Wednesday, August 27, 2014

SC Administrative Law Court Decisions

CAPTION:
SCDMV vs. Carolyn Ann Henderson

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Appellant:
South Carolina Department of Motor Vehicles

Respondents:
Carolyn Ann Henderson
 
DOCKET NUMBER:
06-ALJ-21-0096-AP

APPEARANCES:
n/a
 

ORDERS:

ORDER

STATEMENT OF THE CASE

This matter is an appeal by the South Carolina Department of Motor Vehicles (Department) from a Final Order and Decision of the South Carolina Division of Motor Vehicle Hearings (DMVH). The DMVH’s Final Order and Decision 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, the DMVH’s Final Order and Decision is reversed as set forth below.

BACKGROUND

“In South Carolina, operating a motor vehicle is a privilege of the State, not a right of the individual.” Taylor v. S.C. Dep’t. 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 . . . If the officer has reasonable grounds to believe that the person is under the influence of drugs other than alcohol, the officer may order that a urine sample be taken for testing.

Importantly, Section 56-5-2950(a) further states:

No tests may be administered or samples obtained unless the person has been informed in writing that: (1) he does not have to take the test or give the samples, but that his privilege to drive must be suspended or denied for at least ninety days if he refuses to submit to the tests and that his refusal may be used against him in court; (2) his privilege to drive must be suspended for at least thirty days if he takes the tests or gives the samples and has an alcohol concentration of fifteen one-hundredths of one percent or more; (3) he has the right to have a qualified person of his own choosing conduct additional independent tests at his expense; (4) he has the right to request an administrative hearing within thirty days of the issuance of the notice of suspension; and (5) if he does not request an administrative hearing or if his suspension is upheld at the administrative hearing, he must enroll in an Alcohol and Drug Safety Action Program.

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 that test must be immediately suspended. However, under S.C. Code Ann. § 56-5-2951(B)(2) (2006), a motorist who has his license so suspended may request an administrative hearing to challenge the suspension. The scope of the hearing must be limited to whether the person: (1) was lawfully arrested or detained; (2) was advised in writing of the rights enumerated in Section 56-5-2950; (3) refused to submit to a test pursuant to Section 56-5-2950; or (4) consented to taking a test pursuant to Section 56-5-2950, and: (a) the reported alcohol concentration at the time of testing was fifteen one-hundredths of one percent or more; (b) the individual who administered the test or took samples was qualified pursuant to Section 56-5-2950; (c) the tests administered and samples obtained were conducted pursuant to Section 56-5-2950; and (d) the machine was working properly. S.C. Code Ann. § 56-5-2951(F) (2006)

However, notwithstanding Section 56-5-2951(F), S.C. Code Ann. § 56-5-2950(e) (2006) also 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 any tests results, if the trial judge or hearing officer finds that such failure materially affected the accuracy or reliability of the tests results or the fairness of the testing procedure.

FACTS

On November 25, 2005, Officer C.H. Mace of the South Carolina Highway Patrol responded to a report of an accident that had occurred just off of S.C. 49 in Union County , South Carolina. Upon reaching the scene of the accident, he met with Respondent, who was the driver of one of the cars involved in the accident. According to Officer Mace, Respondent appeared drowsy and her eyes were red. After speaking with her about the accident, Officer Mace suspected that Respondent was under the influence of “something.” He advised Respondent of her Miranda rights and then administered field sobriety testing on Respondent. Based on her poor performance, he arrested her for driving under the influence. He placed her in his patrol car and asked her if she had been drinking. She stated that she had not. He then transported Respondent to the Union County Sheriff’s Department.

Upon reaching the Union County Sheriff’s Department, Officer Mace read Respondent the implied consent advisement form and gave her a copy. She consented to taking a breath test. The test results indicated that Respondent’s blood alcohol level was .00%. Officer Mace then advised Respondent that he was going to take her to the hospital so that she could submit a urine sample. He gave her a second copy of the implied consent advisement form for the urine test. Respondent refused to submit a urine sample. Based on this refusal, Respondent was issued a written Notice of Suspension pursuant to Section 56-5-2951(A).

Thereafter, pursuant to Section 56-5-2951(B)(2), Respondent filed a request for an administrative hearing to challenge the suspension. An administrative hearing was held on January 26, 2006. At the hearing, Respondent’s attorney asked Officer Mace if, prior to requesting the urine test, he had re-read the implied consent advisement form to Respondent. Officer Mace testified that he had not re-read the form to Respondent, but that, at the time he gave Respondent the second copy of the implied consent advisement form, he explained to her, “Here’s your implied consents in reference to your drug or your urine.” Respondent did not testify at the hearing.

During his closing argument, Respondent’s attorney argued that the failure by Officer Mace to re-read the implied consent form was “in clear violation of the statute and the codes and the [regulations] of the Department.” He also claimed that Respondent was prejudiced by this violation because Respondent “has now subjected herself to a suspension that she shouldn’t have when all she had to do was go do a urinalysis.”

In his Final Order and Decision, the DMVH hearing officer rescinded Respondent’s suspension. In doing so, he stated: “Respondent was never read her Implied Consent Warning for the request of urine. Trooper Mace failed to indicate the reason as to why he requested a urine test.”[1] The Department now appeals.

ISSUES ON APPEAL[2]

1.      Was it error for the DMVH hearing officer to rescind Respondent’s suspension based on the fact that Respondent was not re-read the implied consent advisement form prior to law enforcement’s request for a urine sample?

2.      Should this case be remanded to the DMVH for a determination of whether Respondent was prejudiced by the fact that Respondent was not re-read the implied consent advisement form prior to law enforcement’s request for the urine sample?

STANDARD OF REVIEW

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 (Supp. 2005). 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, 641, 321 S.E.2d 63, 68 (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, Inc., 276 S.C. 130, 136, 276 S.E.2d 304, 307 (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. S.C. Land Resources Conservation Comm’n, 321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996); Grant v. S.C. Coastal Council, 319 S.C. 348, 353, 461 S.E.2d 388, 391 (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, 519, 466 S.E.2d 357, 359 (1996) (citing Kearse v. State Health and Human Servs. Fin. Comm’n, 318 S.C. 198, 200, 456 S.E.2d 892, 893 (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. S.C. Coastal Council, 319 S.C. 348, 353, 461 S.E.2d 388, 391 (1995) (citing Gibson v. Florence Country Club, 282 S.C. 384, 386, 318 S.E.2d 365, 367 (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, 321 S.C. at 226, 467 S.E.2d at 917.

DISCUSSION

Propriety of Section 56-5-2950 Rights Advisement

The Department argues that the DMVH hearing officer erred in rescinding Respondent’s suspension based on the fact that Officer Mace did not re-read the implied consent advisement to Respondent prior to asking her to submit to urine testing. Respondent, on the other hand, argues that a breath test is different than a urine test, and, therefore, Officer Mace was required to re-advise Respondent of her implied consent rights prior to the urine test. Moreover, Respondent argues that, based on Taylor, it was not sufficient that Officer Mace provided Respondent with a second copy of the implied consent advisement form prior to requesting the urine test. According to Respondent, Taylor required Officer Mace to re-read the implied consent advisement form to Respondent.

Section 56-5-2950(a) states that, before a breath test is administered, or a urine or blood sample is obtained, a motorist must be advised in writing of her implied consent rights. Moreover, Section 56-5-2951(F) states that, in refusal cases such as this one, the scope of the administrative hearing must be limited to whether the motorist: (1) was lawfully arrested or detained; (2) was advised in writing of the rights enumerated in Section 56-5-2950; and (3) refused to submit to a test pursuant to Section 56-5-2950. Here, the Respondent was advised in writing before both the request for a breath test and the request for a urine test. Thus, clearly Officer Mace properly advised Respondent of her implied consent rights with respect to the urine test pursuant to Section 56-5-2950(a) and Section 56-5-2951(F), .

However, notwithstanding Section 56-5-2951(F), the first sentence of Section 56-5-2950(e) provides that a hearing officer may, on motion of either party, consider SLED policies in rendering his decision. The SLED implied consent policy at issue, policy 8.12.5(E)(1), states: “The advisement process consists of the officer reading any applicable advisements and furnishing the motorist with a copy.” (emphasis added). Nevertheless, even assuming that Respondent made a proper motion to consider SLED implied consent policy 8.12.5(E)(1) at the hearing,[3] policy 8.12.5(E)(1) does not require that a motorist must be re-advised of her implied consent rights after she submits to a breath test and before she is asked to perform a urine test. Moreover, nothing in Section 56-5-2950(a) sets forth that requirement.

Furthermore, in light of the appellate Court’s decisions in City of Florence v. Jordan, 362 S.C. 227, 607 S.E.2d 86 (Ct. App. 2004) and Taylor, as well as the second sentence of Section 56-5-2950(e),[4] it is unnecessary for this Court to determine whether or not Officer Mace thoroughly complied with SLED implied consent policy 8.12.5(E)(1). Instead, the question this Court must answer is whether or not, looking at the situation as a whole, Respondent was adequately informed of: (i) her right to refuse the urine test; and (ii) the possible consequences arising from her decision to refuse or proceed with the urine test. See Jordan, 362 S.C. at 233, 607 S.E.2d at 90. In making this determination, this Court must consider whether or not Officer Mace’s alleged failure to comply with SLED policy affected Respondent’s decision to refuse testing. See Taylor, 368 S.C. at 38, 627 S.E.2d at 754; see also S.C. Code Ann. § 56-5-2950(e) (2006). If it is determined that the alleged violation had no effect on Respondent’s decision, then the DMVH’s Order must be reversed. Taylor, 368 S.C. at 38, 627 S.E.2d at 754.

For instance, in Jordan, the motorist was prosecuted for driving under the influence. The motorist had been given a copy of the implied consent advisement form and had been orally informed that a breath test would be offered. However, on the advisement form, the arresting officer failed to circle whether a “breath,” “blood,” or “urine” sample would be requested from the motorist. The motorist moved to exclude the results of the breath test, arguing that the officer’s failure to circle the word “breath” resulted in an incomplete advisement under Section 56-5-2950. The Court of Appeals reversed the circuit court’s decision affirming the motion to suppress. In doing so, the Court of Appeals noted that:

Nowhere among the rights listed in section 56-5-2950 does it provide the accused a right to be explicitly advised in writing what specific type of test is being requested — be it blood, breath, urine, or any other test. Nor, under the language of the statute, does the accused have to be advised in writing that only one particular test is being requested to the express exclusion of any other test. Indeed, the implied consent rights provided under section 56-5-2950(a) inform the accused that he may refuse any test and refuse to give any samples. The supposed violation in the present case, therefore, is not connected to the implied consent rights set forth in section 56-5-2950(a) as contended by Jordan. The violation, if indeed one exists, stems solely from a failure to comply with SLED procedures.

Jordan, 362 S.C. at 231-32, 607 S.E.2d at 89. The court then discussed State v. Huntley, 349 S.C. 1, 5, 562 S.E.2d 472, 474 (2002)[5] and Section 56-5-2950(e).[6] Importantly, the Court of Appeals interpreted the Huntley decision and Section 56-5-2950(e) as follows:

As does Huntley, subsection (e) makes clear that the decision to admit or exclude test results under section 56-5-2950 should not turn solely on whether the prescribed procedures were followed with the most exacting compliance. Instead, the question should be whether the violation thwarted the clear policy objectives underlying the statute — that is, to ensure suspects are informed of their rights to refuse any test and, if consent is obtained, to ensure the tests are conducted in an accurate, reliable, and fair manner.

Id. at 233, 607 S.E.2d at 89-90.

The court then concluded that, under Huntley and Section 56-5-2950(e), the suppression of the test results was not warranted:

In this case, neglecting to circle the word “breath” on the SLED form has no bearing on the accuracy or reliability of the breath test results, and Jordan does not contend otherwise; nor does the failure in any way impact upon the fairness of the testing procedure. The purpose of the SLED form is not to serve as the exclusive source of information regarding the arrest and testing procedures provided to a person accused or suspected of driving under the influence. Rather, it is designed to serve the limited — but critically important — function of advising the accused in writing of his right to refuse any test and inform him of the possible consequences arising from his decision to refuse or proceed with any test. The failure to satisfy the specific technical requirement at issue in this case — a requirement that is beyond the scope of the statutory mandate of section 56-5-2950(a) — cannot, therefore, render the advisement in the present case incomplete.

Id. at 233; 607 S.E.2d at 90.

At the beginning of this year, the Court of Appeals also decided Taylor. In Taylor, a motorist’s driver’s license was suspended pursuant to Section 56-5-2951(A) based on the motorist’s refusal to submit to chemical testing after being arrested for driving under the influence. Although the arresting officer read aloud to the motorist a form which set forth the motorist’s implied consent rights, the officer did not provide the motorist with a written copy of the form as is required under Section 56-5-2950(a). The motorist subsequently requested a hearing to challenge the suspension. The Court of Appeals ultimately reversed the circuit court decision to reinstate the motorist license, relying heavily on the Huntley decision. Importantly, the Taylor court interpreted Huntley as follows:

[In Huntley], the supreme court reversed the suppression of the breathalyzer test results because the defendant was not prejudiced by the statutory violation committed by the breathalyzer operator. Consequently, the Huntley decision dictates that a violation of section 56-5-2950 without resulting prejudice will not lead to a suppression of the evidence obtained pursuant to this section.

Taylor, 368 S.C. at 38, 627 S.E.2d at 754. The Court of Appeals then noted that the motorist did not argue that he was not advised of his implied consent rights, or that he would have provided a blood test if he had been advised of his implied consent rights in writing. Id. Therefore, the Court concluded that the motorist was not prejudiced by the fact that the arresting officer did not provide a written copy of the implied consent advisement to the motorist. Id.

In sum, Jordan indicates that the implied consent advisory form sufficiently advises motorists of their right to refuse any test and sufficiently informs them of the possible consequences arising from their decision to refuse or proceed with any test. If law enforcement does not need to designate on the implied consent advisory form the type of test being requested, then it is doubtful that law enforcement is required to fully re-advise motorists of their implied consent rights prior to requesting a second type of test. Thus, based on Jordan, it would appear that providing motorists with a simple reminder of their implied consent rights is, at most, all that is necessary when subsequent testing is requested. Moreover, even if a full re-advisement was required, then, pursuant to Taylor, providing Respondent with a second copy of the implied consent form was sufficient. If, absent a showing of prejudice by the motorist, an oral advisement alone is sufficient to properly advise a motorist of her implied consent rights, then a written advisement alone must also be sufficient under the same circumstances. Notably, there is no indication in the statute that oral advisements are held in higher regard than written advisements; in fact, the contrary appears to be the case.

In the present case, even if Officer Mace did not follow SLED implied consent policy 8.12.5(E)(1) with “the most exacting compliance,” Respondent was still adequately informed of her right to refuse urine testing and the consequences of so refusing. At the time of the breath test, Respondent was advised, both orally and in writing, of her right to refuse testing and the ramifications of choosing to do so. Moreover, prior to being asked to submit a urine sample, Respondent was reminded of her right to refuse testing and the consequences of so refusing when Officer Mace handed her a second copy of the implied consent advisement form and explained to her, “Here’s your implied consents in reference to your drug or your urine.” In fact as a result of the officer’s advisement, Respondent refused to submit to urine testing. Thus, she apparently understood that her right to refuse testing applied to the urine test, even though Officer Mace did not re-read the implied consent advisory form to Respondent prior to requesting the urine test. Finally, Respondent did not testify at the hearing that she did not understand that the statements contained in the implied consent advisory form applied to the urine test or that she believed that, since she had submitted to a breath test, she could refuse the urine test with impunity.[7] Based on these facts, I simply cannot conclude that Respondent did not realize that the consequences of refusing testing, which Respondent was advised of several times, applied to the urine test.

Appropriateness of Remand

Respondent argues that, if this Court determines that a finding of prejudice is necessary in order to rescind the suspension, then this case must be remanded to the DMVH so that it can determine if such a finding is appropriate. In making this argument, Respondent cites the Court of Appeals’ decision in State v. Frey, 362 S.C. 511, 608 S.E.2d 874 (Ct. App. 2004). I disagree.

In Frey, a motorist was convicted of driving under the influence based on the results of a blood sample that was taken from him after he was involved in a motor vehicle accident. On appeal of the conviction, the Court of Appeals determined that the fact that an individual appeared in the emergency room wearing “hospital like scrubs” did not provide sufficient evidence to prove that the blood sample was collected by qualified medical personnel as was required by Section 56-5-2950(a). The Court, nevertheless, noted that the failure to follow Section 56-5-2950(a) can not result in the exclusion of the evidence unless “the trial judge or hearing officer finds that such failure materially affected the accuracy or reliability of the tests results or the fairness of the testing procedure.” 608 S.E.2d at 878 (quoting Section 56-5-2950(e)). Therefore, since the State’s failure to comply with Section 56-5-2950(a) was “inextricably connected to the accuracy and reliability of the blood test results,” the Court elected to remand the case. However, the Court determined that on remand, consideration of prejudice should be based solely on the existing record. Id. at 518-19, 608 S.E.2d at 878-79.

As explained in Frye, remanding this case for the taking of new evidence would improperly give the State “a second bite of the apple.” See also Porter v. S.C. Public Service Comm'n, 333 S.C. 12, 507 S.E.2d 328 (1998). Here, the motorist was likewise fully able to present evidence of prejudice at her hearing. Furthermore, the Frey decision notwithstanding, the Court has not always chosen, in DUI related cases, to remand the issue of prejudice to the lower court. For instance, the Court did not remand for a determination of potential prejudice in Jordan, or even in Taylor. I find that this case is much more analogous to Taylor than it is to Frey. In both cases (Taylor and the present case), the motorists were advised of their implied consent rights in some fashion. Similarly, in both cases, the motorists argued that the advisement was not proper because of a minor violation of either Section 56-5-2950 or SLED policy. Moreover, in both cases, testimony by the motorist regarding whether he or she would have made a different decision had the violation not occurred would have been the easiest, and most effective, way to show that prejudice had occurred. However, the motorist offered no such testimony in either case.

Therefore, because the violation alleged here was, at best, very minor and because Respondent did not present any evidence at the hearing to show that she was prejudiced by the violation, there is simply no way that the DMVH hearing officer could properly find prejudice based on the existing record. Thus, remanding this case to the DMVH would be pointless.

ORDER

Because the substantial rights of the Department have been prejudiced by the DMVH’s improper rescission of Respondent’s suspension, it is hereby ordered that the DMVH’s Final Order and Decision is REVERSED.

AND IT IS SO ORDERED.

______________________________

Ralph K. Anderson

Administrative Law Judge

August 25, 2006

Columbia, South Carolina



[1] It is somewhat unclear from the DMVH’s Order whether it was based on two grounds, or solely on one. Because of the second quoted sentence, it could be argued that the Order was based not only on the ground that Respondent was not re-read the implied consent advisement form prior to the urine sample request, but also on the ground that Officer Mace’s request for a urine sample was improper because he did not have reasonable grounds to believe that Respondent was under the influence of drugs other than alcohol. The reason why this is noteworthy is because unappealed rulings, right or wrong, become the law of the case and require affirmance. See Buckner v. Preferred Mut. Ins. Co., 255 S.C. 159, 160-161, 177 S.E.2d 544, 544 (1970); Ex Parte Morris, 367 S.C. 56, 65, 624 S.E.2d 649, 653-54 (2006). In this case, the Department has not challenged the issue of whether Officer Mace had reasonable grounds to believe that Respondent was under the influence of drugs other than alcohol. Nevertheless, it is this Court’s opinion that the DMVH’s Order was based solely on the ground that Respondent was not re-read the implied consent advisement form prior to the urine sample request. First, the Order at no point mentions the portion of Section 56-5-2950(a) that requires an officer, before ordering a urine sample from a motorist, to have reasonable grounds to believe that the motorist is under the influence of drugs other than alcohol. If this section of the statute were indeed a ground for the Order, it certainly seems that the DMVH hearing officer would have mentioned it. Second, based on Officer Mace’s testimony, it appears quite clear that he had reasonable grounds to request a urine sample. In fact, Respondent’s attorney did not mention this issue at any time during the hearing. Third, the statement “Trooper Mace failed to indicate the reason as to why he requested a urine test” could be construed to mean that Officer Mace never indicated to Respondent why he was requesting the urine test. It is possible that the hearing officer felt that this fact was relevant to the advisement issue. Finally, Respondent’s brief does not address the issue of whether Officer Mace had reasonable grounds to believe that Respondent was under the influence of drugs other than alcohol. Therefore, even Respondent, who presumably would have made any and all valid arguments necessary for affirmance of the Order, apparently concluded that this issue was not a second ground for the hearing officer’s decision.

[2] Although the Department presented an additional issue on this appeal, because the implied consent advisement issue is dispositive, the second issue need not be addressed. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (noting that an appellate court need not address remaining issues when a prior issue is dispositive).

[3] It is not completely clear that Respondent properly moved the hearing officer to consider SLED implied consent policy 8.12.5(E)(1). Although Respondent’s attorney stated at the hearing that the failure by Officer Mace to re-read the implied consent form was “in clear violation of the statute and the codes and the [regulations] of the Department,” SLED implied consent policy 8.12.5(E)(1) was never specifically mentioned at the hearing or, for that matter, in Respondent’s brief to this Court. Nevertheless, because of my holding in this case, it is not necessary for me to address this issue.

[4] As noted above, the second sentence of Section 56-5-2950(e) states that the failure by law enforcement to follow any SLED policy, procedure, or regulation, or the provisions of Section 56-5-2950, will result in the exclusion from evidence of any tests results, if the trial judge or hearing officer finds that such failure materially affected the accuracy or reliability of the tests results or the fairness of the testing procedure. Although this is a refusal case, and, hence, there are no test results to exclude, it is this Court’s opinion that the Section 56-5-2950(e) standard for excluding test results is the same standard that should be used in determining, in refusal cases, whether or not a suspension should be rescinded based on law enforcement’s failure to comply with Section 56-5-2950 or a SLED policy, procedure, or regulation.

[5] Huntley involved the prosecution of a motorist for driving under the influence. The trial court in the case had suppressed the motorist’s breathalyzer test results because the breathalyzer operator tested the breathalyzer machine with a simulator test solution containing an alcohol level of .10% rather than the .08% mandated by statute. On appeal of the case to the South Carolina Supreme Court, the court reasoned that, because the simulator test merely determined the reliability of the breathalyzer machine’s results, it was “irrelevant whether the simulator test [was operated] using an alcohol level of .10 or .08 percent.” Huntley, 349 S.C. at 5, 562 S.E.2d. at 474. The court then concluded:

Even if the breathalyzer operator did not use the simulator test solution at the alcohol concentration required by [Section 56-5-2950], Huntley was not prejudiced. There is no question the breathalyzer machine was operating properly and its results were reliable. Consequently, the trial judge erred by excluding Huntley’s breathalyzer test results.

Id. at 6, 562 S.E.2d. at 474.

[6] As the Jordan court points out, Section 56-5-2950(e) was enacted shortly after the Huntley decision “to provide additional guidance to our trial courts on when to exclude test results due to the failure to comply with [Section 56-5-2950]’s mandates or SLED regulations.” Jordan, 362 S.C. at 232, 607 S.E.2d at 89; see also Act No. 61, § 6, 2003 S.C. Acts 674, 689.

[7] At the hearing, Respondent’s attorney argued that the “general public doesn’t understand” that, in cases where they have agreed to breath testing, they can still have their licenses suspended if they refuse to submit to subsequent urine testing. However, this unsupported assertion is insufficient to show that Respondent, herself, did not understand the consequences of refusing the urine test.