OF THE CASE
matter is an appeal by the South Carolina Department of Motor Vehicles
(“Department”) 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 on August 1, 2008 following an administrative hearing held pursuant to S.
C. Code Ann. § 56-5-2951 (2006 and Supp. 2006). The Appellant Kathy Flowers
(“Flowers) contends that the DMVH Hearing Officer erroneously suspended her
license. The Administrative Law Court (“ALC” or “Court”) has jurisdiction to
review this matter pursuant to S. C. Code Ann. § 1-23-600 (Supp. 2007).
June 28, 2008, at approximately 12:15 a.m., Officer Santos responded to Long Point Road in Mount Pleasant, South Carolina. Upon arrival and investigation, Officer
Santos placed Flowers under arrest for Driving Under the Influence. At the Mt.
Pleasant Police Department, Office Santos advised Flowers of her Implied Consent
Advisement and allegedly went through the breath sequences as mandated by SLED.
The DataMaster processed a Blood Alcohol reading. Thereafter Ms. Flowers was
transported to the Charleston County Jail.
license was subsequently suspended for providing a breath sample of greater than
0.15%. She timely filed a notice requesting an Implied Consent hearing, which
was heard on July 29, 2008 at the Hanahan Municipal Court. The Hearing Officer,
Tippit affirmed the suspension. This appeal followed.
1. Did the hearing officer err in failing to reinstate the Appellant’s
driving privilege due to the fact that the Respondent failed to establish
proper foundation that the DataMaster Machine was working properly?
2. Did the Hearing officer commit reversible error by admitting Respondent’s
exhibits into evidence, in violation of the SCDMV Hearing Procedures, The South
Carolina Rules of Civil Procedure and The South Carolina Rules of Evidence?
STANDARD OF REVIEW
is authorized by law to determine contested cases arising from the Department. See S. C. Code Ann. § 1-23-600 (Supp. 2006). Therefore, the DMVH
is an “agency” under the Administrative Procedures Act (“APA”). See, S. C.
Code Ann. § 1-23-310 (2) (2005). As such, the APA’s standard of review
governs appeals from decisions of the DMVH. See, S. C. Code Ann.
§ 1-23-380 (Supp. 2006). The standard used by appellate bodies, including the
ALC, to review agency decisions is provided by S. C. Code Ann.
§ 1-23-380 (A) (5) (Supp. 2006). The scope of judicial review in cases such as this is
limited by the APA, S. C. Code Ann. Section 1-23-380(A)(5). That
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 [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
(b) in excess of the statutory authority of
(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.
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, 310 S. C. 348, 353, 461 S. E. 2d 388, 391
In applying the substantial evidence rule, the factual
findings of the administrative agency are presumed to be correct. Rodney v.
Michelin Tire Corp., 320 S. C. 515, 519, 466 S. E. 2d 357, 359 (1996) [citing
Kearse v. State Health and Human Servs. Fin. Comm’n., 318 S. C. 198, 200,
456 S. E. 2d 892, 893 (1995)]. The party challenging an agency action has the
burden of proving convincingly that the agency’s decision is unsupported by
substantial evidence. Waters, 321 S. C. at 226, 467 S. E. 2d at 917.
I. The hearing officer erred in failing to reinstate the Appellant’s
driving privileges due to the fact that Respondent failed to establish proper
foundation that the DataMaster Machine was working properly.
Code Ann. 56-5-2951(F) establishes the scope of an Implied Consent Hearing to
whether the person:
was lawfully arrested or detained;
(2) was advised in
writing of the rights enumerated in Section 56-5-2950;
(3) refused to
submit to a test pursuant to Section 56-5-2950; or
(4) consented to
taking a test pursuant to Section 56-5-2950, and the:
alcohol concentration at the time of testing was fifteen one-hundredths of one
percent or more;
individual who administered the test or took samples was qualified pursuant to Section
administered and samples obtained were conducted pursuant to Section 56-5-2950;
(d) the machine was working properly. (emphasis
Prior to introducing evidence of the results of a DataMaster
test, a foundation for such evidence must be laid by proving, among other
things, that the DataMaster machine was in proper working order at the time of
the test. See SCDMV v. Sean Burke, Docket No. 06-ALJ-21-0574-AP
(July 23, 2007); See State v. Parker, 271 S.C. 159, 163,
245 S.E.2d 904, 906 (1978); State v. Jansen, 305 S.C. 320, 322, 408
S.E.2d 235, 237 (1991). To determine whether a DataMaster machine is working
properly, a simulator test is performed on the DataMaster machine. See State v. Huntley, 349 S.C.1, 5, 562 S.E.2d 472, 474 (2002); Parker,
271 S.C. at 163. The result of the simulator test must reflect a reading
between 0.076% and 0.084%. S.C. Code Ann. Section 56-5-2950(a) (2007).
is true that “in many cases, the DataMaster test report itself will
sufficiently demonstrate that the machine was working properly, since such
reports typically include the result of the simulator test.” See SCDMV
v. Sean Burke, Docket No. 06-ALJ-21-0574-AP (July 23, 2007) citing Ronnie
M. Cole & James B. Huff, Handling Traffic Cases in South Carolina 279-81 (Candace Koopman Lockman ed., 4th ed. 2005) (setting forth
copies of DataMaster test reports) However, as discussed below, the DataMaster
test report should have never been admitted by the Hearing Officer because it
was not an original or certified copy of the report.
the foundation of a properly working DataMaster machine, testimony regarding a breath
sample is inadmissible for lack of foundation. Officer Santos’ testimony that
he administered a breath test to the Appellant which read higher than a 0.15%
should not have been considered by the Hearing Officer, becasue he had no
evidence to substantiate that the machine was working properly. Without
evidence of a properly working DataMaster machine, the evidence offered that Appellant’s
reading was greater than 0.15% should have been excluded. For these reasons,
the Hearing Officer erred in affirming the Appellant’s suspension.
II. The Hearing officer committed reversible error by admitting Respondent’s
exhibits into evidence, in violation of the SCDMV Hearing Procedures, The South
Carolina Rules of Civil Procedure and South Carolina Rules of Evidence.
In enforcement actions where an agency initiates
enforcement and claims that a party violated a statute or regulation, the ALC
has consistently held that the agency is the party maintaining the affirmative
of the issue and the agency, therefore, bears the burden of proof. SCDMV v.
Jennifer W. Lavigne Docket No. 06-ALJ-21-0056-AP
(January 10, 2007). To prove the content of a writing, recording,
or photograph, the original writing, recording, or photograph is required
except as otherwise provided by these rules or statute (Rule 1002 of the SCRE).
“A duplicate is admissible to the same extent as and original unless (1) the
genuine question is raised to the authenticity of the original or (2) in the
circumstances it would be unfair to admit the duplicate in lieu of the original.”
(Rule 1003 of the SCRE). “For matters in which the SCDMV is not required to
appear at the hearing pursuant to SC Code Ann. 1-23-660, any records submitted
by the Department as documentary evidence prior to the hearing must be in the
form of certified copies (Rule 14(c) RPDMVH). Moreover, the Notice of Hearing
states that “all exhibits moved for introduction at the hearing must be
originals.” (emphasis in original).
In the instant case, Officer Santos brought
copies of the DataMaster ticket as evidence of a proper breath test and a
reading of greater than 0.15%, in violation of the Rules of Evidence and the
RPDMVH. The submission of the DataMaster ticket was properly objected to as
being hearsay, because it was not an original or certified copy. The Hearing
Officer stated that the notification of the hearing indicated that originals
must be brought unless cause could be shown why it was not possible. The Hearing
Officer explained that other officers from Officer Santos’ department bring
originals to the hearings. She asked him if he had a notary at his agency to
authenticate the copies, and he replied, “I do.” Therefore, it was improper for
the Hearing Officer to admit the DataMaster ticket into evidence because Officer
Santos failed to show the Hearing Officer why it was not possible for him to
bring the original DataMaster Ticket or a certified copy of the ticket.
IT IS THEREFORE ORDERED that the DMVH’s Final Order and Decision is REVERSED and the
Department’s suspension of Respondent Flowers’s driver’s license is reversed.
AND IT IS SO ORDERED.
CAROLYN C. MATTHEWS
Columbia, South Carolina