OF THE CASE
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 Department’s brief, the DMVH’s Final Order and Decision is reversed as set forth below.
“In South Carolina,
operating a motor vehicle is a privilege of the State, not a right of the
individual.” Taylor v. 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 in pertinent part:
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 testing
required under Section 56-5-2950(a) 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. If
such a hearing is requested, 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; and (3) refused to
submit to a test pursuant to Section 56-5-2950. S.C. Code Ann. § 56-5-2951(F)
prior 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. 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). Therefore, it is now the DMVH that conducts these hearings.
On November 5, 2005, Respondent
was arrested for driving under the influence. He was transported to the Bamberg County Detention Center and was offered a breath test pursuant to Section
56-5-2950(a). Although Respondent attempted several times to blow into the breath
test machine, he at no point blew enough air into the machine to provide a
valid sample. The arresting officer deemed Respondent’s failure to provide a
valid sample a refusal, and issued Respondent a written Notice of Suspension
pursuant to Section 56-5-2951(A).
On December 1, 2005, pursuant
to Section 56-5-2951(B)(2), Respondent filed a request for an administrative
hearing with the Department. Four days later, on December 5, 2005, the
Department issued an “Order and Notice” that stated: “Due to the Hearing
Officer being unavailable within the thirty days as required by statute, it is
hereby Ordered that this matter be scheduled for the first available date.”
The Order and Notice thereafter stated that the hearing would be held on
January 10, 2006 at the Bamberg DMV in Bamberg, South Carolina. The hearing
was held, as scheduled, on January 10, 2006. At the beginning of the hearing, Respondent’s
attorney made a motion to have Respondent’s driver’s license reinstated. In
making this motion, Respondent’s attorney argued that, pursuant to Starnes
v. S.C. Dep’t of Pub. Safety, 342 S.C. 216, 535 S.E.2d 665 (Ct. App. 2000),
the DMVH lacked jurisdiction to hold the hearing since the hearing was not held
within the thirty-day time period required by S.C. Code Ann. § 56-5-2951(F)
(Supp. 2005). After Respondent’s attorney finished making this motion, the
DMVH hearing officer stated that he would take it under advisement. He then proceeded
with the hearing.
On February 17, 2006,
the DMVH hearing officer issued a Final Order and Decision in which he found
that Respondent: (i) was lawfully arrested; (ii) was advised in writing of his
implied consent rights; and (iii) refused to submit to a breath test. Despite
making these findings, the DMVH hearing officer ordered that Respondent’s
suspension be rescinded. In doing so, the hearing officer stated:
The Respondent’s attorney made a motion to have his clients
driver’s license reinstated based on a “Starnes Order”. . . It is possible that
the respondent’s claims have merit, and the Starnes’ motion to dismiss will be
granted, based on the preponderance of evidence presented and submitted by the
respondent’s attorney. Accordingly, the relief requested by the Respondent’s
attorney is granted.
Did the DMVH hearing officer err in
rescinding Respondent’s suspension based on the Court of Appeals’ decision in Starnes?
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:
violation of constitutional or statutory provisions;
excess of the statutory authority of the agency;
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
S.C. Code Ann. § 1-23-380(A)(6)
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).
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.
The Department argues
that the DMVH hearing officer erred by rescinding Respondent’s suspension based
on the Starnes decision since Section 56-5-2951 was been amended after
the Starnes decision was issued, and the Department fully complied with
the current version of Section 56-5-2951 in scheduling the hearing. I agree.
In Starnes, the
Department of Public Safety suspended a motorist’s license pursuant to S.C. Code Ann. § 56-5-2951(A) (Supp.
1998) based on the results of a breath test that the motorist submitted to
after being arrested for driving under the influence. The motorist thereafter
requested an administrative hearing to challenge the suspension. The hearing
was held two weeks after the motorist filed his hearing request with the
Department of Public Safety. At the time, S.C. Code Ann. § 56-5-2951(H) (Supp.
1998), stated in pertinent part:
An administrative hearing must be held within ten days after
the request for the hearing is received by the department. However, upon a
showing of exigent circumstances by either party, a continuance may be granted
not to exceed thirty days.
Starnes, 342 S.C. at 220,
535 S.E.2d at 667. Although the hearing was held after the ten-day statutory
time period had expired and neither party had requested a continuance, the
Department of Public Safety’s hearing officer sustained the suspension. The
Court of Appeals held that the Department of Public Safety lacked subject
matter jurisdiction to sustain the suspension since it failed to convene the
administrative hearing within the time period set forth in Section
56-5-2951(H). Id. at 222, 535 S.E.2d at 668.
As mentioned above, the
current subsection of Section 56-5-2951 that sets forth the time period in
which an administrative hearing must be held is subsection (F). Though the
statute reviewed in Starnes was the precursor to S.C. Code Ann. §
56-5-2951(F) (Supp. 2004), Section 2951 (F) nevertheless has different
requisites than the previous version. At the time Respondent requested his
hearing, subsection (F) stated in pertinent part:
An administrative hearing must be held within thirty days
after the request for the hearing is received by the [Department of Motor
Vehicles]. If the department does not hold the hearing within thirty days, a
written order must be issued by the department within thirty days. The order
must set forth the reasons why the hearing was not held within thirty days, and
a new hearing must be scheduled. If the department does not issue a written
order within thirty days or fails within thirty days to notify the defendant of
a new hearing, the person must have his driver’s license, permit, or
nonresident operating privilege reinstated.
S.C. Code Ann. § 56-5-2951(F)
this case, it is clear that the Department complied with Section 56-5-2951(F).
Notably, Respondent requested an administrative hearing on December 1, 2005.
On December 5, 2005, the Department issued an “Order and Notice” that stated:
“Due to the Hearing Officer being unavailable within the thirty days as
required by statute, it is hereby Ordered that this matter be scheduled for the
next available date.” The Order and Notice thereafter stated that the hearing
would be held on January 10, 2006 at the Bamberg DMV. Thus, because the
Department issued an Order and Notice within thirty days after receiving
Respondent’s hearing request that set forth the reasons why the hearing would
not be held within the thirty-day statutory time period and that properly
notified Respondent of the scheduled hearing, there was no violation of Section
56-5-2951(F). Therefore, the DMVH hearing officer’s Final Order and Decision
must be reversed.
IT IS HEREBY ORDERED that the DMVH hearing officer’s Final Order and Decision is reversed.
AND IT IS SO ORDERED.
Ralph K. Anderson, III
November 13, 2006
Columbia, South Carolina