This matter is an appeal by Appellant Nicholas R. McGill from
an Order Denying Motion to Reconsider issued by the South Carolina Office of
Motor Vehicle Hearings (OMVH) on March 9, 2007. The Order Denying Motion to Reconsider was issued after
Appellant moved for reconsideration of an OMVH order dismissing Appellant’s
implied consent case pursuant to ALC Rule 23 due to Appellant’s failure to
appear at the OMVH hearing. Appellant contends that the case should have been
dismissed in favor of Appellant, rather than the State, since all of the parties
failed to appear at the OMVH hearing. 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 the briefs, the OMVH’s Order Denying Motion to
Reconsider is affirmed.
March 31, 2006, Officer J.P. Smith of the Columbia Police Department arrested Appellant
for driving under the influence (DUI) and transported him to a detention center
for a DataMaster test. Appellant’s driver’s license was subsequently suspended
pursuant to S.C. Code Ann. § 56-5-2951(A) for refusing to submit to the test.
to S.C. Code Ann. § 56-5-2951(B)(2), Appellant filed a request with the OMVH for
an administrative hearing to challenge his suspension. The OMVH scheduled
Appellant’s hearing for June 28, 2006. On the date of the hearing, none of the
parties appeared. As a result, on July 11, 2006, Administrative Hearing
Officer Tracy Holland (AHO Holland) issued an Order of Dismissal under ALC Rule
23 dismissing the case adverse to Appellant.
Appellant moved to reopen the case on the grounds that neither he nor his
attorney received notice of the hearing. On December 11, 2006, AHO Holland issued
an order granting Appellant’s motion. On December 12, 2006, the OMVH issued a
Notice of Hearing notifying the parties that a new hearing would be held on January
16, 2007 before Administrative Hearing Officer Robert Harley (AHO Harley). Once
again, on the date of the rescheduled hearing, none of the parties appeared.
On January 18, 2007, AHO Harley issued an Order of Dismissal dismissing the
case adverse to Appellant pursuant to ALC Rule 23.
On January 29, 2007, Appellant filed a Motion to
Reconsider with the OMVH. Appellant’s sole argument was that the case should
have been dismissed in favor of Appellant since the State, which bears the
burden of proof in implied consent cases, did not appear at the hearing. On
March 9, 2007, AHO Harley denied Appellant’s Motion to Reconsider. Appellant
Did AHO Harley err by denying Appellant’s
Motion to Reconsider?
STANDARD OF REVIEW
is authorized by law to determine contested cases arising from the Department
of Motor Vehicles (DMV). 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;
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).
Carolina’s Implied Consent Laws
license to operate a motor vehicle upon the public highways of this State is
not a right, but a privilege that is subject to reasonable regulations in the
interests of public safety and welfare. State v. Newton, 274 S.C. 287, 294,
262 S.E.2d 906, 910 (1980). This privilege is always subject to revocation or
suspension for any cause relating to public safety. S.C. State Hwy. Dep’t v. Harbin, 226 S.C. 585, 595, 86 S.E.2d 466, 470 (1955). However, it
cannot be revoked arbitrarily or capriciously. Id.
with these principles, the General Assembly enacted S.C. Code Ann. § 56-5-2950 and
S.C. Code Ann. § 56-5-2951. Section 56-5-2950 declares that a motorist
arrested for DUI implicitly consents to a chemical test of his breath, blood or
urine for the purpose of determining the presence of alcohol or drugs, and it
requires that, at the direction of the arresting officer, a breath test be
administered to a motorist so arrested. S.C. Code Ann. § 56-5-2950(a).
Section 56-5-2951, in turn, mandates that the driver’s license of a motorist
who refuses to submit to a test required by Section 56-5-2950 be immediately suspended. See S.C. Code Ann. § 56-5-2951(A). Section 56-5-2951
nevertheless grants motorists the right to request an administrative hearing to
challenge such suspensions. See S.C. Code Ann. § 56-5-2951(B)(2). If
the motorist does not request an administrative hearing, he waives his right to
a hearing, and his suspension must continue for the period set forth in Section
56-5-2951(I). See S.C. Code Ann. § 56-5-2951(D).
Motion to Reconsider
argues that AHO Harley erred by denying his Motion to Reconsider since the
State also defaulted by failing to appear at the OMVH hearing. According to
Appellant, the case should have been dismissed adverse to the State given that the
State, which bears the burden of proof in implied consent matters, presented no
evidence at the hearing. The court disagrees.
Rule 23, which was applicable to the OMVH proceeding under S.C. Code Ann. §
1-23-660 (Supp. 2006), provides in pertinent part:
The administrative law judge may
dismiss a contested case or dispose of a contested case adverse to the
defaulting party. A default occurs when a party fails to plead or otherwise
prosecute or defend, fails to appear at a hearing without the proper
consent of the judge or fails to comply with any interlocutory order of
the administrative law judge.
added). Here, it is undisputed that Appellant failed to appear at the
administrative hearing without the proper consent of AHO Harley. Thus, AHO
Harley clearly had the authority, under ALC Rule 23, to dismiss the case
adverse to Appellant. Importantly, unlike its treatment of the DMV, the
General Assembly has not carved out an exception to ALC Rule 23 for motorists.
Appellant essentially contends that the State is required to go forward with
its case even in situations where the motorist does not appear at the administrative
hearing. The court disagrees. ALC Rule 23 does not contain or reference such
a requirement, and Appellant has not cited any legal authority (other than
authority regarding the burden of proof in implied consent cases) to support
his argument. Moreover, while it is true that ALC Rule 29(B) does place the
burden of proof on the State in implied consent cases, nothing in the ALC Rules suggest that ALC Rule 29(B) was intended to limit a hearing
officer’s authority under ALC Rule 23 to dismiss a case adverse to a defaulting
in light of the fact that the State is not required to present a prima facie
case for suspension in situations where the motorist does not request an
administrative hearing, the court sees no reason why the State should be required to do so in cases where
the motorist does not appear at the hearing. In both situations, it is clear
that the motorist is not going to present a defense. Additionally, the
motorist’s ability to appeal the hearing officer’s decision on the merits of
the State’s case would be severely limited due to the motorist’s failure to
appear and raise issues at the administrative hearing. Thus, imposing such a
requirement would undoubtedly result in a waste of judicial resources in many
while Appellant argues that the hearing notice did not warn him of the
consequences of failing to appear at the hearing, the ALC Rules certainly did
so. Moreover, it is rather disingenuous for Appellant to imply that he was not
aware that his failure to appear at the hearing would lead to dismissal, since
this case was previously dismissed on that very basis.
IS THEREFORE ORDERED that the OMVH’s Order Denying Motion to Reconsider is AFFIRMED.
IS SO ORDERED.
March 16, 2009
Columbia, South Carolina