STATEMENT OF THE CASE
This matter is before the Administrative Law Court (“ALC” or “Court”) pursuant to the appeal of Roswell P. Scott, III from the Order of Dismissal of the South Carolina Office of Motor Vehicles Hearings (OMVH) dated September 9, 2009. Scott appeals the OMVH Hearing Officer’s determination that he waived his right to challenge the suspension of his driver’s license or driving privilege by not appearing at the Administrative Hearing and not notifying the OMVH that he would not appear. The South Carolina Department of Motor Vehicles (“DMV”) seeks to have the OMVH Hearing Officer’s determination affirmed.
On June 9, 2009, Scott was arrested for driving under the influence alcohol, drugs, or a combination of alcohol and drugs. Upon refusal to submit to a breath test, Scott was charged with violating S.C. Code Ann. § 56-5-2950 and was issued a written notice of suspension of his driver’s license. A hearing was held before OMVH Hearing Officer H. Philip Hayes, Jr. on September 2, 2009 pursuant to written notice to the parties. Scott did not appear at the hearing nor was he represented by counsel at the hearing. Scott also failed to notify the OMVH that he would not be appearing. The OMVH Hearing Officer heard and decided the contested case applying Rule 13 of the Rules of Procedure of the OMVH which permits a hearing officer to dismiss a cause adversely to a defaulting party when the party fails to appear or offer testimony/evidence at the hearing to prosecute or defend the case. On September 9, 2009, the OMVH Hearing Officer issued an order sustaining the suspension of Scott’s driver’s license. On August 25, 2009, Scott was found not guilty of Driving Under the Influence. Thereafter, Scott appealed the case on the grounds that his suspension should be revoked because he was acquitted of the offense that would trigger the suspension.
STANDARD OF REVIEW
The OMVH 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. 2007). Therefore, OMVH is an “agency” under the Administrative Procedures Act (APA). See S.C. Code Ann. § 1-23-310(2) (2005). As such, 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). Pursuant to S.C. Code Ann. § 1-23-380(B) (Supp. 2007), administrative law judges must conduct appellate review in the same manner prescribed in Section 1-23-380(A). 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 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).
This court has the duty to examine the procedural method employed at an administrative hearing to ensure that a fair and impartial procedure was used. Ross v. Medical University of South Carolina, 317 S.C. 377, 381, 453 S.E.2d 880, 883 (1994).
The sole issue on appeal in this case is whether Scott’s substantive due process rights were violated when the OMVH Hearing Officer dismissed the case with prejudice due to Scott’s failure to appear at the hearing. Pursuant to Rule 13 of the Rules of Procedure of the OMVH, a case may be dismissed adverse to a defaulting party when the party fails to appear at a hearing without proper consent from the hearing officer. Here, Scott did not appear at the hearing, and he did not notify the OMVH Hearing Officer that he would not appear at the hearing. Accordingly, Scott was in default under the OMVH Rules of Procedure, and he thereby waived his right to challenge the pending suspension of his driver’s license or driving privilege.
Scott further argues on appeal that his suspension should be revoked because he was acquitted of driving under the influence, the offense that would trigger the suspension. The Court disagrees. Contrary to Scott’s assertion, the offense that triggered the suspension was his failure to submit to a breath test, not driving under the influence. Under S.C. Code Ann. § 56-5-2950 (A) (1976), “[a] person who drives a motor vehicle in this State is considered to have given consent to chemical tests of his breath, blood, or urine for the purpose of determining the presence of alcohol or drugs or the combination of alcohol and drugs if arrested for an offense arising out of acts alleged to have been committed while the person was driving a motor vehicle while under the influence of alcohol, drugs, or a combination of alcohol and drugs.” Section 56-5-2951 (A) mandates that the driver’s license of a person who refuses to submit to a test required by Section 56-5-2950 must be suspended. Therefore, the Court finds that Scott’s argument that his suspension should be revoked because he was found not guilty of driving under the influence is meritless.
IT IS THEREFORE ORDERED that the OMVH’s Order of Dismissal is AFFIRMED.
AND IT IS SO ORDERED.
Shirley C. Robinson
Administrative Law Judge
May 27, 2010
Columbia, South Carolina