Thursday, April 24, 2014

SC Administrative Law Court Decisions

CAPTION:
Paul E. Spear vs. SCDMV, et al

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Appellant:
Paul E. Spear

Respondents:
South Carolina Department of Motor Vehicles and Newberry Police Department
 
DOCKET NUMBER:
08-ALJ-21-0205-AP

APPEARANCES:
n/a
 

ORDERS:

ORDER

STATEMENT OF THE CASE

This matter is an appeal by Appellant Paul Spear from a Final Order and Decision of the South Carolina Division of Motor Vehicle Hearings (DMVH). The DMVH’s Final Order and Decision was issued following an administrative hearing held pursuant to S.C. Code Ann. § 56-5-2951 (2006 & Supp. 2006). Spear contends that the DMVH hearing officer erroneously sustained his driver’s license suspension for refusing to submit to a breath test. Specifically, Spear claims that he was not properly advised of his implied consent rights prior to the administration of the test. The Administrative Law Court (ALC or Court) has jurisdiction to review this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2007). Upon consideration of the briefs, the DMVH’s Final Order and Decision is reversed.

BACKGROUND

On November 20, 2007, Officer Barnett of the Newberry Police Department arrested Spear for driving under the influence (DUI) and transported him to the Newberry County Detention Center for a breath test. Upon arriving at the detention center, Officer Barnett read the implied consent advisement to Spear, but he did not provide Spear with a tangible copy of the advisement form. Officer Barnett subsequently issued Spear a Notice of Suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (2006) for refusing to submit to breath testing.

Spear subsequently filed a request with the DMVH for an administrative hearing to challenge his suspension. An administrative hearing was held on February 13, 2008. On March 13, 2008, the DMVH hearing officer issued a Final Order and Decision, in which she sustained Spear’s suspension. Spear now appeals.

ISSUE ON APPEAL

Did the DMVH hearing officer err by sustaining Spear’s suspension when Spears was not advised in writing of his implied consent rights prior to the administration of the breath test?

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. § 1-23-505(2) (as amended by 2008 S.C. Act No. 334). As such, the APA’s standard of review governs appeals from decisions of the DMVH. See S.C. Code Ann. § 1-23-380 (as amended by 2008 S.C. Act No. 334); 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(5) (as amended by 2008 S.C. Act No. 334). See S.C. Code Ann. § 1-23-600(E) (as amended by 2008 S.C. Act No. 334) (directing administrative law judges to conduct appellate review in the same manner prescribed in § 1-23-380). 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(5) (as amended by 2008 S.C. Act No. 334).

A decision is supported by “substantial evidence” when the record as a whole allows reasonable minds to reach the same conclusion reached by the agency. Bilton v. Best Western Royal Motor Lodge, 282 S.C. 634, 641, 321 S.E.2d 63, 68 (Ct. App. 1984). A decision will not be set aside simply because reasonable minds may differ on the judgment. Lark v. Bi-Lo, Inc., 276 S.C. 130, 136, 276 S.E.2d 304, 307 (1981). The fact that the record, when considered as a whole, presents the possibility of drawing two inconsistent conclusions from the evidence does not prevent the agency’s findings from being supported by substantial evidence. Waters v. S.C. Land Resources Conservation Comm’n, 321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996); Grant v. S.C. Coastal Council, 319 S.C. 348, 353, 461 S.E.2d 388, 391 (1995).

DISCUSSION

Spear argues that the DMVH hearing officer erred by sustaining his suspension since he was not advised in writing of his implied consent rights prior to the administration of the breath test. The Court agrees.

S.C. Code Ann. § 56-5-2950(a) (2006) provides in pertinent part:

No tests may be administered or samples obtained unless the person has been 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) (emphasis added).

Here, the videotape of the test-site shows that, while Officer Barnett did read the implied consent advisement to Spear, he did not give Spear a tangible copy of the advisement form prior to the administration of the breath test. Thus, Section 56-5-2950(a) was clearly violated.

Nevertheless, the Department, relying on Taylor v. S.C. Dep’t. of Motor Vehicles, 368 S.C. 33, 627 S.E.2d 751 (Ct. App. 2006), cert. granted, Shearouse Adv. Sh. No. 35 (2007), argues that the hearing officer did not err by sustaining Spear’s suspension. In Taylor, a motorist was arrested for DUI after being involved in an accident. Upon determining that the motorist could not take a breath test due to the heavy mouth injuries that he sustained from the accident, the arresting officer requested the motorist to submit to a blood test. The arresting officer read out loud to the motorist a form which set forth the motorist’s implied consent rights, but he did not provide the motorist with a tangible copy of the form. The motorist refused the blood test and, as a result, was issued a Notice of Suspension pursuant to Section 56-5-2951(A). An administrative hearing was subsequently held regarding the suspension, at which the motorist argued that the arresting officer violated Section 56-5-2950 by failing to give him a tangible copy of the implied consent form. On review of the matter, the Court of Appeals held that “a violation of section 56-5-2950 without resulting prejudice will not lead to a suppression of the evidence obtained pursuant to this section.” Taylor, 368 S.C. at 38, 627 S.E.2d at 754. The court then concluded that the motorist did not suffer prejudice as a result of the officer’s violation of § 56-5-2950, explaining:

Taylor argues he was not informed of the implied consent rights in writing as provided by section 56-5-2950. Taylor does not argue that he did not receive the implied consent rights, or that he would have provided a blood test if he had received the implied consent rights in writing. Therefore, Taylor was not prejudiced by the fact that Officer Hamm read the implied consent rights out loud. Because Taylor was not prejudiced, the trial court erred in reversing the administrative hearing officer’s order.

Id.

In this case, the following exchange occurred between Spear and his attorney, Heath Taylor, at the hearing:

Mr. Taylor: Do you think it would have helped you in your decision whether or not to refuse or take the test if you had had this piece of paper [the implied consent advisement form] in your hands that evening?

Mr. Spear: I believe it would.

Mr. Taylor: You think it would have changed your decision?

Mr. Spear: Yes, sir.

Thus, unlike the motorist in Taylor, Spear testified that being advised of his implied consent rights in writing would have changed his decision to refuse testing. This difference is very significant since the Taylor court, in making its prejudice determination, expressly noted that the motorist had not argued that “he would have provided a blood test if he had received the implied consent rights in writing.”

The hearing officer in this case gave two reasons for her decision not to accept Spear’s testimony. The first was that Spear “verbally stated that he was not going to take the breath test before and after he was read the Advisement of Implied Consent Rights.” However, while this statement is true, the hearing officer’s reasoning fails to account for the purpose of the requirement that the implied consent be given in writing. “The Court must presume the legislature did not intend a futile act, but rather intended its statutes to accomplish something.” Denene, Inc. v. City of Charleston, 352 S.C. 208, 212, 574 S.E.2d 196, 198 (2002) (citing TNS Mills, Inc. v. S.C. Dep’t of Revenue, 331 S.C. 611, 503 S.E.2d 471 (1998)). The purpose of requiring that a motorist be given a written copy of the implied consent form is clearly to insure that the motorist receives sufficient notice of the consequences of his actions. The reasoning of Taylor thus establishes that though written notice is a prerequisite to lawfully establishing informed consent, if there is no prejudice[1] from that failure, then there is no harm to the motorist and if there is no harm, then the defective notice is immaterial.

Here, there is evidence of prejudice and thus material evidence of harm resulting from the failure to give written notice. The decision below nonetheless discounts that harm by inferring that an assertion to refuse the test before any notice and a subsequent affirmation after defective notice establishes that no harm occurred. The import of that reasoning is that evidence of defective notice may establish that there is evidence of no harm. In other words, the prerequisite of written notice may be made immaterial by evidence of verbal notice. That reasoning follows the fallacy of petition principii (begging the question) – i.e., assuming as a premise for one’s argument the very conclusion that one intends to prove. See Irving M. Copi, Introduction to Logic 97-98 (5th ed. 1978).[2] Furthermore, the fact that lack of harm negates the implication of defective notice does not inversely lead to the logical conclusion that verbal notice, no matter how sufficient, discounts the prerequisite of written notice. Rather, the harm emanates from the failure to give adequate notice, and it cannot necessarily be assuaged by giving defective notice.

The second reason cited by the hearing officer was that Spear “refused to sign any of the documents.” This fact, on its face, inferentially supports a conclusion that Spear would have refused the test even if properly advised of his implied consent rights. However, when put in context with the evidence of Spear’s conduct at the test site, the inference fails. Here, the test-site videotape shows that Officer Barnett asked Spear, “Since you refused the test, am I to understand that you’re going to refuse signing anything?” To which Spear answered, “Correct.” Officer Barnett then stated, “I just need to know so I can write ‘Refused’ on there,” and dropped the matter. The videotape further shows that, throughout the testing process, Spear respectfully responded to all of Officer Barnett’s questions. While a court does not have to accept uncontroverted testimony as establishing the truth, the same should be accepted unless there is reason for disbelief. See Elwood Constr. Co. v. Richards, 265 S.C. 228, 234, 217 S.E.2d 769, 771 (1975). In other words, “[a] court may not base its findings on a suspicion which is contrary to undisputed positive testimony.” Hankerson v. Moody, 329 S.E.2d 791, 794 (Va. 1985); see also Hatcher v. Sec’y, Dep’t of Health and Human Servs., 898 F.2d 21, 24 (4th Cir. 1989) (finding evidence was insufficient to warrant “a wholesale rejection” of claimant’s testimony). In this case, the simple fact that Spear refused to sign the documents does not establish an adequate basis to negate his testimony that he would not have refused the test had he been properly advised of his implied consent rights.[3]

Accordingly, the Court finds that, in light of Spear’s express testimony to the contrary, the hearing officer’s conclusion that Spear did not suffer prejudice as a result of Officer Barnett’s failure to comply with Section 56-5-2950 was clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record. Accordingly, the DMVH’s Final Order and Decision must be reversed.

ORDER

IT IS THEREFORE ORDERED that the DMVH’s Final Order and Decision is REVERSED, and that the administrative suspension of Spear’s driver’s license shall be rescinded.

IT IS SO ORDERED.

______________________________

Ralph K. Anderson, III

Administrative Law Judge

September 8, 2008

Columbia, South Carolina



[1] The prejudice is a change of the motorist’s decision as a result of notice of the consequences of that decision.

[2] Put another way, it is fallacious to use the unproven assumption that a motorist who receives verbal notice cannot suffer prejudice as a result of not receiving written notice to “prove” that a motorist who received verbal notice did not suffer prejudice as a result of not receiving written notice.

[3] Notably, the hearing officer did not find that Spear was not credible but rather based her decision upon the factual inferences addressed above.


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