Monday, September 01, 2014

SC Administrative Law Court Decisions

CAPTION:
Jordan L. Hill vs. SCDMV

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Appellant:
Jordan L. Hill

Respondents:
South Carolina Department of Motor Vehicles
 
DOCKET NUMBER:
07-ALJ-21-0614-AP

APPEARANCES:
n/a
 

ORDERS:

ORDER

STATEMENT OF THE CASE

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.

Upon consideration of the record and the parties’ briefs, the DMVH’s Final Order and Decision is affirmed.

BACKGROUND

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.[1] 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, pp. 36-43).

Hill now appeals.

ISSUES ON APPEAL

1.        Did the Hearing Officer err in finding that that Trooper Greer was qualified

to 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

the DataMaster ticket?

3.      Did the Hearing Officer err in finding that that Appellant was lawfully

arrested?

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 giving Miranda

warnings justified rescission of the suspension?

STANDARD OF REVIEW

The 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).

(A) 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….

(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 statutory provisions;

(b)     In excess of the statutory authority of the agency;

©     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.

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.

The 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 (1992).

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).

DISCUSSION

1.      The Hearing Officer did not err in finding that that Trooper Greer was

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.

Mr. Simmons: No objection.

The Court: 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 pointed out:

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 was lawfully

arrested.

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 cause).

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:

The subject 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.

(emphasis added)

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)

Trooper Greer’s 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.

Finally, 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).

CONCLUSION

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.

AND IT IS SO ORDERED.

________________________

John D. McLeod

Administrative Law Judge

September 18, 2008

Columbia, South Carolina



[1] The court viewed the SLED web-video of the testing process at the police station.


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