Newport News is distinguishable from the present case and that the Department has standing to bring this appeal.

Organization and Numbering of Pages of the Record

Tighe argues that the pages of the Record are not organized or numbered in the manner required by ALC Rule 36(C) and that the Department’s appeal should therefore be dismissed. I disagree.

The Record must allow for meaningful review of the issues on appeal. See State v. Ladson, 373 S.C. 320, 644 S.E.2d 271 (Ct. App. 2007). Here, Tighe has not argued – and it does not appear to the Court – that any part of the Record is missing. Moreover, because the materials in the Record are organized in an orderly fashion pursuant to an index, relevant items can easily be found. Therefore, I conclude that the Record allows for a meaningful review of the issues on appeal. Furthermore, even if the Record did not allow for meaningful review, the appropriate remedy would be to remand the case to the DMVH, not to dismiss it. See id. While it is true that ALC Rule 38 authorizes ALC judges to dismiss appeals for noncompliance with any of the ALC procedural rules, it was the DMVH – not the Department – that prepared the Record in this case. Therefore, dismissal on this ground is not warranted.

Issue Preservation

Tighe further argues that the Department failed to properly preserve any issues for appeal since it neither appeared at the DMVH hearing nor filed anything with the DMVH. I disagree.

It is well-settled that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial court to be preserved for appellate review. Staubes v. City of Folly Beach, 339 S.C. 406, 412, 529 S.E.2d 543, 546 (2000). “[T]he ultimate goal behind preservation of error rules is to insure that an issue raised on appeal has first been addressed to and ruled on by the trial court.” State v. Nelson, 331 S.C. 1, 6 n. 6, 501 S.E.2d 716, 718 n. 6 (1998). Without an initial ruling by the trial court, a reviewing court simply cannot evaluate whether the trial court committed error. Staubes, 339 S.C. at 412, 529 S.E.2d at 546.

Here, the substantive issue raised in this appeal – whether Tighe’s suspension should have been rescinded because of Officer Price’s failure to advise Tighe of his Section 56-5-2934 rights at the location where Tighe was initially taken into custody –was not ultimately ruled upon until the hearing officer issued his Final Order and Decision. Rather than make a motion for reconsideration, the Department chose to directly appeal the issue to the ALC. The Note to ALC Rule 29 specifically provides that “[t]he filing of a motion for reconsideration is not a prerequisite to filing a notice of appeal from the final decision of an administrative law judge.”[15] In addition, the facts necessary for resolving this issue are clearly within the Record. Therefore, this Court is fully able to evaluate whether the DMVH hearing officer committed error.

  Furthermore, as discussed below, the Department’s primary argument on appeal is that the Supreme Court’s decision in State v. Haase, 367 S.C. 264, 625 S.E.2d 634 (2006), which was issued almost ten months prior to Tighe’s hearing, is directly adverse to the argument that was made by Tighe’s attorney in his closing statement and ultimately adopted by the hearing officer.  Nevertheless, there is no evidence that the Haase decision was ever mentioned to the DMVH hearing officer.  Notably, Rule 3.3(a)(2) of the Rules of Professional Conduct provides that “[a] lawyer shall not knowingly fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.”  Rule 407 SCACR, Rule 3.3(a)(2).  Thus, if the Department’s argument about Haase is correct (which, as discussed below, this Court concludes that it is), and Tighe’s attorney knew of the Haase decision, then he had a duty to disclose it to the hearing officer.  While in all probability Tighe’s attorney was simply unaware of the Haase decision, to now hold that the Department is precluded from mentioning Haase on appeal would, like a violation of Rule 3.3(a)(2), offend “the integrity of the adjudicative process.”  See Rule 407 SCACR, Rule 3.3(a)(2) cmt. 2.

For these reasons, I conclude that the issue raised by the Department in this appeal is preserved for review.

Roadside DUI Advisement

S.C. Code Ann § 56-5-2934 (2006) provides in pertinent part:

[A]t the time of arrest for a violation of Section 56-5-2930, 56-5-2933, or 56-5-2945, the arresting officer, in addition to other notice requirements, must inform the defendant of his right to all hearings provided by law to include those if a breath test is refused or taken with a result that would require license suspension. The arresting officer, if the defendant wishes to avail himself of any such hearings, depending on the choices made or the breath test results obtained, must provide the defendant with the appropriate form to request the hearing or hearings. The defendant must acknowledge receipt of the notice requirements and receipt of the hearing form if such a hearing or hearings are desired.

The Department argues that the hearing officer erred by rescinding Tighe’s suspension on the grounds that Officer Price violated Section 56-5-2934. For the following two reasons, I agree.

First, as discussed above, Section 56-5-2951(F) limits the scope of the administrative hearing to a handful of issues, none of which includes the issue of whether law enforcement complied with Section 56-5-2934. Specifically, Section 56-5-2951(F) provides in pertinent part:

The scope of the hearing must be limited to whether the person: (1) was lawfully arrested or detained; (2) was advised in writing of the rights enumerated in Section 56-5-2950; and (3) refused to submit to a test pursuant to Section 56-5-2950.

S.C. Code Ann. § 56-5-2951(F) (2006) (emphasis added). The import of 56-5-2951(F) was discussed by the Court of Appeals in S.C. Dep’t of Motor Vehicles v. Nelson, 364 S.C. 514, 613 S.E.2d 544 (Ct. App. 2005). In that case, a motorist’s driver’s license was suspended under Section 56-5-2951 for refusing to submit to chemical testing after being arrested for driving under the influence. The Department’s hearing officer upheld the suspension. However, the circuit court reversed, concluding that the breath test was not offered within three hours of the arrest as required by S.C. Code Ann. § 56-3-2953 (Supp. 2002). The Court of Appeals subsequently reversed the circuit court’s decision and reinstated the suspension. In doing so, the Court of Appeals acknowledged that law enforcement failed to comply with the requirements of Section 56-5-2953. Id. at 524; 613 S.E.2d at 549. Nonetheless, the court held that law enforcement’s noncompliance with Section 56-5-2953 did not warrant the rescission of the motorist’s summary suspension. The court explained:

[N]othing in the code instructs that a failure to comply with section 56-5-2953 warrants the dismissal of prosecution for failure to submit to testing pursuant to section 56-5-2950. . . . Because Nelson did not consent to testing, the scope of the hearing was limited to whether Nelson (1) was lawfully arrested, (2) was advised in writing of his section 56-5-2950 rights, and (3) refused to submit to a test. . . . The circuit court’s reversal of the hearing officer was outside the purview of the proper scope of review.

Nelson, 364 S.C. at 524-26, 613 S.E.2d at 549-550.

Similarly, in this case, the DMVH hearing officer erred by rescinding Tighe’s suspension on the grounds that Officer Price failed to comply with Section 56-5-2934. The scope of the hearing simply did not include the issue of whether or not Section 56-5-2934 was violated.

Second, reversal of the hearing officer’s decision is also mandated by the Supreme Court’s decision in State v. Haase, 367 S.C. 264, 625 S.E.2d 634 (2006). In that case, the defendant was convicted of DUI in municipal court. On appeal, the circuit court reversed the defendant’s conviction, finding that police had failed to comply with Section 56-5-2934 at the time of her arrest. On further appeal, the Supreme Court reinstated the defendant’s conviction. Specifically, the court held that police had sufficiently complied with the requirements of Section 56-5-2934 by giving the defendant her Section 56-5-2950(a) warnings prior to her refusal to submit to the Data Master test. The court explained:

Pursuant to S.C. Code Ann. § 56-5-2950(a) (the Implied Consent statute), [the implied consent] warnings would have advised Haase that her license would be suspended if she refused the test, and that she had the right to request an administrative hearing. The purpose of the warnings under § 56-5-2934 are to advise the defendant of the consequences of refusing or failing the breathalyzer, i.e., license suspension, and to advise the defendant of the right to a hearing concerning a suspension and provide the necessary forms to request such a hearing. . . . In State v. Dowd, 306 S.C. 268, 269, 411 S.E.2d 428, 429 (1991), we held that “[a]n arrest does not necessarily terminate the instant a person is taken into custody; arrest also includes bringing the person personally within the custody and control of the law.” We find police, by giving Haase warnings prior to her refusal of the Data Master test, sufficiently complied with the requirements of § 56-5-2934.

Id. at 267-68, 625 S.E.2d at 635.

Similarly, in this case, the Record demonstrates – and the hearing officer found – that Officer Price gave Tighe his implied consent warnings prior to Tighe’s refusal of the DataMaster test. Therefore, pursuant to Haase, Officer Price sufficiently complied with Section 56-5-2934. Accordingly, for this reason as well, the DMVH hearing officer erred by rescinding Tighe’s suspension.

ORDER

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

IT IS SO ORDERED.

______________________________

Ralph K. Anderson, III

Administrative Law Judge

April 30, 2008

Columbia, South Carolina



[1] The caption in this matter has been amended to reflect the fact that the Columbia Police Department is not a party to this appeal.

[2] Pursuant to S.C. Code Ann. § 1-23-380(B) (Supp. 2007), administrative law judges must conduct appellate review in the same manner prescribed in Section 1-23-380(A).

[3] Blood and urine tests may be administered to motorists arrested for DUI only if certain other conditions are met. See S.C. Code Ann. § 56-5-2950(a) (2006).

[4] The issue raised by Appellant was whether the Department was a party to the proceeding and whether it was aggrieved by the decision. I therefore address that narrow issue. In other words, whether the Department waived its right as a party to appeal the Hearing Officer’s decision by not appearing at the hearing below is not before me.

[5] These provisions were added to Section 1-23-660 pursuant to 2006 S.C. Act No. 381, § 2 (effective June 13, 2006).

[6] See, e.g., S.C. Dep’t of Motor Vehicles v. Lucas, 06-ALJ-21-0116-AP (June 20, 2006); S.C. Dep’t of Motor Vehicles v. Haddock, 06-ALJ-21-0132-AP (June 20, 2006); S.C. Dep’t of Motor Vehicles v. Kirschmann, 06-ALJ-21-0185-AP (June 20, 2006); S.C. Dep’t of Motor Vehicles v. Jesse, 06-ALJ-21-0188-AP (June 20, 2006); S.C. Dep’t of Motor Vehicles v. Jones, 06-ALJ-21-0190-AP (June 20, 2006); S.C. Dep’t of Motor Vehicles v. Habisreutinger, 06-ALJ-21-0210-AP (June 20, 2006); S.C. Dep’t of Motor Vehicles v. Johnson, 06-ALJ-21-0219-AP (June 20, 2006); S.C. Dep’t of Motor Vehicles v. Kinard, 06-ALJ-21-0220-AP (June 20, 2006); S.C. Dep’t of Motor Vehicles v. Mount, 06-ALJ-21-0225-AP (June 20, 2006); S.C. Dep’t of Motor Vehicles v. Ghent, 06-ALJ-21-0232-AP (June 20, 2006); S.C. Dep’t of Motor Vehicles v. Sipes, 06-ALJ-21-0233-AP (June 20, 2006); S.C. Dep’t of Motor Vehicles v. Hayes, 06-ALJ-21-0238-AP (June 20, 2006); S.C. Dep’t of Motor Vehicles v. Hunt, 06-ALJ-21-0248-AP (June 20, 2006).

[7] A review of the motor vehicle code makes this “special interest” evident. See S.C. Code Ann. § 56-1-5 (2006) (establishing Department as an agency of the State and setting forth its functions and duties); see also S.C. Code Ann. § 56-1-1010 (2006) (declaring that it is the “policy of this State to provide maximum safety for all persons who use the public highways of this State”). The Department assists in maximizing the safety of South Carolina’s roads by performing functions such as licensing motor vehicle operators, suspending or revoking the licenses of those who have demonstrated an indifference to the safety of others, and maintaining an automated system for the storage and retrieval of all motor vehicle operator records. Certainly, the Department’s interest in maintaining the safety of our public roads exceeds that of an ordinary citizen of South Carolina.

[8] See State v. Kerr, 330 S.C. 132, 150, 498 S.E.2d 212, 221 (Ct. App. 1998) (purpose of administratively suspending a motorist’s license for refusing to submit to chemical testing is to protect the public); Mackey v. Montrym, 443 U.S. 1, 18 (1979) (explaining how, with respect to Massachusetts’ implied consent law, a State’s interest in public safety is “substantially served” by the summary suspension of those motorists who refuse to submit to breath testing).

[9] The Secretary of Labor delegated all responsibilities of the Department of Labor with respect to the administration of the LHWCA to the Director, and the Secretary of Labor appointed the members of the Board.

[10] S.C. Code Ann. § 56-1-5 (2006).

[11] S.C. Code Ann. § 1-23-660 (Supp. 2007).

[12] Id. at 133; id. at 136-37 (Ginsburg, J., concurring).

[13] Although the statute at issue in Newport News was the LHWCA, and not the federal Administrative Procedure Act, the Supreme Court nonetheless found the provisions of the federal Administrative Procedure Act to be useful in ascertaining legislative intent with respect to the LHWCA. See id. at 129.

[14] In fact, because, under Section 1-23-660, the Department is no longer authorized to determine contested case hearings, it does not constitute an “agency” for the purposes of South Carolina’s APA. See S.C. Code Ann. § 1-23-310 (2005) (defining “agency”).

[15] To be clear, this Court’s interpretation of ALC Rule 29 is that it is not necessary to file a motion for reconsideration in cases where the reviewing court is able to determine whether error occurred below. Certainly, if an issue was not ruled upon below, then the reviewing court cannot ascertain whether the lower tribunal committed error.


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