This matter is an appeal by Jordan Leslie Hill (“Hill” or “Appellant”)
from a Final Order and Decision of the South Carolina Motor Vehicles Division
(“DMVH”). The DMVH’s Final Order and Decision of November 19, 2007 was
issued following an administrative hearing held pursuant to S. C. Code Ann. §
56-5-2951 (B) (2). Hill claims that the DMVH erroneously upheld her driver’s
license suspension. The Administrative Law Court has jurisdiction to hear this
matter pursuant to S. C. Code Ann. § 1-23-600 (Supp. 2006). References
in this Order to page numbers in the Record are to pages numbered
consecutively, starting with the cover sheet as page one.
consideration of the record and the parties’ briefs, the DMVH’s Final Order and
Decision is affirmed.
On July 27, 2007 Trooper J. C. Greer was on routine patrol east of Seneca, South Carolina when he observed Appellant’s erratic driving (R, p. 8, l. 5 – p. 9,
l. 12). Trooper Greer initiated a traffic stop and identified the Appellant
Hill as the driver (R, p. 9, l. 17). Upon investigating after the stop, the
Trooper observed Appellant had an odor of alcohol about her person. He
asked the Appellant to step out of the vehicle (R, pp. 9, l. 25- p. 10, l. 6).
He read Appellant her Miranda rights and asked her to take three
sobriety tests (R, p. 10, ll. 9-11). She showed evidence of nystagmus on the
HGN test. She was unable to put her toes to her heels and was unable to
maintain her balance in the walk-and-turn test. She was unable to maintain her
balance in the one-leg-stand test, placing the foot she sought to lift on the
ground several times (R, p. 11, ll. 7-13). The Appellant was then
arrested and transported to Clemson Police Department for a breath test (R, p.
11, l. 14).
Trooper Greer offered the Appellant an opportunity to
consent to a DataMaster test. Trooper Greer advised her of her implied consent rights, and gave her a copy to
review as he read them (R, p. 11, l. 21; p. 17, l. 9; Breath Test Videotape).
The Appellant took the breath test, and registered .18% blood alcohol level (R.
P. 49). Officer Greer issued a Notice of Suspension (R. p. 47).
After the DMV
received the Notice of Suspension, the DMV suspended the Hill’s driver’s
license. Hill then requested an administrative hearing. On October 22, 2007
Hearing Officer Tracy Holland convened a contested case hearing. Trooper Greer
appeared and testified. The Appellant appeared with counsel M. Todd Simmons but
did not testify. Hearing Officer Holland subsequently issued a Final Order
& Decision on November 19, 2007 sustaining the Appellant’s suspension (R,
Hill now appeals.
1. Did the Hearing Officer err in finding that that Trooper Greer
administer the breath test pursuant to Section 56-5-2950?
2. Did the Hearing Officer err in finding that that Appellant
failed to object to
3. Did the Hearing Officer err in finding that that Appellant was
4. Did the
Hearing Officer err in finding that the Implied Consent Advisement
was properly given?
5. Did the Hearing Officer err in finding that no alleged error in
warnings justified rescission of the suspension?
scope of judicial review in cases such as this is limited by the Administrative
Procedures Act, S.C. Code Section 1-23-380(A)(6).
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
(6) The court shall not substitute its judgment for that 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 if substantial rights of the
appellant have been prejudiced because the administrative findings, inferences,
conclusions or decisions are:
(a) In violation of constitutional or
(b) In excess of the statutory authority of
© 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
In Lark v. Bi-Lo, Inc., 276 S.C. 130, 276
S.E.2d 304 (1981), our Supreme Court set out the standard of evidentiary review
under the South Carolina Administrative Procedure Act:
[Section 1-23-380(g)(5)] specifically states: "The
Court shall not substitute its udgment for that of the agency as to the weight
of evidence on questions of fact." In addition, the statute states the
decision under appeal must be "clearly erroneous" in view of the
substantial evidence on the whole record.
We, therefore, caution the Bench and Bar as to the
limitations upon the application of the "substantial evidence" rules
in reviewing the decision of administrative agencies. As stated in Dickinson-Tidewater,
Inc. v. Supervisor of Assess., 273 Md. 245, 329 A.2d 18, 25, the
substantial evidence test "need not and must not be either judicial
fact-finding or substitution of judicial judgment for agency judgment";
and a judgment upon which reasonable men might differ will not be set aside.
Court further noted that:
The substantial evidence rule… means that we will not
overturn a finding f fact by an administrative agency "unless there is no
reasonable probability that the facts could be as related by a witness upon
whose testimony the finding was based." (Citation omitted.)
See also Schudel v. South Carolina Alcoholic Beverage Control Commission, 276
S.C. 138, 276 S.E.2d 308 (1981); Fast Stops, Inc. v. Ingram, 276 S.C.
593, 281 S.E.2d 18 (1981).
An appeal from action of an
administrative agency must be sustained if supported by substantial evidence. Hamm
v. American Telephone & Telegraph Co., 302 S.C. 210, 394 S.E.2d 842
(1990); Lark v. Bi Lo, Inc., supra. In Lark, our Supreme
Court quoted Consolo v. Federal Maritime Commission, 383 U.S. 607, 16 L.Ed.2d 131, 86 S. Ct. 1018 (1966), to define substantial evidence:
We have defined "substantial
evidence" as "such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion."… "It must be enough to
justify, if the trial were to a jury, a refusal to direct a verdict when the
conclusion sought to be drawn from it is one of fact for the jury…" This
is something less than the weight of the evidence, and the possibility of
drawing two inconsistent conclusions from the evidence does not prevent an
administrative agency's finding from being supported by substantial evidence.
Lark, 276 S.C. at 136,
276 S.E.2d at 307. See, also, Dorman v. DHEC, 565 S.E.2d
119, 350 S.C. 159 (Ct. App. 2002); Hamm v. South Carolina Public Service
Commission and Wild Dunes Utilities, Inc., 309 S.C. 295, 422 S.E.2d 118
A court cannot weigh the evidence
and substitute its judgment for that of the agency upon a question as to which
there is room for a difference of intelligent opinion. Dorman v. DHEC, supra; Hamm v. American Telephone & Telegraph Co., supra; Chemical
Leaman Tank Lines v. South Carolina Public Service Commission, 258 S.C.
518, 189 S.E.2d 296 (1972). The limited substantial evidence standard of review
is intended only to assure that the agency's action is properly supported and
that, therefore, no abuse of delegated authority occurred. See Fowler
v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973).
On review of the acts or
orders of administrative agencies, the courts will presume, among other things,
that the agency action is regular and correct, and that the orders and
decisions of the agency are valid and reasonable. Kearse v. State Health and
Human Serv. Fin. Comm’n., 318 S. C. 198, 456 S. E. 2d 892 (1995); S. C.
Dept. of Motor Vehicles v. Nelson, 364 S. C. 514, 613 S. E. 2d 544 (Ct.
App. 2005); 73A C.J.S. Public Administrative Law and Procedure Section 220(a) (1983). Therefore, the burden is on the Petitioner to show
convincingly that the order of the agency is without evidentiary support or is
arbitrary or capricious as a matter of law. Hamm v. South Carolina
Public Service Commission, 294 S.C. 320, 364 S.E.2d 455 (1988).
1. The Hearing Officer did not err in finding that that Trooper Greer
qualified to administer the breath test pursuant to Section 56-5-2950.
Hill contends first that the State failed to carry its
burden of proof in the absence of proof that the DataMaster Officer was
qualified pursuant to S. C. Code Ann. § 56-5-2950.
For a number of reasons, it appears that the Record
contains sufficient evidence of Trooper Greer’s qualification to constitute
substantial evidence. First, Trooper Greer submitted the Breath Alcohol
Analysis Test Report (R. p. 49), on a form designed to be used as evidence in
DUI and Implied Consent cases, which was submitted by the Trooper while he
was under oath. It bears Trooper Greer’s signature, in two places, as the
arresting officer and the DataMaster Officer. It likewise contains his
certification number which he typed in along with the other data. Essentially,
the report is tantamount to a testimonial statement saying: “I am a South
Carolina Highway Patrolman, I am certified to administer the test and my
certification number is DM010215.” Appellant’s assertion that somehow an
officer must present physical evidence in the form of a certified copy of his
certification card (Appellant’s Brief, p. 5) lacks merit.
In addition, Trooper Greer’s testimony as well as his
administration of the test itself on the videotape (which is part of the
record) shows his thorough familiarity with the processes of the test, which he
explained in detail to Appellant. The Court notes the wet bath simulator and
administration of breath test are designed to be administered by trained
persons and the successful completion of such a test is some circumstantial
evidence of the qualification of the operator. For example, SLED protocols
provide that unless solutions changes are made timely the DataMaster machine
will not proceed. SLED Policy # 8.12.2 C. 1. In completing the evidence
ticket, the DataMaster machine will not allow incorrectly formatted inputs, and
in addition requires the operator to type as many as 37 different entries
within three minutes. SLED Policy # 8.12.5 K.3. and 5. a. through kk.
Moreover, Trooper Greer was present to be cross examined
with regard to any alleged doubt as to his qualifications on the Breath Alcohol
Analysis Test Report.
In addition, Appellant’s objection to the admission of
the breath ticket is also not contemporaneous and therefore ineffective. After
the cross examination of Trooper Greer, Appellant raised as a “housekeeping
issue” (R, p. 20, l. 9) that she had not previously objected to the
ticket being admitted, but did then object to the results being
admitted (R., p. 20, l. 15 through p. 21, l. 5). Nevertheless, the DataMaster
ticket was admitted into evidence earlier, without objection:
Mr. Greer: Ms.
Hill did agree to take the test. She took the test, and submitted a sample that
. . . That had a reading of .18 per cent. I also have a copy of the slip from
the DataMaster Machine to be entered.
Thank you. For the record, he’s offering . . . Let me get the official names.
The first document was the advisement of implied consent rights. The second
document is the South Carolina Law Enforcement breath alcohol and (inaudible)
form. And this is a copy . . . A carbon of the original document. No
objection made. Thank you.
(R, p. 12, l.
24 through p. 13, l. 13)
Objections to an offer of evidence must be
contemporaneous at the time it is offered. Cook v. S. C. Dep’t. of Highways
and Public Transp., 309 S. C. 179, 420 S. E. 2d 847 (1992); Gurganious
v. City of Beaufort, 317 S. C. 481, 454 S. E. 2d 912 (Ct. App. 1995).
Having failed to object to the DataMaster ticket at the
time it was offered into evidence, the Hearing Officer was entitled to draw any
reasonable inference from that evidence, which she did in finding that the
Trooper was certified (R, p. 42). She was likewise entitled to reasonably
infer that he was properly trained by observing his familiarity with the
testing process in his testimony and in the videotape. A court has great
latitude in ruling on the admissibility of evidence, and such rulings will not
be disturbed absent a showing of probable prejudice. State v. Kelley,
319 S. C. 173, 460 S. E. 2d 368 (1995).
Finally, with regard to possible prejudice, Appellant
neither shown nor attempted to show any. As the Hearing Officer correctly
Upon motion by
either party, the DMVH Hearing Officer may review the Department’s application
of the policies, procedures and regulations promulgated by SLED. If the
Hearing Officer finds that the failure to follow any of the policies,
procedures, regulations or other provisions of S. C. Code Ann. § 56-5-295
materially affected the accuracy or reliability of the test results or the
fairness of the testing procedure, the test results shall be excluded from
evidence. See S. C. Code Ann. §56-5-2950 (e).
(R, p. 41).
Even assuming for the moment that Appellant’s argument
could be regarded as making a motion to this effect, the record is devoid of any evidence that the alleged failure to document the qualification of the officer
materially affected the accuracy or reliability of the tests, or the fairness
of the testing procedure. Appellant offered no such evidence. Appellant did
not testify. She did not put up any evidence whatsoever. Nor did Appellant ever
argue any view of the record by which prejudiced might be inferred. Appellant
merely seeks to have the suspension overturned by asserting a technical
non-compliance with SLED policies, however immaterial. The Court is of the
opinion that there was substantial evidence of the Trooper’s qualifications.
Nevertheless, in the absence of evidence that the alleged error could have
prejudiced the Appellant, she cannot prevail. Taylor v. South
Carolina Department of Motor Vehicles, 368 S.C. 33, 627 S.E.2d 751 (Ct.
App. 2006). In fact, the only evidence of record indicates that the
Trooper properly prepared the DataMaster machine, which went though its necessary
self-tests, and accurately recorded Appellant’s breath sample (R, p. 12, l. 7
through p. 13, l. 3; p. 49 and Breath Test Videotape).
2. The Hearing Officer did not err in finding that that Appellant
failed to object to the DataMaster ticket.
As was more fully discussed regarding question 1.,
above, Appellant’s objection was not contemporaneous and was therefore
ineffective. It was well within the discretion of the Hearing Officer to admit
the DataMaster ticket and consider any reasonable inference from the DataMaster
evidence ticket. In addition, even if the objection were somehow considered
proper, it only addressed “the results” (R, p. 20, l. 16), presumably the
reading of .18. No objection to the ticket’s documentation of Trooper Greer’s certification
number or the machine’s preparation was made at that time or any time.
Counsel’s closing argument could be read as attempting to broaden the scope of
the objection, but by then any objection was clearly untimely (R, p. 24, l. 14
through p. 25, l. 13).
3. The Hearing Officer did not err in finding that that Appellant
This argument of Appellant appears to suggest
that the Trooper had to introduce evidence in addition to erratic driving, odor
of alcohol, and failed sobriety tests to establish probable cause. Erratic
driving, the odor of alcohol on the driver and the inability to perform
sobriety tests are sufficient to establish probable cause. Kelly v. S.C.
Dep’t. of Highways, 323 S. C. 334, 474 S. E. 2d 443 (1996). The observation
of erratic driving is sufficient for routine stop. The odor of alcohol and
poor performance on sobriety test established probable cause to arrest for
DUI. The only factor in Kelly differing from the present case is that
Kelly admitted to drinking a few beers. In the present case, it is not clear
whether Appellant admitted to drinking prior to her arrest, but it appears so.
In response to Trooper Greer’s question on the videotape of whether she, as a
minor, had used a fake ID in order to drink, she replied that she had been
allowed in two clubs in Clemson, and had friends that illegally purchased
drinks for her. See also, State v. Goodstein, 278 S. C. 125, 292 S. E.
2d 791 (1982) (driver who had the odor of alcohol, who was obnoxious and
unsteady on his feet, and who failed sobriety test was held to provide probable
If the Appellant’s objection is that the Trooper’s
conclusions regarding the sobriety tests are incorrect or unsupported, the
Court likewise disagrees. With regard to the HGN test, he specifically stated that the test looked for involuntary shaking and lack of smooth pursuit
in the eyes, and that he observed those clues (R. p. 10, ll. 12-16). Regarding
the heel-to-toe test, he specifically stated that Appellant was unable
to maintain her balance and that she was never able to go heel to toe, nor,
indeed, get her feet closer together than about a foot (Id. L. 24-p. 11,
l. 6). Regarding the one-leg- stand test, he specifically said she was
unable to hold her foot up, and placed it on the ground several times (R, p.
11, ll. 8-13). The whole point of administering these tests is to have a
uniform and objective assessment of impairment that does not depend strictly on
the judgment of the officer. The uncontradicted evidence of record is that she
failed these field sobriety tests, and no further evidence was necessary or
reasonably possible short of having her take a chemical test.
In addition, even if all the Trooper had said was that
Appellant took field sobriety tests and failed them, this was sufficient for
purposes of lawful arrest. Even a statement containing elements of the
officer’s own judgment or conclusion is not objectionable unless it is shown
that the judgment is somehow incorrect (Trooper Greer’s statements and his
justifications for them, however, were much more detailed). In the absence of
evidence to the contrary, it is presumed that public officers perform their
duties faithfully and regularly. S. C. Nat’l. Bank v. Florence Sporting
Goods, Inc., 241 S. C. 110, 115-16, 1267 S. E. 2d 199, 202 (1962); Felder
v. Johnson, 127 S. C. 215, 217, 121 S. E. 54, 54 (1924).
4. The Hearing Officer did not err in finding that the Implied
Consent Advisement was properly given.
Appellant admits that Trooper Greer handed Appellant a
copy of the DUI Implied Consent Advisement, for her to follow along as her read
it to her. She admits that she had this advisement in her physical possession
between the time she was given it (a little after 15 seconds into the video)
until she handed it back to the Trooper (approximately three minutes into the
video), for her to read if she chose. In addition, it did not appear that she
had pockets in her clothing unless there were pockets in the denim pants that
were covered by her top.
Moreover, Appellant has not suggested, as she did about
the Miranda warning, that the Advisement was incorrectly read or that
the wrong form was read. Instead, the video reveals that Trooper Greer read
the advisement to her in its entirety.
Next, nothing in S. C. Code Ann. 56‑5‑2951(F)
or the SLED Guidelines suggest, as does Appellant, that a driver must have
physical possession of a copy of the advisement for every second prior to the
breath test. To the contrary, Section 56‑5‑2951 (F) merely requires
that the driver be “advised in writing of the rights enumerated in Section
56-5-2950.” Appellant was. SLED Policy 8.12.5 E. 3., relied on by Appellant,
interestingly states as follows:
may sign the advisement form after the test as long as he/she is provided a
copy before being requested to blow into the instrument. A subject is
provided a copy if a copy is either given to him/her or made available by
placing in his/her proximity where he/she can read it.
Thus, even by the standard asserted by Appellant,
Trooper Greer did exactly what the policy required of him. He placed it in her
proximity (in her hands) where she could read it. That she spent the time
crying or arguing rather than reading the Advisement or listening to him read
it does not diminish his compliance.
Finally, the record is devoid of any evidence
that the officer’s alleged failure to ensure the Appellant’s constant physical
possession of the Advisement materially affected the accuracy or reliability of
the tests, or the fairness of the testing procedure. Appellant offered no such
evidence. Appellant did not testify. She did not put up any evidence
whatever. Nor did Appellant argue any view of the record by which prejudiced
might be inferred, such as a statement that she was a slow reader who did not
understand things read to her, and that if she had fully understood the
implication of giving a breath sample she would have refused. In the absence
of evidence that the alleged error could have prejudiced the Appellant, or
caused her to make any decision differently than she did, she cannot prevail. Taylor v. South Carolina Department of Motor Vehicles, 368 S.C. 33, 627
S.E.2d 751 (Ct. App. 2006).
5. The Hearing Officer did not err in finding that no error in
giving Miranda warnings justified rescission of the suspension.
The Court likewise finds this allegation to be without merit.
First, Trooper Greer testified without objection that
initially Mirandized Appellant at the arrest site (R, p. 10, l. 9). No
suggestion was made that this version of Miranda was improper. Even if
it were suggested, Appellant has not preserved a recording of the in car video
in the record, such that any claim of an error is waived. In the absence of
evidence to the contrary, it is presumed that public officers perform their
duties faithfully and regularly. S. C. Nat’l. Bank v. Florence Sporting
Goods, Inc., 241 S. C. 110, 115-16, 1267 S. E. 2d 199, 202 (1962); Felder
v. Johnson, 127 S. C. 215, 217, 121 S. E. 54, 54 (1924). While
this would be dispositive, it nevertheless appears to be immaterial.
While it is clear that Miranda warnings are
required by statute, the Miranda warnings are not and cannot be
superimposed on Implied Consent proceedings.
First, the whole purpose for Miranda was to
protect a constitutional right to prevent less than voluntary
self-incrimination in criminal cases, typically serious felony cases.
The requirement of Miranda warnings [e.g. Section 56-5-2953 (A)],
while perhaps stemming from similar motivation to avoid involuntary
self-incrimination, is 1.) statutory and 2.) typically involves misdemeanors
and not felonies (at least in the cases of DUI first). To the extent that
Appellant’s allegations could even be found to support a statutory violation,
in the absence of a showing of prejudice and in the absence of a statutory
directive that a violation of the statute leads to exclusion of evidence,
evidence should not be excluded. State v. Sheldon, 344 S. C. 340. 543
S. E. 2d 585 (Ct. App. 2001). Thus, unless Appellant can articulate an
independent Constitutional ground for evidence exclusion (much less outright
dismissal) she cannot prevail.
It must be remembered, however, that even if the Miranda case applied directly to the present case, it would still be unavailing to
Appellant in an Implied Consent proceeding. Miranda only applied to criminal cases in which the prosecution seeks to admit confessions or less
than voluntary incriminating statements. This case is not criminal and
does not rest on incriminating statements extracted from the Appellant. The
Court is aware of no case has ever held that a criminal conviction should be
dismissed outright solely because of an alleged Miranda violation.
Instead, the Miranda rule was designed to prevent law enforcement
misconduct by excluding the self-incriminating statements gathered in
violation of it, but not the other competent evidence in the case. That,
however, is essentially what Appellant is requesting here, the dismissal of her
case, even though it is not even a criminal case. Her case does not rest on
anything remotely similar to a confession, and the implied consent suspension
has been repeatedly held to be separate from the criminal offence and not part
of criminal punishment. State v. Price, 333 S.C. 267, 510 S.E. 2d 215
(1998); Parker v. State Highway Dep’t., 224 S. C. 263, 78 S. E. 2d 382
(1953). To the extent anything Appellant might have said might be construed
as inculpatory, such as her statement that she gained entrance to Clemson
clubs and had friends illegally purchase mixed drinks for her, it does not
change the outcome of her implied consent suspension. Admission to drinking is
not a confession of DUI for purposes of determining if Miranda rights
were violated. State v. Morgan, 282 S. C. 409, 410-11, 319 S. E. 2d
335, 336 (1994) (admission of drinking and use of drugs not a confession to
DUI); see also, State v., Osborne, 335 S. C. 172, 516 S. E. 2d
201 (1999) (driver’s statement that he had not drunk alcohol after the wreck
and his admission that he lied about the theft of his car were deemed not
confessions for Miranda purposes).
Appellant was lawfully arrested, she was advised in
writing of her Implied Consent rights, she chose to give a sample and blew .18
percent. These results do not change whether the statement is considered or
stricken. Her sobriety tests and her DataMaster tests, merely measuring
physical characteristics, were not testimonial in nature, so she had no 5th Amendment right to prevent their results from being considered. State v.
Hart, 306 S. C. 344, 412 S. E. 2d 380 (1991).
Finally, it is worthwhile to take a look at what Miranda
v. Arizona, 384 U. S. 436, 86 S. Ct. 1602 (1966) actually holds:
At the outset, if a person in custody is to be
subjected to interrogation, he must first be informed in clear and
unequivocal terms that he has the right to remain silent. For those
unaware of the privilege, the warning is needed simply to make them aware of it
- the threshold requirement for an intelligent decision as to its exercise.
More important, such a warning is an absolute prerequisite in overcoming the
inherent pressures of the interrogation atmosphere. It is not just the
subnormal or woefully ignorant who succumb to an interrogator's imprecations,
whether implied or expressly stated, that the interrogation will continue until
a confession is obtained or that silence in the face of accusation is itself
damning and will bode ill when presented to a jury. (fn37) Further, the warning
will show the individual that his interrogators are prepared to recognize his
privilege should he choose to exercise it . . . . (Id. at 467, 468, 86 S. Ct. 1624, 1625)
The warning of the right to remain silent must
be accompanied by the explanation that anything said can and will be
used against the individual in court. . . . (Id. At 469, 86 S. Ct. 1625)
No effective waiver of the right to counsel during
interrogation can be recognized unless specifically made after the warnings we
here delineate have been given. . . . Accordingly we hold that an individual
held for interrogation must be clearly informed that he has the right to
consult with a lawyer and to have the lawyer with him during
interrogation under the system for protecting the privilege we delineate
today. As with the warnings of the right to remain silent and that anything
stated can be used in evidence against him, this warning is an absolute
prerequisite to interrogation. . . . (Id. At 470, 471, 86 S. Ct. at 1626)
Once warnings have been given, the subsequent
procedure is clear. If the individual indicates in any manner, at any time prior
to or during questioning, that he wishes to remain silent, the interrogation must cease. . . . (Id. At 473, 474, 86 S. Ct. at 1627)
If the interrogation continues without the presence
of an attorney and a statement is taken, a heavy burden rests on
the government to demonstrate that the defendant knowingly and intelligently
waived his privilege against self-incrimination and his right to retained or
appointed counsel. (Id. At 474, 86 S. Ct. at 1628)
(Bold and italic emphasis added throughout Miranda citations)
recitation, quoted on Appellant’s Brief, p. 6, covers all salient points.
Without the benefit of any apparent reference in the Miranda case
itself, Appellant asserts that an alleged minor difference between the warning
as set forth on a pocket card printed by the Department of Public Safety and
the warning actually given by Trooper entitles Appellant to have her suspension
dismissed. The Court disagrees because: 1.) the case is not a criminal case,
and 2.) she received an earlier Miranda warning that was presumptively
correct, and 3.) she was not under custodial interrogation in any real sense,
but was awaiting a chemical test of her breath, which was simply a measurement
of a physical characteristic, and finally 4.) no prosecutor seeks to admit
evidence in the nature of self-incriminating evidence. To the extent
Appellant’s statement about how she managed to drink while underage is deemed
incriminating, it is immaterial to her administrative suspension action, not
apparently relied on by the Hearing Officer, its absence would not change the
result, and there is no indication that Trooper Greer sought to introduce the
video, or any part of it, or make reference to such statements.
it appears to the Court that this argument was neither raised nor ruled on by
the Hearing Officer, and therefore regardless of any merit it might otherwise
have had, is not preserved before this Court. Moore v. Florence School Dist. No. 1, 314 S.C. 335, 444 S.E.2d 498 (1994).
For all of
the above referenced reasons, the Court finds that the Final Order and Decision
of Hearing Officer Holland of November 19, 2007 is AFFIRMED.
IS SO ORDERED.
Columbia, South Carolina