OF THE CASE
matter is an appeal by David Taylor from a Final Order and Decision of the
South Carolina Division of Motor Vehicle Hearings (DMVH) sustaining the
administrative suspension of Taylor’s driver’s license for refusing to submit
to a blood test. The DMVH’s Final Order and Decision was issued following an
administrative hearing held pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (2006).
Taylor argues that Respondents failed to establish that law enforcement complied
with S.C. Code Ann. § 56-5-2950(a) (2006) in offering him a blood test in lieu of
a less invasive breath 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
On February 23, 2008, at
approximately 10:00 p.m., Trooper C.B. Richards of the South Carolina Highway
Patrol was dispatched to an accident on Cumbee Trail Road in Aiken County. Upon arriving at the scene, he observed a pick-up truck that had travelled off
the roadway and was resting against a pine tree. Two deputies of the Aiken
County Sheriff’s Department were at the scene, as was an ambulance. The
deputies informed Trooper Richards that the occupants of the truck were in the
back of the ambulance. Trooper Richards entered the back of the ambulance to
speak with them. One of the occupants was Taylor, who was the owner of the
truck, and the other occupant was a woman. While speaking with them, Trooper
Richards detected a strong odor of alcohol. He also observed dried blood all
around Taylor’s mouth, nose, and right eye, as well on the fingers of both of Taylor’s hands. Taylor’s nose was swollen and appeared to be broken. Trooper Richards
questioned Taylor about where the couple was coming from and where they were
going, but he could not understand Taylor’s answers. Taylor admitted to Trooper
Richards that he had consumed a couple of beers since that afternoon.
Trooper Richards left
the ambulance to examine the truck. He found dried blood on the truck’s steering
wheel and gear shift. He investigated the roadway and determined that the
truck had run off the left side of the road, went over a shallow ditch and
struck a tree. Trooper Richards then travelled to Aiken Regional Medical Center, where Taylor and the other occupant of the truck had been transported. Upon
arriving at the hospital, Trooper Richards made contact with Taylor and
subsequently placed him under arrest for driving under the influence. After
consulting with an emergency room doctor about Taylor’s ability to take a breath
test, Trooper Richards read Taylor his implied consent rights and asked him to
submit to a blood test. Taylor refused to do so. Based on that refusal,
Trooper Richards issued Taylor a written Notice of Suspension pursuant to S.C.
Code Ann. § 56-5-2951(A) (2006).
to Section 56-5-2951(B)(2), Taylor filed a request for an administrative
hearing to challenge his suspension. The hearing was held before a DMVH
hearing officer on July 3, 2008. In a Final Order and Decision issued August
1, 2008, the DMVH hearing officer sustained Taylor’s suspension. Taylor now appeals.
Did Respondents fail to demonstrate that
law enforcement complied with S.C. Code Ann. § 56-5-2950(a) (2006) in offering Taylor a blood 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
(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(5) (as amended by 2008 S.C. Act No. 334).
Taylor argues that
Respondents failed to adequately establish that Trooper Richards complied with S.C.
Code Ann. § 56-5-2950(a) (2006) in offering him a blood test. Specifically, Taylor argues that the record does not establish that the blood test was offered for a
reason found acceptable by licensed medical personnel. The Court disagrees.
In an administrative
hearing involving a motorist’s refusal to provide a blood sample for a blood alcohol
test, the State is required to demonstrate that law enforcement properly
requested the blood sample from the motorist. See Peake v. S.C.
Dep’t of Motor Vehicles, 375 S.C. 589, 654 S.E.2d 284 (Ct. App. 2007). S.C.
Code Ann. § 56-5-2950(a) (2006) sets forth the circumstances under which a
blood sample may properly be requested. It provides in pertinent part:
At the direction of the arresting officer, [a person arrested
for DUI] first must be offered a breath test to determine the person’s alcohol concentration.
If the person is physically unable to provide an acceptable breath sample
because he has an injured mouth, is unconscious or dead, or for any other
reason considered acceptable by the licensed medical personnel, the arresting
officer may request a blood sample to be taken.
S.C. Code Ann. § 56-5-2950(a)
(2006). In interpreting Section 56-5-2950(a), our Court of Appeals has held
that “the determination that the accused is physically unable to provide an
acceptable breath sample due to any reason other than unconsciousness, death,
or injury to the mouth requires the determination of licensed medical personnel.” State v. Kimbrell, 326 S.C. 344, 348, 481 S.E.2d 456, 458 (Ct. App.
1997). Additionally, the court has construed the phrase “licensed medical
personnel” in Section 56-5-2950(a) to mean licensed physicians, licensed
registered nurses, and other medical personnel trained to take blood samples in
a licensed medical facility. See State v. Stacy, 315 S.C.
105, 107, 431 S.E.2d 640, 641 (Ct. App. 1993).
In the present
case, Trooper Richards provided the following pertinent testimony:
Trooper Richards: I . . . asked ER Dr. James if I
could take Taylor for a DataMaster test and he said . . .
Taylor’s attorney: I object to
hearsay as to what the doctor said.
DMVH Hearing Officer: I’m going to
allow it in.
Trooper Richards: I’ll rephrase it by simply saying I
was not allowed to take Mr. Taylor out of the ER for a DataMaster test.
In the Court’s
view, this testimony sufficiently supports the conclusion that licensed medical
personnel, not Trooper Richards, made the determination that Taylor was unable
to submit to a breath test. Trooper Richards specifically named the doctor
with whom he spoke, and Taylor has not argued that Dr. James is not “licensed
medical personnel.” Moreover, Trooper Richards testified that, in speaking
with Dr. James, he was informed that he was not allowed to offer a
breath test to Taylor. This testimony indicates that it was Dr. James, not
Trooper Richards, who made the determination that Taylor was unable to provide
an acceptable breath sample.
Accordingly, the Court concludes that Respondents adequately demonstrated that Trooper
Richards properly requested a blood sample from Taylor.
IS THEREFORE ORDERED that the DMVH’s Final Order and Decision is AFFIRMED.
AND IT IS SO ORDERED.
K. Anderson, III
December 10, 2008
Columbia, South Carolina