Wednesday, November 26, 2014

SC Administrative Law Court Decisions

CAPTION:
Diane F. Turkett vs. SCDMV

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Appellant:
Diane F. Turkett

Respondents:
South Carolina Department of Motor Vehicles
 
DOCKET NUMBER:
06-ALJ-21-0121-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 after 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 Appellant’s brief,[1] I affirm.

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.

Under S.C. Code Ann. § 56-5-2951(A) (2006), the license of a motorist who registers an alcohol concentration of 0.15% or above on a test conducted pursuant to Section 56-5-2950(a) must be immediately suspended. However, S.C. Code Ann. § 56-5-2951(B)(2) (2006), further provides that a motorist whose license is so suspended may request an administrative hearing to challenge the suspension.

FACTS

On December 8, 2005, Corporal Brian Bennett of the Irmo Police Department responded to a multi-vehicle accident on North Royal Tower Drive in Irmo, South Carolina. Upon reaching the scene of the accident, he met with Appellant, who was the driver of one of the cars involved in the accident. According to Corporal Bennett, Appellant’s speech was slurred and she smelled of alcohol. Corporal Bennett asked Appellant if she had been drinking. Appellant stated that she “had a couple.”[2] Corporal Bennett then advised Appellant of her Miranda rights and administered field sobriety testing on Appellant. Based on her poor performance, he arrested her for driving under influence. He then transported Appellant to the Irmo Police Department.

Upon reaching the Irmo Police Department, Corporal Bennett, who is certified to administer DataMaster tests, again advised Appellant of her Miranda rights and told her that she was being videotaped. He then read Appellant the implied consent advisement form and gave her a copy. A twenty-minute waiting period was then observed. At the conclusion of the waiting period, Appellant agreed to submit to a DataMaster test. Prior to the test, Corporal Bennett tested the DataMaster machine and determined that it was working properly. Appellant then offered a breath sample, but the DataMaster machine displayed an error message and subsequently aborted the test. At the hearing, Corporal Bennett could not recall the type of error message that the DataMaster machine displayed. Thereafter, another twenty-minute waiting period was observed and Appellant was again asked to provide a breath sample. She agreed. Prior to the second breath test, Corporal Bennett again tested the DataMaster machine and determined that it was working properly. The results of the second breath test indicated that Appellant’s blood alcohol concentration was 0.20%.

Based on the results of the test, Appellant was issued a written Notice of Suspension pursuant to Section 56-5-2951(A). Thereafter, pursuant to Section 56-5-2951(B)(2), Appellant filed a request for an administrative hearing to challenge the suspension. An administrative hearing was held on January 17, 2006 in Columbia, South Carolina. The DMVH hearing officer sustained Appellant’s suspension. Appellant now appeals.

ISSUES ON APPEAL

1 Should Appellant’s suspension be rescinded due to the fact that the DataMaster operator performed two breath tests?

2. Should Appellant’s suspension be rescinded due to the fact that the DataMaster operator did not produce the breath alcohol analysis test report for the first breath test?

3. Should Appellant’s suspension be rescinded due to the fact that the DataMaster operator did not testify that the Appellant’s mouth was checked or that she was asked whether or not she had foreign material in her mouth in contravention of SLED implied consent policy 8.12.5?

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

Requiring Appellant to Submit to Two Breath Tests

Appellant argues that her suspension should be rescinded because Corporal Bennett required her to submit to two breath tests. According to Appellant, Section 56-5-2950 only authorizes one breath test, except in certain situations, none of which were established at the hearing. I disagree.

Prior to 1987, Section 56-5-2950(a) expressly prohibited the administration of more than one chemical test. See S.C. Code Ann. § 56-5-2950(a) (1976) (“No person shall be required to submit to more than one test for any one offense for which he has been charged . . .”); see also S.C. Code Ann. § 46-344 (Supp. 1969) (predecessor to Section 56-5-2950). However, during the time in which the one test requirement was in effect, motorists apparently attempted to abuse the implied consent statute by agreeing to submit to a breath test, but then neglecting to blow a sufficient amount of air into the breathalyzer machine for the machine to produce a result. See 1972 Op. S.C. Att’y Gen. 29, No. 3245 (1972). The one test requirement was removed from Section 56-5-2950 in late 1987. See Act No. 179, § 2, 1987 S.C. Acts 2152 (effective December 30, 1987). Currently, Section 56-5-2950(a) states in pertinent part:

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. At the direction of the arresting officer, the person first must be offered a breath test to determine the person’s alcohol concentration. If the person is physically unable to provide an acceptable breath sample because he has an injured mouth, is unconscious or dead, or for any other reason considered acceptable by the licensed medical personnel, the arresting officer may request a blood sample to be taken. 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. If the alcohol concentration is eight one-hundredths of one percent or above, the officer may not require additional tests of the person as provided in this chapter.

(emphasis added).

The only portion of the above-quoted section that could possibly be construed as applying to this case is the last line, which forbids the administration of additional tests when a prior test has shown the motorist’s alcohol concentration to be eight one-hundredths of one percent or above. That sentence does not forbid additional testing when the first test is unable to produce a result because of an error. In fact, breath tests that are aborted because of an error reading are not considered to be completed tests under SLED policy. See SLED implied consent policy 8.12.6(A)(4) (“If a subject provides an acceptable breath sample and the test is aborted before completion, the subject may be required to provide another sample since aborted tests are not considered completed tests.”). This is the case even in situations where a reading is obtained for the breath sample, but the machine subsequently registers an error and aborts the test. See SLED implied consent policy 8.12.6(A)(5) (“An aborted test is not considered a second breath test because a test has not been completed. If a reading is obtained for the subject sample, but a status code message then occurs and aborts the test, this test is not a valid or completed test, and the test should be repeated.”). Therefore, SLED policy expressly allows DataMaster operators to repeat breath tests in situations where the first breath test registers an error. See SLED implied consent policies 8.12.6(A)(4) and 8.12.6(A)(5); see also SLED implied consent policy 8.12.5(L)(2)(f)(iv) (allowing an arresting officer to administer a second breath test after an error reading of “Invalid Sample” or “Detector Overflow”); SLED implied consent policy 8.12.5(L)(2)(f)(vi) (allowing an arresting officer to administer a second breath test after an error reading of “Interference Detected”).

Here, there is no indication that the administration of the second breath test to Appellant was improper. Corporal Bennett testified that the second test was administered because the DataMaster, during the first test, registered an error and aborted the test. As noted above, requiring a second breath test in such a situation does not violate Section 56-5-2950(a) or SLED policy. Moreover, there is no reason reflected in the Record to question the accuracy or veracity of Corporal Bennett’s testimony regarding the first breath test.[3] Notably, the U.S. Supreme Court has held that, in proceedings similar to this one, the risk of erroneous observation or deliberate misrepresentation by an arresting officer is insubstantial. Specifically, in Mackey v. Montrym, 443 U.S. 1 (1979), a case involving Massachusetts’ implied consent law, the U.S. Supreme Court ruled:

The officer whose report of refusal triggers a driver’s suspension is a trained observer and investigator . . . And, as he is personally subject to civil liability for an unlawful arrest and to criminal penalties for willful misrepresentation of the facts, he has every incentive to ascertain accurately and truthfully report the facts . . . [T]he risk of erroneous observation or deliberate misrepresentation of the facts by the reporting officer in the ordinary case seems insubstantial.

Id. at 14. Corporal Bennett’s testimony on the matter was thus sufficient to prove that the first test ended in an error reading. It was not necessary for the Department to produce additional evidence with respect to this issue. See, e.g., State v. Goodstein, 278 S.C. 125, 292 S.E.2d 791 (1982) (holding that the testimony of an arresting officer alone was sufficient to prove that the arresting officer had probable cause to arrest a motorist for driving under the influence). In fact, since blood alcohol level decreases with time once a person stops consuming alcohol, it is illogical that Corporal Bennett administered the second test for the purposes of obtaining a more incriminating result. Notably in this regard, Corporal Bennett waited another twenty minutes before administering the second test. Therefore, this Court simply cannot conclude that Section 56-5-2950(a) was violated or that Corporal Bennett acted improperly in administering the second breath test.

Failure to Produce Test Report for the First Breath Test

Appellant also argues that her suspension should be rescinded because Corporal Bennett did not produce the breath alcohol analysis test report for the first breath test and did not provide any explanation for his failure to produce that test. In making this argument, Appellant cites S.C. Code Ann. § 56-5-2950(d) (2006), which states in pertinent part: “A person required to submit to tests by the arresting law enforcement officer must be provided with a written report including the time of arrest, the time of the tests, and the results of the tests before any trial or other proceeding in which the results of the tests are used as evidence.”

Here, the results of the first test were not used against the Appellant at the hearing. In fact, it does not appear that the first test produced any results. Thus, it was unnecessary for Corporal Bennett to produce the breath alcohol analysis test report for that test. Importantly, Appellant did not argue that she was not provided with the breath alcohol analysis test report for the second test, the results of which were used against her. Moreover, based on: (i) Corporal Bennett’s uncontroverted testimony regarding Appellant’s statements and demeanor on the day of the arrest; (ii) Corporal Bennett’s testimony that the first test ended in error; and (iii) the results of the second test, it is quite unlikely that the results of the first test would have been helpful to Appellant.

Checking of Appellant’s Mouth

Finally, Appellant argues that the DMVH’s Final Order and Decision should be reversed because the Corporal Bennett did not testify that he checked Appellant’s mouth prior to administering the breath test as required by SLED implied consent policy 8.12.5.[4]

S.C. Code Ann. § 56-5-2951(F) (2006) states that the scope of the administrative 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) 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.

Nowhere in Section 56-5-2951(F) does it state that a relevant issue for the hearing is whether the test was administered pursuant to SLED policy. Nevertheless, Appellant argues that because Section 56-5-2950(a) states that tests must be administered pursuant to SLED policy, and because compliance with Section 56-5-2950 is a relevant issue for the hearing, this means that, during these types of hearings, the Department must prove that each and every SLED policy was followed.[5] I disagree. Instead, the applicable provision with respect to situations where a violation of a SLED policy is alleged is S.C. Code Ann. § 56-5-2950(e) (2006), which states:

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.

(emphasis added). Because Section 56-5-2950(e) specifically sets forth the procedure for the DMVH’s review of SLED policies and the standards for excluding test results based on such a review, it prevails over more general statutory provisions. See Wooten ex rel. Wooten v. S.C. Dep’t of Transp., 333 S.C. 464, 468, 511 S.E.2d 355, 357 (1999) (a specific statutory provision prevails over a more general one); Atlas Food Sys. & Servs., Inc. v. Crane Nat’l Vendors Div. of Unidynamics Corp., 319 S.C. 556, 558, 462 S.E.2d 858, 859 (1995) (general rule of statutory construction is that a specific statute prevails over a more general one).

Thus, test results cannot be excluded simply because an arresting officer failed to testify that a specific SLED policy was followed, unless the motorist makes a motion during the hearing requesting the DMVH hearing officer to review such SLED policy and the hearing officer determines that law enforcement’s failure to comply with the SLED policy materially affected the accuracy or reliability of the tests results or the fairness of the testing procedure. The motion requirement also fulfills the need for due process by requiring that the Department is given notice and the opportunity to respond to the motion with evidence that either shows that the SLED policy was followed or that the violation of the SLED policy did not materially affect the accuracy or reliability of the test results or the fairness of the testing procedure. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (“The fundamental requisite of due process of law is the opportunity to be heard.”) (quoting Grannis v. Ordean, 234 U.S. 385, 394 (1914)).[6] After hearing from both parties, the hearing officer must then decide whether the SLED policy was indeed followed and, if it was not, whether or not such failure to follow SLED policy materially affected the accuracy or reliability of the tests results or the fairness of the testing procedure.

This interpretation of Section 56-5-2950 is also consistent with the objectives of Section 56-5-2951. The purpose of statutes like Section 56-5-2951 is to balance the interests of the State in maintaining safe highways with the rights of the individual in maintaining personal autonomy free from arbitrary or overbearing State action. See Taylor v. S.C. Dep’t of Motor Vehicles, 368 S.C. 33, 37, 627 S.E.2d 751, 753 (Ct. App. 2006); see also Sponar v. S.C. Dep’t of Pub. Safety, 361 S.C. 35, 39, 603 S.E. 2d 412, 415 (Ct. App. 2004), cert. granted Nov. 17, 2005 (holding that, although the license to operate a motor vehicle is a mere privilege that is always subject to revocation or suspension for any cause related to public safety, it cannot be revoked arbitrarily or capriciously). The right balance is struck by requiring motorists, when they feel that a certain SLED policy was violated by law enforcement, to timely make a motion for the hearing officer to consider whether the SLED policy was indeed violated, rather than requiring the Department to prove, in every hearing, that it complied with every major SLED policy. After all, the main goal of summary suspension statutes is not to punish individuals, but to quickly remove dangerous drivers from public highways. See, e.g., State v. Cassady, 662 A.2d 955, 958 (N.H. 1995) (“The primary goal of the administrative license suspension process is to remove irresponsible drivers from the State’s highways as quickly as possible to protect the public . . . [T]he suspension of a driver’s license, when effected for this purpose, is not criminal punishment, but is remedial in nature.”) Certainly, the goal of quickly removing dangerous drivers from public highways would be frustrated if the standards placed upon the Department for meeting its burden of proof were set too high. See Mackey, 443 U.S. at 18 (“The summary and automatic character of the suspension sanction available under the statute is critical to attainment of [its] objectives.”)

Here, Appellant’s attorney did not mention SLED implied consent policy 8.12.5 until his closing argument when he stated: “There was no testimony that the petitioner’s mouth was examined or that the petitioner was asked did she have any foreign objects in her mouth . . . which the regulations say that you’ve got to do.” Even if this statement could be construed as a motion to consider SLED implied consent policy 8.12.5, it was untimely because it was made after the conclusion of testimony. Thus, the Department was not given a sufficient opportunity to respond. Moreover, based on the existing record, it is doubtful that any failure by law enforcement to check Respondent’s mouth materially affected the accuracy or reliability of the tests results or the fairness of the testing procedure. Notably, Respondent did not testify at the hearing that she had any foreign material and/or removable dental work in her mouth at the time of the breath test.

ORDER

IT IS THEREFORE ORDERED that the DMVH’s Final Order and Decision is AFFIRMED.

AND IT IS SO ORDERED.

______________________________

Ralph King Anderson, III

Administrative Law Judge

September 29, 2006

Columbia, South Carolina



[1] Respondent failed to submit a brief for this appeal. However, this fact alone does not require this Court to find in favor of Appellant. See ALC Rule 38; see also Rule 208(a)(4), SCACR. Nonetheless, in situations such as this one, this Court will not “search the record for reasons to affirm.” See Wierszewski v. Tokarick, 308 S.C. 441, 444, 418 S.E.2d 557, 559 n.2 (Ct. App. 1992).

[2] Corporal Bennett also testified at the hearing that Appellant later stated that she had consumed “a number of beers and alcoholic beverage shots” prior to the accident.

[3] Appellant did not present any evidence at the hearing to contradict Corporal Bennett’s testimony or to challenge the honesty of Corporal Bennett. Although Corporal Bennett admitted during cross-examination that he could not recall the precise type of error that had occurred, this admission, without more, is insufficient to show that Corporal Bennett has a faulty memory.

[4] SLED implied consent policy 8.12.5(G)(1) states: “The [DataMaster] operator will look inside the subject’s mouth and/or ask the subject if he/she has any foreign material and/or removable dental work in his/her mouth.”

[5] Importantly, Section 56-5-2950 contains many other requirements other than that the test must be performed pursuant to SLED policy.

[6] Certainly, the opportunity to be heard has little value if the Department is not sufficiently apprised, at a time during the hearing in which it can still present evidence, of the issues involved in the hearing.