Saturday, November 22, 2014

SC Administrative Law Court Decisions

CAPTION:
Wayne Gerald Morris vs. SCDMV, et al

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Appellant:
Wayne Gerald Morris

Respondents:
South Carolina Department of Motor Vehicles and Newberry County Sheriff’s Department
 
DOCKET NUMBER:
07-ALJ-21-0409-AP

APPEARANCES:
n/a
 

ORDERS:

ORDER

This matter is an appeal by Wayne Gerald Morris from a Final Order and Decision of the South Carolina Division of Motor Vehicle Hearings (DMVH) following an administrative hearing held pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (2006). The Administrative Law Court (ALC) has jurisdiction to hear this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2007). Upon consideration of the briefs, the Court remands this matter to the DMVH pursuant to S.C. Code Ann. § 1-23-380(A)(5) (Supp. 2007).

BACKGROUND

On June 13, 2007, Officer Christopher Wagner of the Newberry County Sheriff’s Department arrested Morris for driving under the influence. He transported Morris to the Newberry County Detention Center for a DataMaster test, which was administered by Officer Charles Rogers. Morris was subsequently issued a Notice of Suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (2006) for refusing to submit to breath testing.

In accordance with Section 56-5-2951(B)(2), Morris filed a request for an administrative hearing to challenge the suspension. The DMVH held an administrative hearing on July 11, 2007. Officer Wagner appeared at the hearing, but Officer Rogers did not. Based on Officer Rogers’ absence at the hearing, Morris moved, at the onset of the hearing, to dismiss the case for failure to prosecute. Officer Wagner argued against Morris’ motion, claiming that he witnessed everything that transpired in the DataMaster room. The hearing officer denied Morris’ motion and allowed the hearing to proceed.

During the hearing, Officer Wagner testified that Officer Rogers handed a copy of the implied consent form to Morris and that Officer Rogers read the form to Morris. However, Officer Wagner also testified that, shortly before Morris was given the opportunity to provide a breath sample, Officer Rogers mistakenly told Morris that his license would be suspended for a period of thirty days if he refused testing.[1] During his closing argument, Morris argued that, based on Officer Rogers’ erroneous statement, his suspension should be rescinded. Without expressly ruling on Morris’ argument, the hearing officer upheld Morris’ suspension. Morris now appeals.

ISSUES ON APPEAL

1. Did the DMVH hearing officer err by failing to grant Morris’ motion to dismiss for failure to prosecute?

2. Did the DMVH hearing officer err by admitting Officer Wagner’s testimony that Officer Rogers read the implied consent advisement to Morris?

3. Did the DMVH hearing officer err by upholding Morris’ suspension despite the fact that Officer Rogers mistakenly told Morris that his license would be suspended for a period of thirty days if he refused testing?

STANDARD OF REVIEW

The DMVH is authorized by law to determine contested cases arising from the South Carolina Department of Motor Vehicles (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).

Motion to Dismiss for Failure to Prosecute

Morris argues that the hearing officer erred by failing to grant his motion to dismiss for failure to prosecute. Morris claims that, because Officer Rogers was not present at the hearing, Morris was prejudiced “by not having an opportunity to cross-examine a crucial witness.”

DMVH Rule 13 provides in pertinent part:

The hearing officer may dismiss a contested case or dispose of a contested case adverse to the defaulting party. A default occurs when a party fails to plead or otherwise prosecute or defend, fails to appear at a hearing without the proper consent of the hearing officer or fails to comply with any interlocutory order of the hearing officer. Any non-defaulting party may move for an order dismissing the case or terminating it adversely to the defaulting party.

Whether an action should be dismissed for failure to prosecute is left to the discretion of the trial court judge, and his decision will not be disturbed absent a clear showing of an abuse of discretion. Small v. Mungo, 254 S.C. 438, 442, 175 S.E.2d 802, 804 (1970); McComas v. Ross, 368 S.C. 59, 62, 626 S.E.2d 902, 904 (Ct. App. 2006).

Here, the record reflects that Officer Wagner was the arresting officer and the officer who requested a breath test. Therefore, his employer, Newberry County Sheriff’s

Department, was statutorily required to be named as a party to the DMVH proceeding, and it had the right to participate in the proceeding through one or more of its representatives. See S.C. Code Ann. § 1-23-660 (Supp. 2006). Furthermore, the record shows that Officer Wagner appeared at the hearing to prosecute the case and that he offered relevant testimony on each of the three issues set forth in Section 56-5-2951(F). For these reasons, the record clearly supports the hearing officer’s denial of Morris’ motion to dismiss for failure to prosecute.

Nevertheless, though Morris frames his argument as a challenge to the denial of his motion for failure to prosecute, the crux of his objection is to the hearing officer’s decision to admit Officer Wagner’s testimony regarding the provision of the implied consent advisement to Morris despite the fact that another officer, Officer Rogers, delivered the implied consent advisement to Morris.

According to Rule 601, SCRE, “[e]very person is competent to be a witness except as otherwise provided by statute or these rules.” Rule 602, SCRE, provides in pertinent part:

A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness’ own testimony.

Here, Officer Wagner testified at the hearing that he “was there the whole time”[4] while Officer Rogers administered the DataMaster test to Morris. One portion of the DataMaster test administration process is the provision of the implied consent advisement.[5] Therefore, Officer Wagner was competent to offer testimony about Officer Rogers’ delivery of the implied consent advisement to Morris. While Officer Rogers would have likely been a better witness with respect to this issue, this fact goes to the weight of Officer Wagner’s testimony and not to its admissibility. Furthermore, when it became clear that Officer Rogers was not going to appear at the hearing, Morris had the option of asking for a continuance and then subpoenaing Officer Rogers pursuant to DMVH Rule 12.

For these reasons, the Court concludes that the hearing officer did not abuse her discretion by denying Morris’ motion to dismiss for failure to prosecute.

Hearsay

Morris also argues that the hearing officer committed reversible error by failing to exclude, on hearsay grounds, Officer Wagner’s testimony that Officer Rogers read the implied consent advisement to Morris. I disagree.

As an initial matter, “it is well settled that a contemporaneous objection must be made to preserve an argument for appellate review.” Washington v. Whitaker, 317 S.C. 108, 114, 451 S.E.2d 894, 898 (1994); see also State v. Black, 319 S.C. 515, 521-22, 462 S.E.2d 311, 315 (Ct. App. 1995) (“Failure to object when the evidence is offered constitutes a waiver of right to object.”). In this case, Morris did not make a contemporaneous objection to the challenged testimony. (Transcript, page 10, lines 12-13; Transcript, page 30, lines 4-10). Therefore, this issue is not preserved for review.

Moreover, even if Morris had properly preserved this issue for appeal, the hearing officer did not commit reversible error by failing to exclude Officer Wagner’s testimony on hearsay grounds. Rule 801(c), SCRE, defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”[6] According to our Supreme Court, “[w]here, regardless of the truth or the falsity of a statement, the fact that it has been made is relevant, the hearsay rule does not apply, but the statement may be shown.” Waites v. S.C. Windstorm and Hail Underwriting Ass’n, 279 S.C. 362, 365, 307 S.E.2d 223, 225 (1983) (quoting 31A C.J.S. Evidence § 239). Thus, in cases where an out-of-court statement is not offered to prove the truth of the matter asserted, but merely to prove notice, the hearsay rule does not apply. Player v. Thompson, 259 S.C. 600, 610, 193 S.E.2d 531, 535 (1972). Similarly, an out-of-court assertion that has direct legal significance regardless of its truth is not hearsay. See David F. Binder, Hearsay Handbook §2.6 (4th ed. 2001).

Here, the evidence alleged to be hearsay is Officer Rogers’ recitation to Morris of the rights enumerated in Section 56-5-2950(a). While the challenged statements were indeed made out of court, they were arguably not assertions for the purposes of the hearsay rule. See Binder, supra §2.2 (warnings and instructions are generally not assertions for the purposes of the hearsay rule). More importantly, even if these statements were assertions, they were not offered to prove “the truth of the matter asserted.” Rather, they were offered to show that Morris was notified of his implied consent rights. In addition, these statements had direct legal significance since, according to Section 56-5-2951(F), one of the relevant issues at the hearing was whether Respondent was advised of his implied consent rights. Therefore, Officer Wagner, who personally observed Officer Rogers make these statements to Morris, did not violate the hearsay rule by testifying at the hearing about these statements.

Furthermore, even if Officer Rogers’ statements to Morris were hearsay, the admission of hearsay evidence does not constitute reversible error if the hearsay evidence is cumulative to other evidence. See Ward v. Epting, 290 S.C. 547, 557, 351 S.E.2d 867, 873 (Ct. App. 1986) (“Inadmissible evidence, if cumulative to previously admitted evidence, does not constitute an error requiring reversal.”). In this case, Morris’ attorney stipulated at the hearing that the implied consent form was read to Morris. (Transcript, page 25, lines 16-17). Moreover, Officer Wagner testified, without objection, that Officer Rogers handed a copy of the implied consent form to Morris. Advising a motorist in writing of his implied consent rights is sufficient to meet the requirements of Section 56-5-2950(a).

For these reasons, the Court concludes that the hearing officer did not commit reversible error by failing to exclude Officer Wagner’s testimony that Officer Rogers read the implied consent advisement to Morris.

Officer Rogers’ Statement Regarding Suspension Period for Refusing Testing

Alternatively, Morris argues that, if Officer Rogers’ statements to Morris were not hearsay, then the record demonstrates that Officer Rogers did not properly advise Morris of his implied consent rights. Specifically, Morris points to Officer Rogers’ statement, made shortly before Morris refused to provide a breath sample, that Morris’ license would be suspended for a period of thirty days if he refused testing.

As mentioned above, Section 56-5-2950(a) provides that, before any type of chemical test is administered to a motorist, the motorist must be informed in writing that, among other things, “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.” (emphasis added).

In this case, at the hearing, the following two relevant exchanges occurred between Officer Wagner and Morris’ attorney:

Mr. Moore: How about later on right before this alleged refusal, do you remember how many days Mr. Rogers said Mr. Morris’ license would be suspended if he refused to take the test?

Officer Wagner: If I recall correctly, I want to say it was thirty days if I’m . . .

Mr. Moore: And that’s not correct, is it?

Officer Wagner: . . . if I’m not mistaken. No, it’s ninety days.

* * *

Mr. Moore: Well, Officer, the DataMaster operator [Officer Rogers] said that his license would be suspended for thirty days if he did not take the test, right?

Officer Wagner: That would be an opinion on my part, but to the best of my knowledge . . .

Mr. Moore: But you were there, weren’t you?

Officer Wagner: But the best of my . . .

Mr. Moore: And you said at the beginning that you could testify as to what . . .

Officer Wagner: You have not let me finish.

Mr. Moore: Okay. Please do.

Officer Wagner: But to the best of my knowledge, he did say thirty days.

Mr. Moore: Okay. To the best of your knowledge, but you don’t know that for sure either, do you?

Officer Wagner: Yes, I pretty much do.

Mr. Moore: Well, is that what he said?

Officer Wagner: He did say thirty days.

Mr. Moore: And that’s wrong, isn’t it?

Officer Wagner: Yeah.

Officer Wagner’s testimony demonstrates that Officer Rogers incorrectly told Morris that his license would be suspended for a period of thirty days if he refused testing. Thus, while the record shows that Morris was initially properly advised of his implied consent rights, it also shows that, right before Morris was given an opportunity to provide a breath sample, he was specifically informed that the consequences of refusing testing would be substantially less than prescribed by statute. The only reasonable conclusion, in light of the juxtaposition of the incorrect information immediately before his decision to refuse the test, is that Morris was prejudiced by that errant warning.[7]

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

July 2, 2008

Columbia, South Carolina



[1] According to S.C. Code Ann. § 56-5-2951(I) (2006), the suspension period for refusing to submit to a chemical test provided for in S.C. Code Ann. § 56-5-2950 (2006) is at least ninety days.

[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] Transcript, page 24, lines 2, 9-19.

[5] See SLED Implied Consent Policy 8.12.5(C)(1), available at http://www.sled.sc.gov/documents/impliedconsent/polproc/8125/200611018125.pdf.

[6] A “statement” is defined as “(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.” Rule 801(a), SCRE.

[7] This case raises an interesting dilemma. In State v. Miller, 375 S.C. 370, 652 S.E.2d 444 (2007), the court held that in determining the voluntariness of a statement, the court must consider whether there was coercion from the perspective of the suspect. If that subjective standard is the criterion in implied consent cases, it would logically follow that the more intoxicated an individual is (i.e., the greater the probability of criminal guilt) the more apt the person is to be confused by an erroneous statement. On the other hand, the less intoxicated an individual is (i.e., the slighter the probability of criminal guilt) the less apt the person is to be confused by an erroneous statement. I make no finding regarding that issue in this case.


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