Saturday, November 17, 2018

SC Administrative Law Court Decisions

SCDMV vs. David B. Clyburn

South Carolina Department of Motor Vehicles

South Carolina Department of Motor Vehicles

David B. Clyburn





This matter is an appeal by the South Carolina Department of Motor Vehicles (Department) from a final decision of the South Carolina Department of Motor Vehicle Hearings (DMVH). The Administrative Law Court (ALC) has jurisdiction to hear this matter pursuant to S.C. Code Ann. § 1-23-660, as amended by S.C. Act No. 128 of 2005, § 22.


This matter is before the Administrative Law Court (ALC) pursuant to the appeal of the South Carolina Department of Motor Vehicles (Department) of the Order of Dismissal of the South Carolina Division of Motor Vehicle Hearings (DMVH), dated February 9, 2006. The DMVH’s Order of Dismissal was issued in connection with an administrative hearing that was held pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (Supp. 2004). Under Section 56-5-2951(B)(2), a motorist whose license is automatically suspended for either refusing to submit to testing in violation of South Carolina’s implied consent law or driving with an alcohol concentration of 0.15% or more may request an administrative hearing to challenge the suspension. Importantly, prior to January 1, 2006, the Department’s Office of Administrative Hearings (OAH) was intricately involved in both the adjudication, as well as the prosecution, of matters relating to the administrative suspension of a motorist’s driver’s license. For instance, OAH hearing officers conducted hearings relating to these matters, and OAH staff members notified law enforcement of such hearings. However, in the summer of 2005, Act No. 128, § 22, 2005 S.C. Acts 1503 (Act) was signed by the Governor and became effective. Pursuant to the Act, as of January 1, 2006, “the duties, functions, and responsibilities of all hearing officers and associated staff” of the Department were transferred to the DMVH.


On December 18, 2005, David Clyburn (Respondent) was arrested for driving a motor vehicle while under the influence of alcohol. Respondent was issued a written Notice of Suspension based on his alleged refusal to submit to a breath test as required under South Carolina’s implied consent law, S.C. Code Ann. § 56-5-2950 (Supp. 2004). On January 13, 2006, pursuant to Section 56-5-2951(B)(2), Respondent filed a request for an administrative hearing to challenge the suspension. Respondent prepared this request by completing a form contained on the reverse side of his Notice of Suspension. Pursuant to the directions contained on the form, Respondent sent his request to the OAH. From there, it was forwarded to the DMVH.

On January 17, 2006, the DMVH issued a Notice of Hearing, which stated that Respondent’s hearing would be held on February 8, 2006 at the Camden DMV. Both the Department and Respondent were served with copies of this Notice of Hearing. Subsequently, on February 7, 2006, the Department filed a petition for continuance with the DMVH, in which it requested that the hearing be continued until at least thirty (30) days after the Department “was notified”- presumably by the DMVH - of information relating to the suspension of Respondent’s license and the administrative hearing to be held regarding such suspension.[1] Without first ruling on the Department’s petition for a continuance, the DMVH hearing officer held the hearing, as scheduled, on February 8, 2006. Because the arresting officer did not attend the hearing, the DMVH hearing officer entered an Order of Dismissal against the Department pursuant to ALC Rule 23.

On February 21, 2006, the DMVH hearing officer issued an order denying the Department’s February 7th petition for a continuance. In his order, the hearing officer concluded that “the Department is already in possession of the information which is the basis for its request for a continuance.” To support this conclusion, the hearing officer found that law enforcement provides a copy of the Notice of Suspension to the Department, and that such document sets forth the motorist’s name, address and driver’s license number, the reason for the suspension, and the names of the arresting officer, the breath test operator and their respective agencies. Moreover, the hearing officer also found that “[t]he DMVH on a daily basis, electronically transmits the front and reverse sides of the [Notice of Suspension] form . . . to the Department’s Driver Records division.” As noted above, the reverse side of the Notice of Suspension form contains the motorist’s hearing request. Finally, the hearing officer asserted that the Department’s own computer database contains complete driver records, including all identifying information for all violations committed by an individual. Therefore, the hearing officer concluded that the Department was sufficiently informed of the nature of the case to enable it to proceed with the hearing.


Did the DMVH hearing officer err in denying the Department’s petition for a continuance?


The Department contends that the hearing officer’s findings are “incorrect” by arguing that, “in a large number of cases” it does not receive from the DMVH a copy of the Notice of Suspension or a copy of the hearing request. A motion for a continuance is addressed to the sound discretion of the trial judge, and his ruling will not be disturbed unless it clearly appears that there was an abuse of discretion to the prejudice of the appellant. Williams v. Bordon’s, Inc., 274 S.C. 275, 279, 262 S.E.2d 881, 883 (1980). Additionally, Article I of the South Carolina Constitution provides that the Petitioners "shall not be finally bound by a judicial or quasi-judicial decision of an administrative agency affecting private rights except on due notice and an opportunity to be heard...." S.C. Const. art. 1, § 22. Accordingly, in making an assessment of whether or not to grant a continuance the hearing officer must seek to insure the litigants receive “due process.”

Regrettably, it is impossible for this Court to properly evaluate the accuracy of the hearing officer’s findings. His stated reasons for denying the continuance are simply not corroborated by any evidence in the record or by a lawful judicial notice determination. In other words, the record does not support the hearing officer’s findings regarding law enforcement or DMVH’s general procedure concerning whether or not the Department was supplied with the documents it needed to adequately prosecute this case.

Moreover, whether or not the DMVH typically sends the Department copies of the Notice of Suspension and the hearing request is not relevant here; what is relevant is whether or not the Department was sent copies of the Notice of Suspension and hearing request in this case. The Department maintains, in its brief to this Court, that it did not actually receive the information contained in its continuance request. Without question, it is crucial for the Department to receive copies of the Notice of Suspension and the hearing request. For instance, the Notice of Suspension contains essential information such as the reason why the motorist’s license is being suspended,[2] as well as the names of the arresting officer, the breath test operator, and their respective employers. Similarly, the hearing request contains critical information such as the date on which the hearing was requested[3] and contact information for the motorist’s attorney.

Here, despite the clear importance of the Notice of Suspension and the hearing request to the Department, the hearing officer simply denied the Department’s petition for a continuance without actually determining if the Department had in fact received these documents. Instead, the hearing officer simply recited what the DMVH’s general procedure was with respect to sending the Department copies of these documents. The Department was thus denied the opportunity to defend its request for a continuance. In addition, the Department’s request for continuance was made after the process for conducting administrative hearings for summary suspensions under Section 56-5-2951 had recently changed. It appears that at least some of the OAH staff members who had been notifying law enforcement of these hearings moved to the DMVH on January 1, 2006.[4] These facts warranted more circumspection by the hearing officer. Furthermore, the Department was undoubtedly prejudiced by the hearing officer’s denial of its petition, since it was unable to notify law enforcement of the hearing and, thus, had the case dismissed against it. See, Palmetto Alliance, Inc. v. S. C. Public Service Comm'n., 282 S.C. 430, 319 S.E.2d 695 (1984) (To prove the denial of due process, a party must show that it has been substantially prejudiced by the administrative process). For these reasons, the hearing officer clearly abused his discretion in denying the Department’s continuance petition.

In conclusion, regardless of DMVH’s general procedure, if the Department requests a continuance because it claims that it does not have the information contained in the Notice of Suspension or the hearing request, the DMVH hearing officers should not deny the continuance request without first confirming that the Department received those documents. Although I have found for the Department in this case, I advise the Department to treat the motorist, as well as the DMVH, with greater respect in the future. For instance, the Department should not inconvenience the motorist by waiting until the day before the hearing to ask for a continuance when it does not receive the information that it needs from the DMVH. The legislature has made it clear that these types of hearings should occur promptly. See S.C. Code Ann. § 56-5-2951(F) (Supp. 2004) (generally requiring that an administrative hearing be held within thirty (30) days after the hearing request is received). Moreover, the ALC Rules[5] make it clear that motions for continuances should not, except in rare circumstances, be filed at the last moment. See, e.g., ALC Rule 19(A) (“[a]ll motions pertaining to the hearing shall be filed not later than ten (10) days before the hearing date, unless otherwise ordered by the administrative law judge”);[6] ALC Rule 19(B) (generally requiring notice to be given to all parties before a continuance motion is made or granted). In addition, the Department should only request information from the DMVH that it cannot obtain on its own. The employees of the DMVH are no longer affiliated with the Department and, therefore, they should not be asked to perform information-gathering chores for the Department. Although the Department’s conduct is excusable in this case due to the newness of this process, such conduct will be much less forgivable going forward.


IT IS THEREFORE ORDERED that the DMVH’s Order of Dismissal is reversed and the case is remanded to the DMVH for a new hearing.



Ralph King Anderson, III

Administrative Law Judge

June 20, 2006

Columbia, South Carolina

[1] Specifically, the information described in the Department’s continuance petition consisted of the following: (a) the name, address, telephone number, and facsimile number of the Respondent’s attorney, (b) the type of hearing being held; (c) a copy of the document by which the hearing was requested; (d) the name of the arresting officer and the law enforcement agency for which such officer worked; (e) the name of the breath test operator (if applicable) and the law enforcement agency for which such officer worked; (f) the name, telephone number and facsimile number of the central contact at the applicable law enforcement agency to whom the former OAH provided information about upcoming hearings; (g) accident report number (if applicable); and (h) the number of the statute by which the Respondent’s license was being suspended.

[2] From this information, one can deduce the type of hearing to be held and the statute by which the motorist’s license is being suspended.

[3] Notably, under Section 56-5-2951, a motorist must request the hearing within thirty (30) days of issuance of the Notice of Suspension. If the motorist does not request an administrative hearing, he waives his right to the hearing. Therefore, because of this waiver issue, the Department must be notified of the date on which the motorist requested the hearing. Otherwise, the Department might not be able to utilize all of the valid arguments available to it at the hearing.

[4] The Act provides that: “The hearing officers and staff positions [of the Department of Motor Vehicles], together with the appropriations relating to these positions, are transferred to the Division of Motor Vehicle Hearings of the Administrative Law Court on January 1, 2006.”

[5] The Act requires DMVH hearing officers to conduct their hearings in accordance with ALC Rules.

[6] Here, the DMVH hearing officer chose to accept the Department’s continuance petition, despite the fact that it was untimely filed.