Thursday, April 24, 2014

SC Administrative Law Court Decisions

CAPTION:
SCDMV, et al vs. Marshall Heyward

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Petitioners:
South Carolina Department of Motor Vehicles and South Carolina Department of Public Safety

Respondents:
Marshall Heyward
 
DOCKET NUMBER:
07-ALJ-21-0171-AP

APPEARANCES:
n/a
 

ORDERS:

ORDER

STATEMENT 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Carolina Office of Motor Vehicle Hearings (OMVH) issued on April 3, 2007.[1] The OMVH’s Final Order and Decision, which rescinded the administrative suspension of Respondent’s driver’s license, was issued following a hearing held pursuant to S.C. Code Ann.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,[2] the OMVH’s Final Order and Decision is reversed.

BACKGROUND

On the 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.

After 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).

Respondent 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.

ISSUES ON APPEAL

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

The OMVH 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 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) (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).

DISCUSSION

Probable Cause

The Department argues that the OMVH hearing officer erred by determining that Trooper Sprouse lacked probable cause to arrest Respondent for DUI. The court agrees.[3]

Probable 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.

Here, 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.

Issues Not Raised at Hearing

Next, 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.

Checking 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 § 56-5-2950(e) (2006).[4]

Thus, 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.

Here, 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.

DataMaster Machine

Unlike 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).[5] 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).

In 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 working properly.”

Interestingly, 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.

Although 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.[6] 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).

Like 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.”

Under 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.

Furthermore, 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.

(emphases 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 failed check.

(emphasis 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.

Evidence of DataMaster Certification

Next, 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.

“[W]hile 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).

Implied Consent Advisement

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.

Taken 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).[7] 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.

ORDER

IT IS THEREFORE ORDERED that the OMVH’s Final Order and Decision is REVERSED.

AND IT IS SO ORDERED.

______________________________

Carolyn C. Matthews

Administrative Law Judge

March 16, 2009

Columbia, South Carolina



[1] Pursuant to 2008 S.C. Act No. 279, the name of the Division of Motor Vehicle Hearings was changed to the Office of Motor Vehicle Hearings effective October 1, 2008.

[2] Respondent failed to submit a brief for this appeal. While Respondent was not required to file a brief, the court has been forced to make its determination without the benefit of Respondent’s input.

[3] It is not entirely clear that the hearing officer concluded that Trooper Sprouse lacked probable cause to arrest Respondent for DUI. The hearing officer did not expressly make that conclusion in her order. However, she did state that “it is troubling that there was no testimony concerning the attributes or behavior indicative of a person under the influence of alcohol.” In an abundance of caution, the court has chosen to address this issue.

[4] This subsection was slightly amended and moved to subjection (J) of Section 56-5-2950 effective February 10, 2009. See S.C. Code Ann. § 56-5-2950(J) (Supp. 2008).

[5] Like Section 56-5-2951(F), Section 56-1-286 provides that the scope of the administrative hearing includes the issue of whether “the machine was operating properly.” See S.C. Code Ann. § 56-1-286(O)(4)(d) (2006). Nevertheless, in Cuccia, the Court of Appeals did not include the working order of the DataMaster machine in its list of elements required for suspension under Section 56-1-286.

[6] While decisions of the Missouri Supreme Court are not binding on this court, they do constitute persuasive authority.

[7] As SLED policy makes clear, one portion of the DataMaster test administration process is the provision of the implied consent advisement. See SLED Implied Consent Policy 8.12.5(C)(1).


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