OF THE CASE
This matter is an appeal by Dawn Lock Walter (Walter) from a
Final Order and Decision of the South Carolina Office of Motor Vehicle Hearings
The OMVH issued a Final Order and Decision following an administrative hearing held
pursuant to S.C. Code Ann. § 56-5-2951 (2006). 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 careful review of this case, the OMVH’s
Final Order and Decision is affirmed.
On September 27, 2007, Officer Robert Dale, a police officer for the Irmo Police Department,
responded to a police dispatch regarding an automobile accident. Upon arriving
at the scene, Officer Dale observed two vehicles partially in the median and
identified Walter as the driver of one of the vehicles. Upon investigating the
accident, Officer Dale determined that Walter failed to yield the right of way
to the other vehicle. Officer Dale smelled an odor of alcohol on Walter and
noticed that her speech was slurred. He advised Walter of her Miranda rights
and then administered three field sobriety tests to her. Officer Dale, who is
certified by the State’s Criminal Justice Academy to perform field sobriety
tests, concluded that Walter failed the tests. He arrested Walter for driving
under influence (DUI) and read her the DUI arrest warnings. Walter was
transported to the Irmo Police Department for a DataMaster test. After being
advised of her implied consent rights and re-advised of her Miranda rights, Walter
agreed to submit to a DataMaster test. The results of the test indicated that
Walter’s blood alcohol concentration was 0.30%.
on the results of the test, Walter was issued a written Notice of Suspension
pursuant to Section 56-5-2951(A). Thereafter, pursuant to Section
56-5-2951(B)(2), Walter filed a request for an administrative hearing to
challenge the suspension. The OMVH held an administrative hearing on December 12, 2007. At the hearing, the State introduced, without objection, the following
items: (i) a copy of Officer Dale’s DataMaster Certification card; (ii) the
accident report for Walter’s accident, (iii) the implied consent form signed by
Walter; (iv) Walter’s Breath Alcohol Analysis Report; and (v) the Notice of
Suspension issued to Walter. Walter, in turn, introduced a handwritten log,
accompanied by a letter from Captain Joe Nates of the Irmo Police Department
dated October 19, 2007, that showed “malfunctions, repairs, complaints, or
other problems” concerning the DataMaster machine used to produce Walter’s
Breath Alcohol Analysis Report. In his closing argument, Walter’s attorney
argued that the log established that the DataMaster machine’s simulator
solution had not been changed since 2006, in violation of SLED policy.
On January 11, 2008, the OMVH hearing officer issued a Final
Order and Decision sustaining Walter’s suspension. Walter now appeals.
1. Did the OMVH hearing officer err
in upholding Walter’s suspension when Officer Dale did not specifically testify
that he checked Walter’s mouth prior to administering a breath test?
2. Did the hearing officer err in
upholding Walter’s suspension when Walter introduced evidence that the solution
in the DataMaster machine had not been timely changed?
The OMVH 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 OMVH 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 OMVH. 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).
Thus, pursuant to the APA, this Court’s review is limited to
deciding whether the OMVH’s Final Order and Decision is unsupported by
substantial evidence or is affected by an error of law. Bass v. Kenco Group,
366 S.C. 450, 457, 622 S.E.2d 577, 581 (Ct. App. 2005). Substantial evidence
is not a mere scintilla of evidence, nor the evidence viewed blindly from one
side of the case, but is evidence which, considering the record as a whole,
would allow reasonable minds to reach the conclusion the agency reached in
order to justify its action. Hargrove v. Titan Textile Co., 360 S.C.
276, 289, 599 S.E.2d 604, 611 (Ct. App. 2004). The possibility of drawing two
inconsistent conclusions from the evidence does not prevent the agency’s
findings from being supported by substantial evidence. Id. at 290, 599
S.E.2d at 611. The party challenging an agency’s decision has the burden of
proving convincingly that the agency’s decision is unsupported by substantial
evidence. Waters v. S.C. Land Resources Conservation Comm’n, 321 S.C.
219, 226, 467 S.E.2d 913, 917 (1996).
Code Ann. § 56-5-2950(a) (2006) provides that:
A person who drives a motor vehicle in
this State is considered to have given consent to chemical tests of his breath,
blood, or urine for the purpose of determining the presence of alcohol or drugs
or the combination of alcohol and drugs if arrested for an offense arising out
of acts alleged to have been committed while the person was driving a motor
vehicle while under the influence of alcohol, drugs, or a combination of alcohol
and drugs. A breath test must be administered at the direction of a law
enforcement officer who has arrested a person for driving a motor vehicle in
this State while under the influence of alcohol, drugs, or a combination of
alcohol and drugs.
S.C. Code Ann. § 56-5-2951(A) (2006), the license of a motorist who registers
an alcohol concentration of 0.15% or above on a test conducted pursuant to
Section 56-5-2950(a) must be immediately suspended. However, under S.C. Code
Ann. § 56-5-2951(B)(2) (2006), a motorist who has his license so suspended may
request an administrative hearing to challenge the suspension. If such a
hearing is requested, the scope of the hearing must be limited to whether the
(1) was lawfully arrested or detained;
(2) was advised in writing of the rights enumerated in
(3) consented to taking a
test pursuant to Section 56-5-2950, and the:
(a) reported alcohol
concentration at the time of testing was fifteen one-hundredths of one percent
(b) individual who
administered the test or took samples was qualified pursuant to Section
(c) tests administered and
samples obtained were conducted pursuant to Section 56-5-2950; and
(d) the machine was
S.C. Code Ann. §
56-5-2951(F) (Supp. 2007).
an initial matter, there is some dispute between the parties as to the contents
of the Record on Appeal in this matter. On February 14, 2008, Walter filed a Notice of Appeal with the ALC pursuant to ALC Rule 33. ALC Rule 33 requires
that the Notice of Appeal contain a copy of the request for a transcript of the
hearing below. Walters’s Notice of Appeal contained no such document.
Further, the Record on Appeal submitted by the OMVH indicates in the index that no request for a transcript was received by the OMVH.
On April 4, 2008, Walter filed a motion for an extension to file her appellate brief noting
that the Record on Appeal contained neither the transcript nor the exhibits
that were submitted to the hearing officer at the hearing below. Walter
requested thirty days to supplement the record, which the ALC granted. On May 5, 2008 and June 6, 2008, Walter and the Department submitted their appellate briefs,
respectively. On June 17, 2008, Walter submitted her reply brief and a motion
to supplement the Record on Appeal with the transcript and a document she
claimed she submitted at the hearing.
On July 1, 2008, the Department objected to this motion as untimely. On July 9, 2008, OMVH supplemented the Record on Appeal with all of the exhibits that were
admitted at the hearing below by both Walter and the Department.
Walter did not fully comply with ALC Rule 33 due to her failure to submit a transcript
request to the OMVH prior to filing her Notice of Appeal, in order to properly
consider the issues in this appeal, the Court will permit the Record on Appeal
to be supplemented with the exhibits admitted by the hearing officer (as
provided by the OMVH) and the transcript.
of the Appellant’s Mouth
argues that the OMVH’s decision should be reversed because Officer Dale failed
to specifically testify that he complied with SLED implied consent policy
8.12.5(g) by checking Walter’s mouth prior to administering the breath test to
her. The Court disagrees.
is undisputed that Officer Dale failed to specifically testify that he complied
with SLED implied consent policy 8.12.5(g) by checking Walter’s mouth prior to
administering the breath test to her. However, Walter’s attorney did not
mention the mouth-checking requirement until his closing argument. Thus, the
question here is whether the State was required to prove that Officer Dale
complied with SLED implied consent policy 8.12.5(g) even though Walter did not
raise the issue until after the Record had been closed. Resolving this issue requires
determining whether the State must prove compliance with SLED policy as part of
its prima facie case. As discussed below, the Court concludes that the State
was not initially required to present evidence showing compliance with SLED
implied consent policy 8.12.5(g) in this case.
S.C. Code Ann. §
56-5-2950(e) (2006) governs situations where a violation of a SLED policy is
alleged. It provides:
Policies, procedures, and regulations promulgated by SLED may
be reviewed by the trial judge or hearing officer on motion of either
party. The failure to follow any of these policies, procedures, and
regulations, or the provisions of this section, shall result in the exclusion
from evidence any tests results, if the trial judge or hearing officer finds
that such failure materially affected the accuracy or reliability of the tests
results or the fairness of the testing procedure.
S.C. Code Ann. § 56-5-2950(e)
(2006) (emphasis added). Thus, under Section 56-5-2950(e), SLED policies must not
be considered by OMVH hearing officers unless a party expressly moves for their
consideration. Moreover, even in cases where a violation of SLED policy is
shown, rescission of the motorist’s administrative suspension is not automatic
under Section 56-5-2950(e). Rather, in such cases, exclusion of the motorist’s
test results may occur if the hearing officer “finds that such failure
materially affected the accuracy or reliability of the tests results or the
fairness of the testing procedure.” Based on these provisions of Section
56-5-2950(e), it is certainly reasonable to infer that the compliance with SLED
policies is not an element of the State’s prima facie case in proceedings like
the one held below.
inference is further supported by the case of State v. Cuccia, 353 S.C.
430, 578 S.E.2d 45 (Ct. App. 2003). In Cuccia, the Court of Appeals addressed
the question of whether, under the Double Jeopardy Clause, the administrative
suspension of a motorist’s driver’s license pursuant to S.C. Code Ann. §
56-1-286 (Supp. 2002) for driving with a blood alcohol level of .02% or more while
under the age of 21 prohibited a subsequent criminal prosecution of the
motorist for DUI. In analyzing the issue under the Blockburger “same elements” test, the Court of Appeals compared the elements required for
an administrative suspension under Section 56-1-286 with the elements necessary
to prove the crime of DUI. Notably, in setting forth the elements of a Section
56-1-286 administrative suspension, the Court of Appeals did not include
compliance with SLED policy. Cuccia, 353 S.C. at 438, 578 S.E.2d at 50.
Based on Section 56-5-2950(e)
and Cuccia, the Court concludes that the State is not required to present
evidence demonstrating law enforcement’s compliance with SLED implied consent
policy 8.12.5(g) in cases where the motorist does not timely raise the issue.
In this case, as discussed above, Walter’s attorney did not raise the issue of
Officer Dale’s compliance with SLED implied consent policy 8.12.5(g) until his
closing argument. In the Court’s view, this was untimely. As the U.S. Supreme
Court has noted, “[t]he fundamental requisite of due process of law is the
opportunity to be heard.” Mullane v. Central Hanover Bank & Trust Co.,
339 U.S. 306, 314 (1950) (quoting Grannis v. Ordean, 234 U.S. 385, 394 (1914)). Certainly, the opportunity to be heard has little value if the State
is not sufficiently apprised, at a time during the hearing in which it can
still present evidence, of the issues involved in the hearing. See Murdock
v. Murdock, 338 S.C. 322, 333, 526 S.E.2d 241, 248 (Ct. App. 1999)
(“Procedural due process requires that a litigant be placed on notice of the
issues which the court is to consider.”). By waiting until his closing
argument to raise the issue of compliance with SLED implied consent policy
8.12.5(g), Walter’s attorney deprived the State of a sufficient opportunity to
respond. Accordingly, the Court concludes that Officer Dale’s failure to
specifically testify that he complied with SLED implied consent policy 8.12.5(g)
in administering the DataMaster test to Walter did not mandate rescission of
Walter’s suspension since Walter failed to timely raise the issue.
of the DataMaster Test
also argues that OMVH’s decision should be reversed because the Irmo
Police Department’s log for the DataMaster machine that produced Walter’s
Breath Alcohol Analysis Report indicates that the Irmo Police Department last
changed the machine’s simulator solution in October 2006, in violation of SLED
policy. The Court disagrees.
consent policy 8.12.2(C)(1) provides in pertinent part that:
The DataMaster requires a solution change
after 100 simulator tests or 31 days, whichever comes first. . . . It is
acceptable for the period between solution changes to exceed 31 days, since the
instrument will not allow breath tests to occur until the solution is changed.
there is conflicting evidence, it is up to the hearing officer as the trier of
fact to determine its credibility and weight. See QZO, Inc. v. Moyer, 358 S.C. 246, 257, 594 S.E.2d 541, 547 (Ct. App. 2004). The
fact that the record, when considered as a whole, presents “[t]he possibility
of drawing two inconsistent conclusions from the evidence does not prevent an
administrative agency’s finding from being supported by substantial evidence.” Hargrove, 360 S.C. at 290, 599 S.E.2d at 611.
In the present case, the OMVH hearing officer’s decision
was supported by substantial evidence. First, the log and accompanying letter presented
by Walter do not conclusively prove that the DataMaster machine’s simulator
solution had not been changed since October 2006. For instance, according to the letter accompanying the log, the log shows
“malfunctions, repairs, complaints, or other problems” concerning the
DataMaster machine. It is unclear from the log and the accompanying letter
whether the log reflects instances in which the simulator solution was changed when
there was no malfunction, repair, complaint or other problem. Additionally, no testimony was presented to explain the
contents of the log.
Second, other evidence in the Record indicates that the
DataMaster machine’s simulator solution had been timely changed and that
Walter’s breath test results were reliable. For
instance, the DataMaster machine clearly allowed the breath test
to occur. As noted above, SLED
implied consent policy 8.12.2(C)(1) specifically states that “[i]t is
acceptable for the period between solution changes to exceed 31 days, since
the instrument will not allow breath tests to occur until the solution is
changed.” Moreover, Walter’s Breath Alcohol Analysis Report shows that the DataMaster machine passed a
simulator test that was performed prior to the evaluation of Walter’s breath sample.
Passage of the simulator test is evidence that the DataMaster machine was
working properly and that its results were reliable. See State v. Parker, 271 S.C. 159, 163, 245 S.E.2d 904, 906 (1978); State v.
Huntley, 349 S.C. 1, 5, 562 S.E.2d 472, 474 (2002). For these reasons, the
Court finds that there was substantial evidence to support the OMVH hearing
further argues that the OMVH’s decision should be reversed because the
log shows that a simulator failure occurred on September 17, 2007 and that no
corrective action was taken. The Court disagrees.
It is well-settled that
an issue cannot be raised for the first time on appeal. Staubes v. City of Folly Beach, 339 S.C. 406, 412, 529 S.E.2d 543, 546 (2000).
To be preserved for appellate review, the issue must have been: (1) raised to
and ruled upon by the trial court; (2) raised by the appellant; (3) raised in a
timely manner; and (4) raised to the trial court with sufficient specificity. S.C.
Dep’t of Transp. v. First Carolina Corp. of S.C., 372 S.C. 295, 301-02, 641
S.E.2d 903, 907 (2007) (quoting Jean Hoefer Toal et al., Appellate Practice
in South Carolina 57 (2d ed. 2002)).
Here, Walter never specifically raised the issue of the
September 17, 2007 simulator failure at the administrative proceeding.
Therefore, it is not preserved for appellate review.
IT IS THEREFORE
ORDERED that the OMVH’s Final Order and Decision is AFFIRMED.
AND IT IS SO ORDERED.
K. Anderson, III
January 9, 2009
Columbia, South Carolina