Friday, June 22, 2018

SC Administrative Law Court Decisions

SCDMV vs. David E. Jones

South Carolina Department of Motor Vehicles

South Carolina Department of Motor Vehicles

David E. Jones





This matter is an appeal by the South Carolina Department of Motor Vehicles (Department) from an Order of Dismissal of the South Carolina Division of Motor Vehicle Hearings (DMVH). The DMVH’s Order of Dismissal was issued in connection with an administrative hearing that it held pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (2006). The Administrative Law Court (ALC) has jurisdiction to hear this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2005). Upon consideration of the briefs, this case is dismissed as set forth below.


“In South Carolina, operating a motor vehicle is a privilege of the State, not a right of the individual.” Taylor v. South Carolina Dept. of Motor Vehicles, 368 S.C. 33, 36, 627 S.E.2d 751, 753 (Ct. App. 2006). Consistent with this principle, S.C. Code Ann. § 56-5-2950(a) (2006) provides that:

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. A breath test must be administered at the direction of a law enforcement officer who has arrested a person for driving a motor vehicle in this State while under the influence of alcohol, drugs, or a combination of alcohol and drugs.

Under S.C. Code Ann. § 56-5-2951(A) (2006), the license of a motorist who refuses to submit to the above test or who registers an alcohol concentration of 0.15% or more on such test must be immediately suspended. However, under Section 56-5-2951(B)(2), the motorist may request an administrative hearing to challenge such a suspension.

Prior to January 1, 2006, the Department’s Office of Administrative Hearings (OAH) was intricately involved in the adjudication, as well as the prosecution, of matters relating to the suspension of a motorist’s driver’s license under Section 56-5-2951. 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, S.C. Code Ann. § 1-23-660 was extensively amended by Act No. 128, § 22, 2005 S.C. Acts 1503. Pursuant to Act No. 128, the DMVH was created as a division of the ALC and, 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. See S.C. Code Ann. § 1-23-660 (Supp. 2005). Importantly, the amended Section 1-23-660 requires DMVH hearing officers to conduct their hearings in accordance with the Administrative Procedures Act (APA) and the ALC’s rules of procedure. Id.


On December 28, 2005, David Jones (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 Section 56-5-2950(a). On January 9, 2006, pursuant to Section 56-5-2951(B)(2), Respondent filed a request for an administrative hearing to challenge the suspension. The following day, 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. The DMVH hearing officer held the hearing, as scheduled, on February 8, 2006. Because neither the Department, nor the arresting officer, attended the hearing, the DMVH hearing officer entered an Order of Dismissal against the Department pursuant to ALC Rule 23.


1.      Does the caption accurately reflect the nature of this action?

2.      Did the Department of Motor Vehicle Hearings wrongfully fail to notify law enforcement of the hearing?


The DMVH is authorized by law to determine contested case hearings of the Department of Motor Vehicles. See S.C. Code Ann. § 1-23-660, as amended by S.C. Act No. 128 of 2005, § 22. Therefore, appeals from the decisions of the DMVH are properly decided under the Administrative Procedures Act’s (APA) standard of review. In fact, Section 1-23-660 now provides that all appeals from decisions of the DMVH hearing officers must be taken to the ALC pursuant to the ALC's appellate rules of procedure. Thus, the Administrative Law Judge sits in an appellate capacity under the Administrative Procedures Act (APA) rather than as an independent finder of fact. In South Carolina, the provisions of the APA -- specifically Section 1-23-380(A)(6) -- govern the circumstances in which an appellate body may review an agency decision. That section states:

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(A)(6) (2005).

A decision is supported by “substantial evidence” when the record as a whole allows reasonable minds to reach the same conclusion reached by the agency. Bilton v. Best Western Royal Motor Lodge, 282 S.C. 634, 321 S.E.2d 63 (Ct. App. 1984). The well-settled case law in this state has also interpreted the “substantial evidence” rule to mean that a decision will not be set aside simply because reasonable minds may differ on the judgment. Lark v. Bi-Lo, 276 S.C.130, 276 S.E.2d 304 (1981). The fact that the record, when considered as a whole, presents the possibility of drawing two inconsistent conclusions from the evidence does not prevent the agency's findings from being supported by substantial evidence. Waters v. South Carolina Land Resources Conservation Comm’n, 321 S.C. 219, 467 S.E.2d 913 (1996); Grant v. South Carolina Coastal Council, 319 S.C. 348, 461 S.E.2d 388 (1995).

In applying the substantial evidence rule, the factual findings of the administrative agency are presumed to be correct. Rodney v. Michelin Tire Co., 320 S.C. 515, 466 S.E.2d 357 (1996), citing Kearse v. State Health and Human Services Finance Comm'n, 318 S.C. 198, 456 S.E.2d 892 (1995). Furthermore, the reviewing court is prohibited from substituting its judgment for that of the agency as to the weight of the evidence on questions of fact. Grant v. South Carolina Coastal Council, 319 S.C. 348, 461 S.E.2d 388 (1995), citing Gibson v. Florence Country Club, 282 S.C. 384, 318 S.E.2d 365 (1984). Finally, the party challenging an agency action has the burden of proving convincingly that the agency's decision is unsupported by substantial evidence. Waters, supra, citing Hamm v. AT&T, 302 S.C. 210, 394 S.E.2d 842 (1994).


Amended Caption

The Department argues that the hearing officer incorrectly listed the Department as the “Petitioner” in the caption of his order. The Department argues that, since the motorist requested the administrative hearing, the motorist is the “Petitioner.” Notably, this issue is fundamentally tied to the question of which party bears the burden of proof in this case. In enforcement actions, to clarify that the burden of proof lies with the agency, the caption is drafted to reflect that the agency is the “Petitioner” and the party subject to the enforcement is the “Respondent,” despite the fact that it was not the agency that filed the request for a contested case hearing. See Randy R. Lowell and Stephen P. Bates, South Carolina Administrative Practice and Procedure 201 (2004). Thus, if the burden of proof in this case lies with the Department, then it was proper for the hearing officer to list the Department as the “Petitioner” in the caption of his order.

Interestingly, in its Notice of Appeal, the Department claimed that the motorist, and not the Department, bore the burden of proof in this case. However, in its brief, the Department dropped this claim, and simply argued that the caption should be amended to reflect the proper standing of the parties. Nevertheless, the caption issue cannot be resolved without first determining which party bears the burden of proof in this case.

Generally speaking, South Carolina law requires that the party that maintains “the affirmative of the issue” bear the burden of proof. See Carter v. Columbia and Greenville R.R. Co., 1883 WL 4856, at * 6 (S.C. 1883). It could be argued that, because Section 56-5-2951(A) mandates that the Department automatically suspend a motorist’s driver’s license when the motorist either refuses to submit to a blood, breath or urine test or has an alcohol concentration of more than 0.15%, the motorist is, in actuality, the party “maintaining the affirmative of the issue” and, therefore, the burden of proof should be on the motorist. Some state courts have come to such a conclusion. For instance, in Jess v. State, Dept. of Justice, Motor Vehicle Div., 841 P.2d 1137 (Mont. 1992) overruled on other grounds by Bush v. Mont. Dept. of Justice, Motor Vehicle Div., 968 P.2d 716 (Mont. 1998), the Montana Supreme Court held in an action for reinstatement of a summarily suspended driver's license pursuant to Montana’s implied consent law, that the burden was on the petitioning motorist to prove that the suspension of the license was invalid.[2] In Jess, the statute providing for the review of suspended driver's licenses did not state who had the burden of proof. Nevertheless, the Court recognized that under Montana’s implied consent law there was a presumption of correctness to the state’s action of suspension or revocation of a driver's license until otherwise shown to be improper. Therefore, the Court held that the “burden of proof falls upon the appellant to prove the invalidity of the State's action, rather than require the State to justify its act of revocation.” 841 P.2d at 1140.

However, in South Carolina there is no such presumption. In fact, S.C. Code Ann. §56-5-2950 (e) (2006) sets forth that if an officer fails to follow the policies, procedures, or regulations promulgated by SLED, the result of any tests shall be excluded if the “hearing officer finds that such failure materially affected the accuracy or reliability of the tests results or the fairness of the testing procedure.”

Additionally, in People v. Orth, 530 N.E.2d 210 (1988), the Illinois Supreme Court considered whether placing the burden of proof upon the motorist whose license was summarily suspended violated due process of law. In making its determination, the Court considered:

(1) the significance of the private interest which will be affected by the official action, (2) the risk of the erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional or substitute procedural safeguards, and (3) the significance of the State interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural safeguards would entail.

530 N.E.2d at 214. After considering those factors, the Court held that placing the burden of proof upon the suspended motorist did not violate his due process rights. Id. In reaching its decision, the Orth Court held that “however, our conclusion is heavily influenced by our holding later in this opinion that the State will have the burden of showing the reliability of test results if the motorist first makes a prima facie showing that the results were unreliable.” See also People v. Ullrich, 767 N.E.2d 411 (Ill. App. Ct. 2002).[3]

To the contrary, the ALC has consistently held that, in enforcement actions, the agency is the moving party, and, therefore, the agency bears the burden of proof. In fact, to clarify that state agencies bear the burden of proof in enforcement actions, the ALC amended its rules of procedure in 1998 to add ALC Rule 29(B), which states: “In matters involving the assessment of civil penalties, the imposition of sanctions, or the enforcement of administrative orders, the agency shall have the burden of proof.” (emphasis added.)[4] Thus, because the Department is actively seeking to enforce its suspension order pursuant Section 2951(A), it should bear the burden of proof.[5]

Furthermore, the Montana and Illinois Supreme Courts notwithstanding, most state courts, in similar situations, have concluded that the burden of proof should be placed on the state agency that suspends the license. For instance, in Joyner v. Garrett, 182 S.E.2d 553 (N.C. 1971), Joyner refused to take a Breathalyzer test after being arrested for operating a motor vehicle on a public highway while under the influence of an intoxicant. Afterwards, the Department of Motor Vehicles notified Joyner that his driving privilege was to be immediately revoked for sixty days unless he requested an administrative hearing within three days. Upon Joyner’s request, an administrative hearing was held and the hearing officer affirmed the suspension. In a de novo hearing, the Superior Court, in confirming the hearing officer’s decision, found that the burden of proof was on Joyner. On appeal, the North Carolina Supreme Court held that the Department of Motor Vehicles had the burden of proof at the administrative hearing, and that it also had the burden of proof at the de novo hearing in the Superior Court. Id.

Other cases that contain similar holdings include Harris v. Tex. Dep’t of Pub. Safety, 2005 WL 3359729 (Tex. App. 2005) (“To uphold a license suspension [pursuant to Texas’ implied consent law], an ALJ must find that [the Department of Public Safety] has proven all elements of section 724.042[6] by a preponderance of the evidence.”); Spinner v. Dir. of Revenue, 165 S.W.3d 228 (Mo. Ct. App. 2005) (The burden of proof was on the Missouri Director of Revenue to establish grounds for the suspension or revocation of driving privileges); Willis v. State, 701 P.2d 10, 11 (Ariz. Ct. App. 1985) (in a proceeding involving an automatic driver’s license suspension for refusal to submit to a breath test in violation of Arizona’s implied consent law, the burden of proof was on the State); Ex parte Boykin, 643 So.2d 986, 987 (Ala. 1993) (in a proceeding involving a summary driver’s license suspension for refusal to submit to a chemical test pursuant to Alabama’s implied consent statute, the Alabama Supreme Court concluded that “the Department failed to carry its burden of proof”); Sipes v. State ex rel. Dep’t of Pub. Safety, 950 P.2d 881 (Okla. Ct. App. 1997) (in a proceeding involving a driver’s license suspension for refusal to submit to a chemical test in violation of Oklahoma’s implied consent statute, the Oklahoma court held that the district court may review the evidence “to decide whether [the Department of Public Safety] has in fact met its threshold burden of proof”); Browning v. State ex rel. Dep’t of Pub. Safety, 812 P.2d 1372 (Okla. Ct. App. 1991) (the Oklahoma Department of Public Safety must prove compliance with the testing procedures used in the administration of a breath test); Coombs v. Pierce, 2 Cal. Rptr. 2d 249 (1991) (California DMV bore the burden of proof at an administrative proceeding to establish the validity of breath test results); Cole v. Driver and Motor Vehicles Services Branch, 87 P.3d 1120, 1131 (Or. 2004) (in a proceeding involving a summary driver’s license suspension for driving with a blood alcohol concentration above the legal limit, the Oregon Supreme Court held that the DMV bore the burden of proof); Montpetit v. Comm’r of Pub. Safety, 392 N.W.2d 663, 667 (Minn. Ct. App. 1986) (the Minnesota Commissioner of Public Safety bore the burden of proof in a proceeding involving a driver’s license suspension for driving with a blood alcohol concentration above the legal limit).

Finally, there are several policy reasons for placing the burden of proof on the Department, and not the motorist. First, by placing the burden of proof on the Department, the risk of erroneous suspension of the driver’s license is lessened. See Orth, 530 N.E.2d at 214-15. Second, driver’s licenses are quite important to individuals and, therefore, the process of taking away a driver’s license should not be taken lightly. For instance, in Bell v. Burson, 402 U.S. 535, 539 (1971), the United States Supreme Court explained:

Once licenses are issued . . . their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment.

Similarly, in Berlinghieri v. Dep’t of Motor Vehicles, 657 P.2d 383, 387-88 (Cal. 1983), the California Supreme Court described in detail the practical importance of a driver's license:

In our present travel-oriented society, the retention of a driver's license is an important right to every person who has obtained such a license.... [T]he reality of contemporary society is that public transportation systems may not meet the needs of many travelers and other forms of transportation, such as taxicabs, are not economically feasible for a large portion of the population. Whether a driver's license is required only for delivering bread, commuting to work, transporting children or the elderly, meeting medical appointments, attending social or political functions, or any combination of these or other purposes, the revocation or suspension of that license, even for a six-month period, can and often does constitute a severe personal and economic hardship.

Third, it simply seems that the more just approach would be to require the State of South Carolina to establish the elements of a violation rather than to compel the motorist to prove his innocence or risk suspension of his driver’s license. See Peabody Coal Co. v. Ralston, 578 N.E.2d 751, 754 (Ind. Ct. App. 1991) (“Similar to the rationale for affixing the ultimate burden of proof on the state in criminal matters, it would be a fundamentally unfair procedure to shift the burden of persuasion to one charged with a violation to prove his innocence.”). Notably in this regard, it could be very difficult for a motorist to prove certain Section 56-5-2951(F) elements, such as that the machine used to conduct the blood, breath or urine test was working improperly.

For these reasons, I find that the burden of proof should be placed on the Department in cases involving summary driver’s license suspensions pursuant to Section 56-5-2951(A). Therefore, because I find that the Department bore the burden of proof in this case, it was not error for the DMVH hearing officer to list the Department as the “Petitioner” in the caption of his order.

Notification of Law Enforcement

On January 10, 2006, the DMVH served both the Department and Respondent with a Notice of Hearing setting forth the time, date and place of the hearing. The Department’s staff did not attend the DMVH hearing. Nevertheless, the Department argues that because Act No. 128, § 22, 2005 S.C. Acts 1503 transferred “the duties, functions, and responsibilities of all hearing officers and associated staff” of the Department to the DMVH, the DMVH had a duty, which it failed to perform, to notify the law enforcement involved in Respondent’s arrest of the hearing.[7]

S.C. Code Ann. § 1-23-660, as amended by Act No. 128, § 22, 2005 S.C. Acts 1503, provides for the creation within the ALC of the South Carolina Division of Motor Vehicles Hearings (DMVH). Effective January 1, 2006, the duties, functions, and responsibilities of all hearing officers and associated staff of the Department were transferred to the DMVH. Importantly, as noted earlier, the amended Section 1-23-660 requires the DMVH hearing officers to conduct hearings in accordance with the Administrative Procedures Act (APA) and the ALC’s rules of procedure.

Generally speaking, tribunals are only required to inform each party as to the time, date and place of an upcoming hearing. See, e.g., Coogler v. California Ins. Co. of San Francisco, 192 S.C. 54, 58, 5 S.E.2d 459, 461 (1939) (“It would seem to be plain, upon well-settled and fundamental principles, that no order or judgment affecting the rights of a party to the cause should be made or rendered without notice to the party whose rights are to be thus affected, for otherwise a party would be deprived of his day in Court.”). More importantly, S.C. Code Ann. § 1-23-320 (2005) provides that in an APA “contested case” all parties must be afforded notice of the hearing and an opportunity to be heard. A “party” is a “person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party.” S.C. Code Ann. § 1-23-310 (5) (2005). The Department, not the arresting officer, is the agency that is charged with administering the State’s motor vehicle laws. S.C. Code Ann. § 56-1-5 (2006). Neither the newly amended Section 1-23-660 nor S.C. Code Ann. § 56-5-2951 (2006) sets forth that the arresting officer is a party to these types of proceedings. Furthermore, nowhere in Section 1-23-320, or in the rest of the APA, does it state that a party’s witnesses must be notified of the contested case hearing by the tribunal holding the hearing.

Moreover, Section 1-23-320 also states that the ALC “shall, on application of any party to the proceeding enforce by proper proceedings the attendance and testimony of witnesses . . .” (emphasis added). Thus, the duty to secure the attendance of witnesses falls on each party, and an administrative tribunal is only required to get involved in that process if, and when, a party applies to it for assistance. In fact, the recent separation of the functions of the Department and the DMVH creates a more independent tribunal to review license suspensions. The Department’s approach would have the impartial trier of fact become responsible for securing the attendance of adverse witnesses, therefore, once again blurring the lines between prosecutor and independent arbiter of the facts. Therefore, though it does not appear that the arresting officer, as a witness for the Department, was similarly served, the DMVH was not under any duty to do so and should not be responsible for that function.

In its brief, the Department also argues that in roughly half of the cases the Department is not supplied with a Notice of Suspension, and, therefore, the Department cannot easily ascertain who the arresting officer was.[8] In contrast, the DMVH is always provided with a copy of the Notice of Suspension. Thus, the Department implies that it would be much easier for the DMVH to notify the applicable officers. Although this may be true, it does not create the inference that the DMVH was required to notify the arresting officer in this case. Notably, the Notice of Hearing was mailed to the Department on January 10, 2006, and the hearing did not occur until February 8, 2006. Thus, the Department had almost a month to request the name of the arresting officer from the DMVH in the event that it did not have this information. However, there is no evidence that the Department attempted to obtain this information from the DMVH. Moreover, because the duty to secure the attendance of the arresting officer fell on the Department, its assumption that the DMVH would, or even should, perform its duty was misjudged.

In addition, the Department also argues that it does not have the staff required to contact law enforcement of upcoming hearings. In other words, the Department seeks to absolve itself of its responsibility to notify its witnesses by contending that because it allegedly has a shortage of staff, the DMVH should assume a responsibility not conferred upon it by law. The Department’s desire to have the DMVH assume this responsibility does not translate into a legal conclusion that the DMVH hearing officer committed error by not notifying the arresting officer in this case. The DMVH hearing officer was only required to notify the parties of the hearing – not the parties’ witnesses.

Having found that the DMVH did not have a duty to notify the arresting officer in this case, it is unnecessary to determine whether or not the DMVH failed to perform this duty. This appeal must be dismissed. Although, based on the circumstances of this case, dismissal of this appeal may seem harsh, the Department could have filed a motion to reconsider with the DMVH pursuant to ALC Rule 29 (D), but chose not to do so. In Mictronics, Inc. v. S.C. Dep’t of Revenue, 345 S.C. 506, 548 S.E.2d 223 (Ct. App. 2001), the Court of Appeals held that under ALC Rule 29 (D) “[a]ny party may move for reconsideration of a final decision of an administrative law judge in a contested case, subject to the grounds for relief set forth in Rule 60(b)(1 through 5), SCRCP. . . .” Accordingly, the Department could have sought a review upon the record as to whether there was “mistake, inadvertence, surprise, or excusable neglect.” SCRCP 60(b)(1). Furthermore, “where there is a good faith mistake of fact, and, no attempt to thwart the judicial system, there is basis for relief.” 548 S.E. 2d at 226 (quoting, Columbia Pools, Inc. v. Galvin, 288 S.C. 59, 339 S.E.2d 524 (Ct. App. 1986)).[9]

Here, however, unlike the litigant in Mictronics, the Department did not make a motion to reconsider this case under ALC Rule 29 (D), but rather appealed the DMVH’s dismissal to the ALC.[10] Accordingly, I cannot now make a determination regarding whether vacating the DMVH’s dismissal order is appropriate under ALC Rule 29 (D). Issues that are not raised by the parties nor ruled on by the trial court below are procedurally barred from any appellate review. Food Mart v. South Carolina Dep’t of Health and Envtl. Control, 322 S.C. 232, 233, 471 S.E.2d 688, 688 (1996); Portman v. Garbade, 337 S.C. 186, 189-90, 522 S.E.2d 830, 832 (Ct. App. 1999).[11] Thus, although such a decision is appealable to this Court for a review under the standards set forth in S.C. Code Ann. § 1-23-380 (2005), the DMVH is the tribunal that must make the initial determination.

Moreover, there is virtually no record for this Court to review with respect to this matter. For instance, except for the law enforcement officer’s lack of attendance at the hearing, there is no evidence concerning whether or not the arresting officer was notified of the hearing. There is also no evidence regarding whether the Department and, in particular, the arresting officer were unreasonably neglectful in prosecuting this case or whether the arresting officer actively pursued the case.

The insufficiency of the record is especially important, since ALC Rule 36(G) provides that an “Administrative Law Judge will not consider any fact which does not appear in the Record.” In Medlock v. One 1985 Jeep Cherokee VIN 1JCWB7828FT129001, 322 S.C. 127, 470 S.E.2d 373 (1996), the South Carolina Supreme Court also addressed the issue of an appellant’s failure to support its arguments in the record. The appellant argued civil forfeiture of her vehicle was a violation of Double Jeopardy because she was acquitted of the underlying criminal drug charges brought against her. The Court held that:

even if the issue were preserved, appellant has failed to provide this court with the means to analyze the merits of her claim. Nowhere in the record on appeal, or in anything submitted to this court, is there information regarding exactly what she was indicted and tried for. It is impossible to decide this issue without such information. The appellant has the burden of providing this court with a sufficient record upon which to make a decision.

Id. at 132, 470 S.E.2d at 376. Other courts have further emphasized that it is the burden of the Appellant to provide an adequate record for review. See, e.g., Mulligan v. Panther Valley Property Owners Ass'n, 766 A.2d 1186 (N.J. Super. Ct. App. Div. 2001) (a plaintiff who fails initially to present sufficient evidence to the trial court is, ordinarily, not entitled to a remand to cure that deficiency); Matter of Estate of Peterson, 561 N.W.2d 618, 623 (N.D. 1997) (“The purpose of an appeal is to review the actions of the trial court, not to grant the appellant the opportunity to develop and expound on new strategies or theories.”); Versailles Arms Apartments v. Granderson, 377 So.2d 1359, 1363 (La. Ct. App. 1979) (“When appellant fails to do so, there is no basis for the appellate court to determine whether the trial court erred in construing the evidence contrary to appellant's contentions, and the judgment is usually affirmed on the basis that the appellant failed to overcome the presumption of its correctness.”); Miskimen v. Biber, 858 A.2d 806, 812 (Conn. App. Ct. 2004) (“Without an adequate record, we can only speculate as to the basis for the trial court’s decision. Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court.”). Moreover, even in instances in which South Carolina courts have remanded cases, the courts have limited the remand to the existing record to avoid granting the litigants a “second bite of the apple.” See, e.g., State v. Frey, 362 S.C. 511, 514, 608 S.E.2d 874, 876 (Ct. App. 2005); Parker v. S.C. Pub. Serv. Comm’n, 288 S.C. 304, 307, 342 S.E.2d 403, 405 (1986).

The quintessence of the above holdings was summed up in the justification given by S.C. Supreme Court in Winesett v. Winesett, 287 S.C. 332, 333-34, 338 S.E.2d 340, 341 (1985), for its ruling held that a motion to reconsider must be filed with the trial court before a party can appeal a default judgment . The Court held that:

An early justification for this rule was that a defendant who does not appear and answer “has no status in court which will enable him to appeal from the judgment rendered.” An additional justification is that a party appealing a default judgment will ordinarily be precluded from raising any issues on appeal because they were not first presented below. Finally, the appellant will often not be able to meet his burden of providing this Court with a record sufficient to permit an adequate review.

Id. at 333, 338 S.E.2d at 341 (citations omitted). Thus, for these reasons, I cannot make a determination regarding whether or not the arresting officer’s failure to attend the hearing was due to mistake, inadvertence, surprise, or excusable neglect. Furthermore, remanding this case to the DMVH for such a determination would essentially circumvent the appellate rules discussed above which require an appellate court to make its determination based solely on the record before it, and which preclude such a court from considering issues that were not raised below. Accordingly, this Court would be exceeding its authority as an appellate court to remand in this case.

In conclusion, there is no question of the compelling state interest involved in matters concerning the consumption of alcohol while driving on the public ways. See Mackey v. Montrym, 443 U.S. 1, (1979). Furthermore, South Carolina policy favors the disposition of issues on their merits rather than on technicalities. Mictronics, supra. However, the Department chose to appeal the DMVH’s dismissal on the premise that DMVH neglected its duties, rather than seek a reconsideration of the DMVH’s order based upon “mistake, inadvertence, surprise, or excusable neglect.” Accordingly, it has abandoned the issue of whether vacating the DMVH’s order is warranted under ALC Rule 29 (D). Therefore, this case must be dismissed.





Ralph King Anderson, III

Administrative Law Judge

June 20, 2006

Columbia, South Carolina

[1] During a conference call that the Court held with the parties on June 12, 2006, the Department informed the Court that it no longer wished to pursue the continuance issue that it discussed in its brief. Therefore, this issue will not be discussed herein.

[2] The applicable statute, § 26-1- 401, MCA, stated that:

The initial burden of producing evidence as to a particular fact is on the party who would be defeated if no evidence were given on either side. Thereafter, the burden of producing evidence is on the party who would suffer a finding against him in the absence of further evidence.

[3] Although a few other cases were found in which a state court determined that the motorist bore the burden of proof in actions for reinstatement of a summarily suspended driver’s license, these cases can be distinguished in that they involve a statute that clearly places the burden of proof on the motorist. For instance, in Butcher v. Kan. Dep’t of Revenue, 124 P.3d 1078, 1080 (Kan. Ct. App. 2005), the Kansas Court of Appeals held that the burden of proof was on the motorist in a proceeding involving an administrative suspension of a motorist’s driver’s license for refusal to submit to a breathalyzer test pursuant to Kansas’ refusal statute, Kan. Stat. Ann. § 8-1014. In doing so, the court cited Kan. Stat. Ann. § 8-1020(k), which states: “At the hearing, the licensee has the burden of proof by a preponderance of the evidence to show that the facts set out in the officer's certification are false or insufficient and that the order suspending or suspending and restricting the licensee's driving privileges should be dismissed.”) See also Wilson v. Idaho Transp. Dep’t, 136 Idaho 270, 276, 32 P.3d 164, 170 n.2 (Idaho Ct. App. 2001) (where, in finding that the motorist bore the burden of proof in an action for reinstatement of a summarily suspended driver’s license, the Idaho Court of Appeals cited Idaho Code § 18-8002A(7), which stated: “The burden of proof shall be on the person requesting the hearing.”)

[4] Importantly, the amended Section 1-23-660 requires DMVH hearing officers to conduct their hearings in accordance with the ALC’s rules of procedure.

[5] Although a number of South Carolina cases have held that, generally speaking, an individual seeking to prove that an administrative agency's decision is erroneous has the burden of proof, see e.g., Tennis v. S.C. Dep’t of Social Services, 355 S.C. 551, 558, 585 S.E.2d 312, 316 (Ct. App. 2003); Duke Power Co. v. Pub. Serv. Comm'n of S.C., 343 S.C. 554, 558, 541 S.E.2d 250, 252 (2001); Porter v. S.C. Public Service Comm'n 333 S.C. 12, 20, 507 S.E.2d 328, 332 (1998), no such cases were found that involved enforcement actions.

[6] Those elements are as follows: (1) reasonable suspicion or probable cause existed to stop or arrest the person; (2) probable cause existed to believe that the person was operating a motor vehicle in a public place while intoxicated; (3) the person was placed under arrest by the officer and was requested to submit to the taking of a specimen; and (4) the person refused to submit to the taking of a specimen on request of the officer. See Tex. Transp. Code Ann. § 724.042 (Supp. 2005).

[7] Neither the Department nor the arresting officer attended the DMVH hearing. Moreover, the DMVH was not informed that the arresting officer would not be appearing.

[8] Interestingly enough, the Department’s brief does not indicate whether or not the Department received a copy of the Notice of Suspension in this case.

[9] Moreover, South Carolina courts have also granted motions to reconsider where the mistake was one of law. See e.g., Owen v. Reed, 288 S.C. 133, 341 S.E.2d 629 (1986) (affirming circuit court’s decision to vacate default judgment where defendant declined to participate in partition proceedings because of incorrect assumption that she would receive a one-third interest in the subject property); Jolley v. Jolly, 265 S.C. 594, 220 S.E.2d 882 (1975) (affirming lower court’s decision to vacate default judgment where defendant mistakenly believed she did not need to respond to a summons served upon her without a complaint in a sister state); Savage v. Cannon, 204 S.C. 473, 30 S.E.2d 70 (1944) (affirming trial court’s decision to vacate a default judgment where the defendant’s attorney mistakenly believed that the time for answering complaint had been extended by his motion for an itemized statement of account).

[10] As reflected in the briefs, the Department’s staff does not appear at these hearings to defend its position. Rather, the Department relies upon the arresting officer to prosecute these cases. Nonetheless, after the arresting officer did not appear at the hearing, the Department did not make a motion for reconsideration of the Hearing Officer’s decision.

[11] But see, Gist v. Cattell, Bail.Eq. 343, 8 S.C.Eq. 343, 1831 WL 1633 (Ct. App. 1831). There the court held that:

I suppose it to be within the competency of this Court, if any claim, or ground of defense, has been casually omitted to be made, to afford the parties an opportunity of trying its merits; and the Court is always reluctant, whilst the case is in its power, to exclude any apparently just claim, or defense.

Nevertheless, modern practice has not followed such an expansive view of remanding cases to correct errors that could have been raised at the trial court. See, e.g., Elam v. S.C. Dep’t of Transp., 361 S.C. 9, 24, 602 S.E.2d 772, 780 (2004) (noting that South Carolina appellate courts do not recognize the “plain error rule,” under which a court in certain circumstances is allowed to consider and rectify an error not raised below by the party).