OF THE CASE
This matter is an appeal by the South Carolina Department of
Motor Vehicles (Department) from a Final Order and Decision of the South
Carolina Office of Motor Vehicle Hearings (OMVH) issued on April 3, 2007.
The OMVH’s Final Order and Decision, which rescinded the administrative suspension
of Respondent’s driver’s license, was issued following a hearing held pursuant
to S.C. Code Ann. § 56-5-2951. The Administrative Law Court (ALC) has
jurisdiction to review this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp.
2008). Upon consideration of this matter, the OMVH’s Final Order and Decision is reversed.
night of February 10, 2007, Trooper N.L. Sprouse of the South Carolina Highway
Patrol was on routine patrol in Beaufort County. As he came across the McTeer Bridge on S.C. 802, he noticed a vehicle swerve a bit, go over the center line, and
then travel back over the fog line. He activated the videotape system in his
patrol car. The vehicle continued to swerve and became more erratic. Trooper
Sprouse initiated a traffic stop and identified the driver of the vehicle as
Respondent. He asked Respondent if he had been drinking. Respondent initially
answered no, but when Trooper Sprouse asked him a second time, he admitted to
consuming three beers in a twenty-four hour period. Trooper Sprouse then
administered the following three field sobriety tests to Respondent: (i) the
horizontal gaze nystagmus test; (ii) the walk-and-turn test; and (iii) the
one-leg stand test. Trooper Sprouse concluded that Respondent failed all three
tests and that he was not suitable to drive. Trooper Sprouse placed Respondent
under arrest for driving under the influence (DUI) and transported him to a
detention center for a DataMaster test.
arriving at the detention center, Trooper Sprouse asked Respondent to provide a
breath sample for the DataMaster test, and Respondent consented. Respondent’s
breath sample registered a blood alcohol concentration level of 0.19%. Based
on that result, Trooper Sprouse suspended Respondent’s driver’s license pursuant
to S.C. Code Ann. § 56-5-2951(A).
subsequently requested an administrative hearing to challenge his suspension. The
hearing was held on March 28, 2007 before an OMVH hearing officer. On April 3,
2007, the OMVH hearing officer issued a Final Order and Decision rescinding the
suspension of Respondent’s driver’s license. The Department now appeals.
1. Did the hearing officer err in holding that Trooper Sprouse
had insufficient probable cause to arrest Respondent for DUI?
2. Did the hearing officer err when she rescinded Respondent’s
suspension on grounds that were never raised at the administrative hearing?
3. Did the hearing officer err by rescinding Respondent’s
suspension because Trooper Sprouse did not present documentary evidence to show
that he was DataMaster certified?
4. Did the hearing officer err when she ruled that the
DataMaster operator’s testimony was insufficient to establish that he had given
Respondent the correct implied consent advisement?
STANDARD OF REVIEW
is authorized by law to determine contested cases arising from the Department. See S.C. Code Ann. § 1-23-660 (Supp. 2008). Therefore, the OMVH is an
“agency” under the Administrative Procedures Act (“APA”). See S.C. Code
Ann. § 1-23-505(2) (Supp. 2008). As such, the APA’s standard of review governs
appeals from decisions of the OMVH. See S.C. Code Ann. § 1-23-380 (Supp.
2008); 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) (Supp. 2008). See S.C. Code
Ann. § 1-23-600(E) (Supp. 2008) (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
(d) affected by other error
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) (Supp. 2008).
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).
Department argues that the OMVH hearing officer erred by determining that
Trooper Sprouse lacked probable cause to arrest Respondent for DUI. The court agrees.
cause for a warrantless arrest exists when the circumstances within the
arresting officer’s knowledge are sufficient to lead a reasonable person to
believe that a crime has been committed by the person being arrested. State
v. Baccus, 367 S.C. 41, 49, 625 S.E.2d 216, 220 (2006). Whether probable
cause exists depends upon the totality of the circumstances surrounding the
information at the officer’s disposal. Id.
Trooper Sprouse testified that he witnessed Respondent driving erratically on a
Saturday night, that Respondent admitted to consuming alcohol, and that
Respondent failed all three field sobriety tests that were administered to
him. No one testified on behalf of Respondent, and the videotape of the arrest
was not introduced into evidence. Based on the record as a whole, the court
concludes that Trooper Sprouse had probable cause to arrest Respondent for
DUI. Cf. Kelly v. S.C. Dep’t of Highways, 323 S.C. 334, 474
S.E.2d 443 (Ct. App. 1996) (finding probable cause to arrest based upon arresting
officer’s testimony that motorist drove erratically, motorist smelled of
alcohol, motorist admitted to having consumed a few beers, and motorist
performed poorly on a field sobriety test). Accordingly, the hearing officer’s
decision will not be affirmed on this basis.
Not Raised at Hearing
the Department argues that the OMVH hearing officer erred by rescinding Respondent’s
suspension on grounds that were never raised at the administrative hearing. Specifically,
the Department points to the hearing officer’s findings that: (i) Trooper
Sprouse “did not offer any evidence that he checked Respondent’s mouth before
requesting a breath sample in accordance with SLED policy and procedure;” and
(ii) “there was no evidence that the machine was working properly.” Each
finding is discussed below.
of Respondent’s Mouth
Pursuant to SLED implied consent policy 8.12.5(G),
DataMaster operators are required to “look inside the subject’s mouth and/or
ask the subject if he/she has any foreign material and/or removable dental work
in his/her mouth.” Nevertheless, at implied consent hearings like the one held
below, the scope of the hearing is generally limited to whether the motorist: (1)
was lawfully arrested or detained; (2) was advised in writing of the rights
enumerated in Section 56-5-2950; (3) consented to taking a test pursuant to
Section 56-5-2950, and: (a) the reported alcohol concentration at the time of
testing was fifteen one-hundredths of one percent or more; (b) the individual
who administered the test or took samples was qualified pursuant to Section
56-5-2950; (c) the tests administered and samples obtained were conducted
pursuant to Section 56-5-2950; and (d) the machine was working properly. S.C.
Code Ann. § 56-5-2951(F). The only method by which the hearing could have been
expanded beyond these issues to include a SLED policy compliance issue was
through a Section 56-5-2950(e) motion. Section 56-5-2950(e) provided that:
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 §
suspensions under Section 56-5-2951 cannot be rescinded simply because the
State failed to present evidence that law enforcement complied with a SLED
policy unless the motorist makes a motion during the hearing requesting the OMVH
hearing officer to review such SLED policy and the hearing officer determines
that law enforcement’s failure to comply with the SLED policy materially
affected the accuracy or reliability of the tests results or the fairness of
the testing procedure.
at no point during the hearing did Respondent’s attorney mention, or even
allude to, SLED implied consent policy 8.12.5(G). Moreover, there is no
evidence in the Record that shows that Trooper Sprouse failed to comply with SLED
implied consent policy 8.12.5(G). Therefore, the hearing officer committed
error by rescinding Respondent’s suspension on this basis.
SLED policy compliance, the issue of whether “the machine was working properly”
is one of the issues set forth in Section 56-5-2951(F). Nevertheless, the proper
working order of the DataMaster machine is not an element of the State’s prima
facie case. See State v. Cuccia, 353 S.C. 430, 438, 578 S.E.2d
45, 50 (Ct. App. 2003) (enumerating the elements required for suspending a
motorist’s driver’s license under S.C. Code Ann. § 56-1-286, the implied
consent statute applicable to motorists under the age of 21). Rather, it is a foundational requirement necessary for the proper admission of
the DataMaster test results. See State v. Parker, 271
S.C. 159, 163, 245 S.E.2d 904, 906 (1978) (setting forth the foundational
requirements for the admission of breath test results).
this case, it appears that the hearing officer was not aware that the proper
working order of the DataMaster machine was merely a foundational requirement,
and not an element of the State’s prima facie case. For instance, the hearing
officer clearly admitted into evidence Trooper Sprouse’s testimony regarding Respondent’s
DataMaster test results since she specifically found that “Respondent submitted
a breath sample of 0.19%.” Yet, she ultimately rescinded Respondent’s
suspension on the grounds that “there was no evidence that the machine was
had the hearing officer ruled against Respondent in this case, Respondent, who
failed to object to the admission of the DataMaster test results, would have
been precluded by our State’s issue preservation requirements from arguing that
the State failed to lay a proper foundation for the DataMaster test results. “South Carolina appellate courts do not recognize the ‘plain error rule,’ under which a
court in certain circumstances is allowed to consider and rectify an error not
raised below by the party.” Elam v. S.C. Dep’t of Transp., 361
S.C. 9, 24, 602 S.E.2d 772, 780 (2004). Rather, “[a] contemporaneous objection
is required to properly preserve an error for appellate review.” State v.
Hoffman, 312 S.C. 386, 393, 440 S.E.2d 869, 873 (1994); see also State
v. Black, 319 S.C. 515, 521-22, 462 S.E.2d 311, 315 (Ct. App. 1995)
(“Failure to object when the evidence is offered constitutes a waiver of right
to object.”). Here, however, the hearing officer ruled in favor of Respondent.
The Department nonetheless contends that, similar to appellate courts, trial
courts are not permitted to rule on issues that were not raised at trial.
the court was unable to find a South Carolina case that directly addresses the
issue raised here, the Missouri Supreme Court’s decision in Reinert v.
Director of Revenue, 894 S.W.2d 162, 164 (Mo. 1995) is squarely on point.
In that case, the defendant’s driver’s license was suspended pursuant to a
Missouri statute that required the State’s Department of Revenue to suspend a
person’s license upon determining that the person was arrested, with probable
cause, for driving a motor vehicle while the alcohol concentration in his blood
was ten-hundredths of one percent or more. During the trial, the printout from
the breath analysis machine reflecting the defendant’s blood alcohol level was
admitted into evidence without objection. However, when the department’s
director sought to admit the maintenance report for the breath analysis machine,
the defendant objected. The trial court reserved ruling on the defendant’s objection
to allow the parties to file briefs on the issue. In its final order, the
trial court sustained the defendant’s objection to the maintenance report and
ordered that the defendant’s driving privileges be reinstated. On appeal of
the matter, the Missouri Supreme Court reversed the trial court’s decision. Specifically,
it held that:
Admission of the maintenance report was
unnecessary in this case. Although one of the foundational prerequisites
for the admission of the results of a breath alcohol test is proof that the
machine has been properly maintained, the foundational prerequisites are
unnecessary where the test result is admitted in evidence without objection.
When evidence of one of the issues in the case is admitted without objection,
the party against whom it is offered waives any objection to the evidence, and
it may be properly considered even if the evidence would have been excluded
upon a proper objection. In the present case, the evidence of Reinert’s blood
alcohol content was admitted without objection. The trial court, therefore,
should have considered the evidence.
Id. at 164 (emphasis added) (internal citations omitted).
in Reinert, in this case, Respondent did not object when Trooper Sprouse
testified as to the results of Respondent’s DataMaster test. Moreover, Respondent
did not ask Trooper Sprouse any questions about the working order of the
DataMaster machine, other than whether Trooper Sprouse checked to see if the
solutions were current. (Trooper Sprouse testified that he did so.) Furthermore,
the issue of whether the DataMaster machine was working properly at the time of
the test was not raised in any other manner at the hearing. Nonetheless, the
hearing officer rescinded, sua sponte, Respondent’s suspension on the
grounds that “there was no evidence that the machine was working properly.”
the facts of this case, the court finds that the hearing officer committed
error. The court concludes that the State is not required to present evidence
regarding the working order of the DataMaster machine when that issue is not
raised at the administrative hearing. South Carolina appellate courts have
held that “evidence received without objection is competent.” Toyota of
Florence, Inc. v. Lynch, 314 S.C. 257, 266, 442 S.E.2d 611, 616 (1994); see
also Brown v. Ryder Truck Rental, 300 S.C. 530, 534 n.3, 389 S.E.2d
161, 164 n.3 (Ct. App. 1990) (“By the Commission’s receiving this testimony
without objection, it became competent.”); State v. White, 215 S.C. 450,
459, 55 S.E.2d 785, 787 (1949) (“The rule is well settled that evidence even
though incompetent, if admitted without objection or motion to strike, is to be
given the same probative force as that to which it would be entitled if it were
competent.”). Moreover, the South Carolina Supreme Court has instructed that implied
consent hearings should be “summary” proceedings “designed to handle license
revocation matters quickly.” State v. Bacote, 331 S.C. 328, 333, 503
S.E.2d 161, 164 (1998). Requiring the State to present evidence on issues that
are neither part of the State’s prima facie case nor raised at the administrative
hearing is inconsistent with that directive.
while it would certainly be unfair to suspend the driver’s license of a
motorist for registering an alcohol concentration above 0.15% when the
DataMaster machine was not working properly, there are sufficient safeguards to
prevent that from occurring. For instance, the court notes that SLED Implied
Consent Policy 8.12.6(A)(2) provides that:
A simulator test, two internal
standard tests, and other operational protocol steps inspect the instrument each
time a subject test is performed. This inspection ensures the
instrument is working properly with every subject test, regardless of any
prior or subsequent status code messages.
added). Additionally, SLED Implied Consent Policy 8.12.6(A)(1) states that:
Any status code message occurring
during the operational protocol will cause the test to abort. The
instrument is programmed to eliminate any chance of an improper test. All
checks, such as internal standard, simulator solution temperature, simulator
solution reading, etc., will pass or the test is aborted at the point of the
added). Moreover, as noted above, if the motorist makes a timely objection to
the introduction of the DataMaster results, then the State will be required to
lay a proper foundation for such evidence by proving, among other things, that the
DataMaster machine was working properly at the time of the test.
of DataMaster Certification
the Department argues that the OMVH hearing officer committed error by
rescinding Respondent’s suspension based upon the State’s failure to present
documentary evidence to show that Trooper Sprouse was DataMaster certified.
Specifically, the Department contends that Trooper Sprouse’s testimony that he
was DataMaster certified was sufficient to establish that as a fact, given that
Respondent presented no evidence to challenge Trooper Sprouse’s testimony. The
court agrees with the Department.
it is true that the court does not always have to accept uncontradicted
evidence as establishing the truth, the same should be accepted unless there is
reason for disbelief.” Elwood Construction Co. v. Richards, 265 S.C.
228, 234, 217 S.E.2d 769, 771 (1975). In this case, Respondent did not present
any evidence to challenge Trooper Sprouse’s testimony, and the OMVH hearing
officer made no finding that Trooper Sprouse’s testimony was not credible.
Moreover, nothing in the Record suggests that Trooper Sprouse was not telling
the truth when he testified that he was DataMaster certified. Therefore, the
court will not affirm the hearing officer’s decision on this basis. See Sitzes v. Director of Revenue, 928 S.W.2d 3, 6 (Mo. Ct. App. 1996) (where
law enforcement officer’s testimony is uncontroverted, judgment of the trial
court reinstating a motorist’s driving privileges cannot be affirmed absent a
finding by the trial court that the officer’s testimony was not reliable); 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).
Finally, the Department argues that the OMVH hearing
officer erred by rescinding Respondent’s suspension on the grounds that Trooper
Sprouse failed to show which implied consent advisement was given to Respondent.
The court agrees.
At the hearing, Trooper Sprouse testified that he read
Respondent “his advisement of implied consent” and that he had Respondent read it
along with him. He further testified that before he read the advisement to
Respondent, he gave Respondent a copy of the advisement form and “told him what
section to read.” Additionally, as noted above, Trooper Sprouse testified that
he was certified to administer DataMaster tests. He also testified that he had
significant experience in administering breath tests.
together, Trooper Sprouse’s testimony constituted prima facie evidence that Trooper
Sprouse provided Respondent with the correct implied consent advisement. See Parker, 271 S.C. at 163-64, 245 S.E.2d at 906 (holding that a breath
test operator’s testimony that he had been certified by the South Carolina Law
Enforcement Division constituted prima facie evidence that the breath test was
administered by a qualified person in the proper manner).
Because there is nothing in the Record that shows that Respondent received the
wrong advisement, the fact that Trooper Sprouse did not specifically testify as
to the name of the implied consent advisement given to Respondent did not
mandate the rescission of Respondent’s suspension. See Felder v.
Johnson, 127 S.C. 215, 217, 121 S.E. 54, 54 (1924) (“In the absence of evidence
to the contrary, courts are bound to presume that public officers have properly
discharged their duties and that their acts are in all respects regular.”); see
also S.C. Dep’t of Motor Vehicles v. Galloway, Op. No. 2009-UP-063
(S.C. Ct. App. filed February 3, 2009) (unpublished decision) (applying Felder in a case similar to the present case). Accordingly, the court will not affirm
the OMVH hearing officer’s decision on this basis.
IS THEREFORE ORDERED that the OMVH’s Final Order and Decision is REVERSED.
IT IS SO ORDERED.
March 16, 2009
Columbia, South Carolina