STATEMENT OF THE CASE
On May 23, 2008, Officer Jason Brandon of the Mount Pleasant Police Department observed a gray Jeep Liberty exiting Patriot’s Point Boulevard on Coleman Boulevard in Mount Pleasant, South Carolina. When the Jeep made a wrong-way turn into a turn lane, he initiated a traffic stop. He attempted to get Appellant, the driver, to stop in the center median, but the vehicle continued as if going onto the bridge, and stopped in the lane of traffic on the entrance ramp to the bridge.
Officer Brandon observed that Appellant had bloodshot eyes and smelled like alcohol. Appellant confirmed that she had been drinking at a party at Patriot’s Point. Officer Brandon then gave Appellant her Miranda warnings. When she performed poorly on the field sobriety tests, she was arrested for Driving under the Influence and again given the Miranda warnings. She was transported to the Police Department for a DataMaster test. Officer Eckert, who was called to the scene, observed several open alcohol containers inside Appellant’s vehicle.
At the Department, Officer Eckert was the certified DataMaster officer. He activated the camera, read Appellant the Miranda rights for the third time, discussed the implied consent advisement, and gave Appellant a copy to sign. He then observed her for the twenty-minute period. Appellant had a 0.19% blood alcohol content. She was arrested for DUI.
Appellant requested a hearing to review the suspension; a hearing was held on July 1, 2008. Appellant, who was represented by Counsel, did not testify at the hearing or offer any other evidence. On July 9, 2008, the Hearing Officer issued a Final Order sustaining the suspension. Appellant timely filed this appeal.
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. 2007). Therefore, the OMVH is an “agency” under the Administrative Procedures Act (“APA”). See S.C. Code Ann. § 1-23-310(2) (2005). Thus, the APA’s standard of review governs appeals from decisions of the OMVH. See S.C. Code Ann. § 1-23-380 (Supp. 2007); 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(A)(5) (Supp. 2007). 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(A)(5) (Supp. 2007).
In Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304, the S. C. Supreme Court set out the standard or evidentiary review under the Administrative Procedures Act:
The Court shall not substitute its judgment for that of the agency
as to the weight of evidence on questions of fact. In addition, the
statute states the decision under appeal must be ‘clearly erroneous’
in view of the substantial evidence on the whole record.
We, therefore, caution the Bench and Bar as to the limitations
Upon the application of the ‘substantial evidence’ rules in reviewing
the decision of administrative agencies. As stated in Dickinson-
Tidewater, Inc. v. Supervisor of Assess., 273 Md. 245, 329 A.2d 18, 25,
the substantial evidence test ‘need not and must not be either judicial
fact-finding or substitution of judicial judgment for agency judgment’,
and a judgment upon which reasonable men might differ will not be
A decision by an administrative agency must be sustained if supported by substantial evidence. Hamm v. American Telephone and Telegraph Co., 302 S.C. 210, 394 S.E.2d 842 (1990); Lark v. Bi-Lo, Inc., supra.
On review of the Orders of an administrative agency, the burden is on the Appellant to show that the order of the agency is without evidentiary support or that it is arbitrary and capricious as a matter of law.
Did the Hearing Officer err by finding that the Mt. Pleasant Police Officers met their
Burden of Proof?
Appellant contends the officers did not meet their burden of proof because of Officer’s Eckert’s failure to mention that he checked Appellant’s mouth pursuant to SLED’s procedures.
Officer Eckert testified that he is certified to offer DataMaster tests, with certification number DM 013288. Under State v. Parker, 271 S.C. 159, 245 S.E.2d 904,906 (1978), the Breath Test Operator’s testimony that he has been certified by SLED constitutes prima facie evidence that the test was administered by a qualified person in the proper manner.
Moreover, Officer Eckert testified that in the DataMaster room he advised Appellant that she was being videotaped and went over the advisement of implied consent rights. It is reasonable to infer from that testimony that “going over” the advisement included going over the procedures contained in the advisement, including checking Appellant’s mouth.
The DataMaster video is properly part of the record. It reveals that Appellant subpoenaed the DataMaster video, and that it was viewed on line. The videotape clearly shows that Appellant’s mouth was checked. Appellant did not move to have the video excluded ; thus, she cannot now complain that the contents of that video were considered.
Did the OMVH Hearing Officer err by finding that Appellant Burris did not make a motion regarding SLED policies and procedures?
During Closing Argument, counsel for Appellant made a Motion to Dismiss and Rescind the Suspension based on three grounds: (1) that there was not an “articulable violation of the traffic law”; (2) lack of probable cause to arrest; and (3) that the Breath Test was compromised. On appeal, Appellant does not argue either the first or second issues. Thus, they are deemed abandoned. Issues that are neither raised to nor ruled upon by the trial court are not preserved for appellate review. Flowers v. S.C. Dep’t of Highways and Pub. Transp., 309 S.C. 76, 79, 419 S.E.2d 832, 834 (Ct. App. 1992).
Moreover, Appellant’s Motion was actually in the nature of a Motion for Directed Verdict at the close of the case. There was no contemporaneous objection to the Officer’s testimony, and no Motion for Mistrial on the basis of the alleged erroneous admission of the result of the Breath Test.
IT IS ORDERED
AND IT IS SO ORDERED.
Carolyn C. Matthews
Administrative Law Judge
May 21, 2007
Columbia, South Carolina