Thursday, December 18, 2014

SC Administrative Law Court Decisions

CAPTION:
David Taylor vs. SCDMV

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Appellant:
David Taylor

Respondents:
South Carolina Department of Motor Vehicles and South Carolina Department of Public Safety
 
DOCKET NUMBER:
08-ALJ-21-0410-AP

APPEARANCES:
n/a
 

ORDERS:

ORDER

STATEMENT OF THE CASE

This 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 affirmed.

BACKGROUND

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).

Pursuant 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.

ISSUE ON APPEAL

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 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).

DISCUSSION

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.[1]

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.[2] Accordingly, the Court concludes that Respondents adequately demonstrated that Trooper Richards properly requested a blood sample from Taylor.[3]

ORDER

IT IS THEREFORE ORDERED that the DMVH’s Final Order and Decision is AFFIRMED.

AND IT IS SO ORDERED.

______________________________

Ralph K. Anderson, III

Administrative Law Judge

December 10, 2008

Columbia, South Carolina



[1] In S.C. Dep’t of Motor Vehicles v. Fain, 06-ALJ-21-0931-AP (Apr. 7, 2008), this Court held that out-of-court statements made by medical personnel that are offered to show that a blood test was lawfully offered in lieu of a breath test are not hearsay.

[2] In Stacy, the Court of Appeals upheld a motorist’s felony DUI conviction where licensed medical personnel made a determination that it was not possible for law enforcement to transport the motorist to a detention center for a breath test because the motorist had not yet been treated for his injuries by an emergency room physician. Stacy, 315 S.C. 105, 431 S.E.2d 640.

[3] Because of my ruling in this case, I need not address the Department of Motor Vehicles’ argument that Taylor’s mouth was injured and that, therefore, Trooper Richards was not required to consult with licensed medical personnel prior to offering the blood test. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (noting that an appellate court need not address remaining issues when a prior issue is dispositive).


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