STATEMENT OF THE CASE
On December 8, 2007, Corporal Vanasec, a certified Radar Operator, observed a vehicle traveling on Cannon Bridge Road in Orangeburg, South Carolina which appeared to be exceeding the 45-mile-per-hour speed limit by approximately 13 miles per hour. He stopped the GMC pickup truck driven by Respondent. Corporal Vanasec noticed a strong odor of alcohol from the truck.
Corporal Vanasec then asked Mr. Hughes to step out of the truck, and gave him the Miranda warnings. He then administered three field sobriety tests—the horizontal gaze nystagnus, the one-legged stand, and the nine-step walk and turn. He then placed Respondent under arrest for DUI, repeated the Miranda warnings, and placed him in the patrol car. An open container of beer was found in Respondent’s truck. At the Orangeburg County Jail, Respondent was again given his Miranda rights prior to testing and again during the video taping. He was also advised of his implied consent rights. Officer Vanasec, a certified DataMaster operator, administered the breath test, on which Respondent registered 0.20 percent. The arresting officer issued a notice of suspension pursuant to Section 56-5-2951(A) of the S. C. Code Ann. (Supp. 2008). Respondent timely requested an administrative Hearing. On January 24, 2008, the Administrative Hearing Officer held a hearing; on February 22, 2008, he issued an Order rescinding Respondent’s suspension. DMY timely appealed that Order. Appellant filed its Brief on July 23, 2008; Respondent did not file a brief.
STANDARD OF REVIEW
The DMVH is authorized by law to determine contested cases arising from the Department. See S.C. Code Ann. § 1-23-660 (Supp. 2008). Therefore, the DMVH is an “agency” under the Administrative Procedures Act (“APA”). See S.C. Code Ann. § 1-23-310(2) (2008). Thus, the APA’s standard of review governs appeals from decisions of the DMVH. See S.C. Code Ann. § 1-23-380 (Supp. 2006); 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 in S.C. Code Ann. §1-23-380(A)(5) (Supp. 2008). This section provides:
The court shall 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. 2008).
In Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304, the S. C. Supreme Court set out the standard of 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 there was no evidence to show that the arresting officer followed all procedures required by SLED in accordance with his training?
It is uncontroverted that Corporal Vanasec is a certified DataMaster operator, and that the machine was working properly. However, Respondent maintains that the Hearing Officer properly rescinded his suspension, because “…there was no evidence or testimony to show that he [the officer] followed all procedures in accordance with his training.” Respondent made a “Motion to Rescind” at the close of the hearing on the basis that (1) there was no testimony as to the content of the Miranda warnings; and (2) Respondent was not told that he was being videotaped during either the field sobriety test or during the DataMaster test.
Respondent’s counsel did not object contemporaneously when Corporal Vanasec testified that he gave Respondent repeated Miranda warnings; he did not make a Motion to Strike, or make a Motion for Mistrial on the basis that the Miranda warnings did not contain all the requisite warnings. It is axiomatic that in order to preserve an issue for appellate review, a party must make a contemporaneous objection, and an issue which is not properly preserved cannot be raised for the first time on appeal. State v. Hoffman, 312 S.C. 386, 393, 440 S.E.2d 869, 873 (1994). An issue must be both raised to and ruled upon by the trial judge to be preserved for appellate review. State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 693 (2003).
There is no evidence in the record that there was any lack of compliance with SLED guidelines. Section 56-5-2950(e) of the 1076 S. C. Code Ann. (Supp. 2008) provides:
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 of any test results, if the trial judge or
hearing officer finds that such failure materially affected the
accuracy or reliability of the test results or the fairness of the testing
procedure. [emphasis added.]
Appellant offered no evidence that any alleged failure to tell Respondent he was being videotaped affected the accuracy, reliability or fairness of the test. The Hearing Officer did not rule on such a Motion. An issue is not preserved where the trial court does not explicitly rule on an argument and the Appellant does not make a post-trial Motion to Alter or Amend the judgment. SCRCP Rule 59(e). Jones v. State Farm Mutual Automobile Insurance Co., 364 S.C. 222, 612 S.E.2d 719 (Ct. App. 2005.
Thus, suspensions under Section 56-5-2951 cannot be rescinded simply because an arresting officer failed to comply with a SLED policy unless the motorist makes a motion during the hearing requesting the DMVH 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. Due process requires that such a motion be timely made so that the Department is given the opportunity to respond to the motion with evidence that either shows that the SLED policy was followed or that the violation of the SLED policy did not materially affect the accuracy or reliability of the tests results or the fairness of the testing procedure. See Murdock v. Murdock, 338 S.C. 322, 333, 526 S.E.2d 241, 248 (Ct. App. 1999) (“Procedural due process requires that a litigant be placed on notice of the issues which the court is to consider.”).
The findings of the Hearing Officer were clearly erroneous in view of the reliable, probative, and substantial evidence produced at the hearing. THEREFORE,
IT IS ORDERED THAT THE ORDER OF THE HEARING OFFICER IS
REVERSED, AND THE SUSPENSION OF RESPONDENT’S LICENSE IS
AND IT IS SO ORDERED.
Carolyn C. Matthews
Administrative Law Judge
June 4, 2009
Columbia, South Carolina