OF THE CASE
This matter is before the Administrative Law Court (ALC or Court)
pursuant to the appeal of Claudia L. Raigosa (Appellant) of the Order of the
South Carolina Division of Motor Vehicle Hearings (DMVH) dated March 10, 2006.
The DMVH's Final Order and Decision was issued in connection with an
administrative hearing that it held pursuant to S.C. Code Ann. § 1-23-660
(Supp. 2005). The Administrative Law Court has jurisdiction to hear this matter
pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2005). Upon consideration of the record
and briefs, the DMVH’s Order is sustained as set forth below.
On November 2, 2003, Appellant was adjudicated as a
Habitual Offender. See S.C. Code Ann. §§ 56-1-1020 and 56-1-1030 (2006).
Thereafter, on November 23, 2005, after having served a suspension of two (2)
years, and as permitted by law, Appellant filed a Petition pursuant to S.C.
Code Ann §56-1-1090 (2006) seeking to have her S.C. Driver’s License restored
and her privilege to drive reinstated. A hearing was held on January 10, 2006,
by DMVH Hearing Officer Tracy G. Holland (DHO Holland). On March 10, 2006, DHO
Holland issued an Order, which denied Appellant’s Petition for reinstatement of
her S.C. Driver’s License.
ISSUE ON APPEAL
DHO Holland properly denied the reinstatement of Appellant’s South Carolina Driver’s
License upon the ground that Appellant had driven while still under suspension under
the Habitual Offender Law.
STANDARD OF REVIEW
to January 1, 2006, the Department’s Office of Administrative Hearings held the
hearings requested under Section 56-5-2951(B)(2). 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 (the “DMVH Act”). Pursuant to the amended Section 1-23-660,
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). Therefore, it is now the DMVH that conducts
The DMVH is authorized by law to determine contested case hearings of the
Department. See S.C. Code Ann. § 1-23-660 (Supp. 2005). Therefore, the
DMVH is an “agency” under the Administrative Procedures Act (APA). See S.C.
Code Ann. § 1-23-310(2) (2005). As such, appeals from the decisions of the
DMVH are properly decided under the APA’s standard of review. See S.C.
Code Ann. § 1-23-380(A) (2005); see also Byerly Hosp. v. S.C. State Health & Human Servs. Fin. Comm’n, 319 S.C. 225, 229, 460 S.E.2d 383,
The standard used by appellate bodies to review agency decisions is provided
by S.C. Code Ann. § 1-23-380(A)(6) (2005), which states:
The court shall not substitute its
judgment for that of the agency as to the weight of the evidence on questions
of fact. The court may affirm the decision of the agency or remand the case
for further proceedings. 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;
made upon unlawful procedure;
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
Thus, pursuant to the APA, this Court’s review is limited to deciding
whether DHO Holland’s Order is unsupported by substantial evidence or is affected
by an error of law. Bass v. Kenco Group, 366 S.C. 450, 457, 622 S.E.2d
577, 581 (Ct. App. 2005). Substantial evidence is not a mere scintilla of
evidence, nor the evidence viewed blindly from one side of the case, but is
evidence which, considering the record as a whole, would allow reasonable minds
to reach the conclusion the agency reached in order to justify its action. Hargrove
v. Titan Textile Co., 360 S.C. 276, 289, 599 S.E.2d 604, 611 (Ct. App.
2004). The possibility of drawing two inconsistent conclusions from the
evidence does not prevent the agency’s findings from being supported by
substantial evidence. Id. at 290, 599 S.E.2d at 611. Importantly, the
party challenging an agency action has the burden of proving convincingly that
the agency’s decision is unsupported by substantial evidence. Waters v. S.C. Land Resources Conservation Comm’n, 321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996).
The license to operate a motor vehicle upon South Carolina’s public
highways is not a property right, but is a mere privilege subject to reasonable
regulations in the interests of public safety and welfare. 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 on November 17, 2005 (quoting Summersell v. S.C.
Dep’t of Pub. Safety, 334 S.C. 357, 366, 513 S.E.2d 619, 624 (Ct. App.
1999), vacated in part on other grounds, 337 S.C. 19, 522 S.E.2d 144
(1999)). Consistent with this principle, S.C. Code Ann. § 56-1-1090 (2006) provides:
No license to operate
motor vehicles in this State may be issued to an habitual offender nor shall a
nonresident habitual offender operate a motor vehicle in this State:
(a) for a
period of five years from the date of a final decision by the Department of
Motor Vehicles that a person is an habitual offender and if, upon appeal, the
finding is sustained by a magistrate unless the period is reduced to two years
as permitted in item (c);
(b) until financial responsibility requirements are met;
upon petition and for good cause shown, the department may restore to the
person the privilege to operate a motor vehicle in this State upon terms and
conditions as the department may prescribe, subject to other provisions of law
relating to the issuance of drivers' licenses. The petition permitted by this
item may be filed after one year has expired from the date of the decision of
the department finding the person to be an habitual offender. At this time and
after hearing, the department may reduce the five-year period of item (a) to a
two-year period for good cause shown. If the two-year period is granted, it
must run from the date of the final decision of the department. If the two-year
period is not granted, no petition may be filed again until after five years
have expired from the date of the decision of the department. However, a
petition or court order is not required for the restoration of driving
privileges, and the issuance of a license after the five-year waiting period
has expired and all financial responsibilities have been fulfilled.
On August 15, 2005, and within the two (2) year period of suspension,
Appellant did drive a motor vehicle upon the highways of the State of South Carolina resulting in a charge of Speeding, Driving Under Suspension and Violation of
the Habitual Offender Law. As appears from the Transcript of Testimony taken at
the hearing, these charges were still pending on the date of the hearing before
DHO Holland. DHO Holland left the record open for one week to allow Appellant
to supplement the record with proof that these charges had been dismissed.
On January 13, 2006, a letter was submitted that was
written by Lucas C. Marchant, Assistant Solicitor of the 13th Judicial Circuit, to Appellant’s attorney. This letter indicated that Mr. Marchant
was requesting dismissal of these charges and further indicated that it would
take approximately three weeks to receive a response to his request. There is
nothing further in the file from Mr. Marchant indicating that the charges were
in fact dismissed.
Appellant primarily relies on the South Carolina Supreme Court case State
v. Cole, 304 S.C. 47, 403 S.E.2d 117 (1991), to assert that emergency
circumstances existed that justified her driving on August 15, 2005. Based on
these asserted emergency circumstances, Appellant asserts necessity as a
defense. Cole held that in order to use necessity as a defense to
driving under suspension the following factors must be found:
there is a present and imminent emergency arising without fault on part of actor
emergency is of such nature as to induce a well grounded apprehension of death
or serious bodily harm if the act is not done; and
there is no other reasonable alternative, other than committing crime, to avoid
threat of harm.
49-50, 403 S.E.2d at 119.
Appellant’s attorney asserted at the hearing that
Appellant’s violations were occasioned by an emergency and that these
violations were likely to be dismissed and should have been disregarded by DHO
Holland. The emergency claimed by Appellant is that she received a call from
her sister about nine o’clock one evening stating that there was a possibility
that some one was breaking into a car in her (the sister’s) car lot. The sister
had young children at home, a ten year old daughter and a five year old son,
who would be left alone if the sister left to go to the car lot. Appellant
attempted to drive the approximately eight miles to her sister’s home to be
with the children in the sister’s absence and was stopped for speeding on the
The Order by DHO Holland found that the facts
underlying Appellant’s excuse of emergency were not sufficient in that no life
or death issues were involved nor was there a need for emergency medical
attention. In addition DHO found that Appellant used bad judgment in
disregarding the laws of this State when she chose to drive on the occasion in
In the case at hand, it is doubtful that the break-in
or potential break-in at the car lot is an imminent emergency in the sense that
it is a sufficient excuse for Appellant to have broken the law. Id. There was no well grounded apprehension of death or serious bodily harm. Id. To be sure, it is not advisable to leave young children alone. However, the
solution to this problem did not lie in the violation of the law by Appellant.
Finally, there were certainly reasonable alternatives
to Appellant’s violation of the law. Id. The police could have been
called. The Appellant could have called a taxi. The sister could have taken the
children with her. Now, there may be some reason that Appellant may feel that
none of those alternatives were reasonable. The fact is, however, that there
was not a shred of testimony in the record to support Appellant’s implication
that she used good judgment under the circumstances. Or, said another way, she
did not put evidence in the record that there were no reasonable alternatives.
Necessity is an affirmative defense which must be established by a
preponderance of the evidence. Id at 50, 403 S.E.2d at
119. Appellant has failed to establish the defense of necessity by a
preponderance of the evidence in this case.
It is immaterial that the charges against Appellant may have been
dismissed for Speeding, Driving Under Suspension and Violation of the Habitual
Offender Law. DHO Holland found that good cause for reinstatement did not
exist because Appellant used bad judgment in violating the law and that she
should thus serve the rest of her suspension.
There was clearly substantial
evidence to support the findings of the DHO. The DHO Holland’s decision was
not in violation of constitutional or statutory provisions nor
was it in excess of the statutory authority of the agency. See S.C.
Code Ann. § 1-23-380(A)(6) (2005). DHO Holland’s decision was not made upon
unlawful procedure; was not affected by other error of law; and was not clearly
erroneous in view of the reliable, probative and substantial evidence on the
whole record. Id. Finally, DHO Holland’s decision was not arbitrary or
capricious or characterized by abuse of discretion or clearly unwarranted
exercise of discretion. Id.
Based on the foregoing,
IT IS THEREFORE ORDERED that the decision made by DHO Tracy G. Holland is AFFIRMED.
AND IT IS SO ORDERED.
John D. McLeod
October 17, 2006
Columbia, South Carolina