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
“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.
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 refusal to submit to a breath test as required under
Section 56-5-2950(a). Pursuant to Section 56-5-2951(B)(2), Respondent
filed a request for an administrative hearing to challenge the suspension.
The DMVH issued a Notice of Hearing, which stated that Respondent’s hearing
would be held on February 8, 2006 at the Edgar A. Brown Building, 1205 Pendleton Street-Suite 325, Columbia, South Carolina. 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 South Carolina Department of Motor Vehicles have standing to
appeal an order of the South Carolina Department of Motor Vehicle Hearings?
2. Does the caption accurately reflect the nature of this action?
3. Did the Department of Motor Vehicle Hearings wrongfully fail to notify
law enforcement of the hearing?
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).
Respondent argues that
the Department has no standing to appeal an order of the DMVH. In making this
argument, Respondent relies on S.C. Code Ann. § 56-5-2951(G) (2006), which
provides that “[a]n administrative hearing is a contested proceeding under the
Administrative Procedures Act and a person has a right to judicial review
pursuant to that Act.” (emphasis added). Respondent then points to S.C. Code
Ann. § 1-23-310(6) (2005), which defines a person as “any individual,
partnership, corporation, association, governmental subdivision, or public or
private organization of any character other than an agency.” (emphasis added).
Respondent in turn cites S.C. Code Ann. § 1-23-310(2) (2005), which defines an
agency as “each state board, commission, department or officer, other than the
legislature or the courts, but to include the administrative law judge
division, authorized by law to determine contested cases.” Respondent then
argues that the Department is an “agency” under Section 1-23-310(2), and
therefore not a “person” under Section 1-23-310(6). Because of this,
Respondent claims that the Department has no standing to appeal this case under
The cardinal rule of
statutory interpretation is to determine the intent of the legislature. Georgia-Carolina
Bail Bonds, Inc. v. County of Aiken, 354 S.C. 18, 22, 579 S.E.2d 334, 336
(Ct. App. 2003). The real purpose and intent of the lawmakers will prevail
over the literal import of the words. Browning v. Hartvigsen, 307 S.C.
122, 125, 414 S.E.2d 115, 117 (1992). If the language of an act gives rise to
doubt or uncertainty as to legislative intent, the construing court may search
for that intent beyond the borders of the act itself. Liberty Mut.
Ins. Co. v. S.C. Second Injury Fund, 363 S.C. 612, 624, 611 S.E.2d 297, 303
(Ct. App. 2005). Any ambiguity in a statute should be resolved in favor of a
just, beneficial, and equitable operation of the law. City of Sumter Police Dep't v. One 1992 Blue Mazda Truck, 330 S.C. 371, 376, 498 S.E.2d 894,
896 (Ct. App. 1998). Courts will reject a statutory interpretation which would
lead to a result so plainly absurd that it could not have been intended by the
legislature or would defeat the plain legislative intention. Unisun Ins.
Co. v. Schmidt, 339 S.C. 362, 368, 529 S.E.2d 280, 283 (2000).
generally speaking, is an agency of South Carolina. Nevertheless, since the
enactment of S.C. Act No. 128 of 2005, the duties and functions of all the
Department’s hearing officers were devolved upon the Department of Motor
Vehicle Hearings. In the context of the statute, the phrase in Section
1-23-310(5) “authorized by law to determine contested cases,” defines which
bodies hearing contested matters fall under the APA. Thus, since the
Department is no longer authorized to hear contested cases in license
suspension matters under Section 56-5-2951(A), it is not an agency under
Section § 1-23-310(2) with respect to these matters. Furthermore, Section
1-23-380 of the APA grants all parties the right to appeal final decisions in
contested case hearings. S.C. Code Ann. § 1-23-380(A) (2005). Nevertheless,
Respondent essentially argues that Section 56-5-2951(G) provides an exception
to Section 1-23-380 for contested case hearings held under Section
56-5-2951(F). According to Respondent, with respect to these hearings, the
legislature has chosen to deny the Department the right to appeal. I find
Respondent’s argument implausible.
Even if the Department
could be construed as an “agency” with respect to license suspension matters
under Section 56-5-2951(A), a much more reasonable explanation for the language
of Section 56-5-2951(G) is that, when the legislature passed S.C. Act No. 128
of 2005, § 22, it neglected to amend Section 56-5-2951(G). Notably, prior to
the passage of S.C. Act No. 128 of 2005, § 22, the Department was the entity
that was authorized to hear contested case hearings held under Section
56-5-2951(F). Thus, it made sense for the legislature to limit the right to
appeal to “persons,” since the Department would never need the right to appeal
its own decisions. However, with the passage of S.C. Act No. 128 of 2005, §
22, the DMVH now hears contested case hearings held under Section 56-5-2951(G)
and the Department is a party to those proceedings. Thus, the language of
Section 56-5-2951(G), if given Respondent’s interpretation, would now put the
Department at an absurd disadvantage in these proceedings by denying the
Department the right to appeal. Such an interpretation is not consistent with the
legislative intent. Instead, the legislative intent is correctly captured in
Section 1-23-380, which grants all parties the right to appeal final decisions
in contested case hearings. Moreover, interpreting Section 56-5-2951(G) to
prevent appeals from the Department in contested case hearings held under
Section 56-5-2951(F) would not favor the just, beneficial, and equitable
operation of the law. Therefore, I find that the Department has standing to
bring this appeal.
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.
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.
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.
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.
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
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
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).
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.)
Thus, because the Department is actively seeking to enforce its suspension
order pursuant Section 2951(A), it should bear the burden of proof.
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 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).
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
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
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
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.
of Law Enforcement
On January 19, 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.
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
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.
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.
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 19, 2006, and the hearing did not occur until February 8, 2006. Thus,
the Department had almost three weeks 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)).
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.
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).
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
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
IT IS THEREFORE
ORDERED that this case is DISMISSED.
AND IT IS SO ORDERED.
King Anderson, III
June 20, 2006
Columbia, South Carolina