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).
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.
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. 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erroneous statement, his suspension should be rescinded.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.
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.
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
(b) in excess of the statutory authority of the
(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
S.C. Code Ann.
§ 1-23-380(A)(5) (Supp. 2007).
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. §
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. §
56-5-2951, 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).
to Dismiss for Failure to Prosecute
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
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.
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” while Officer Rogers administered the DataMaster test to Morris. One portion
of the DataMaster test administration process is the provision of the implied
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.
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.”
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.
Rogers’ Statement Regarding Suspension Period for Refusing Testing
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
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
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
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.
IT IS THEREFORE
ORDERED that the DMVH’s Final Order and Decision is REVERSED.
IT IS SO ORDERED.
Ralph K. Anderson, III
July 2, 2008
Columbia, South Carolina