Carroll v. South Carolina Dep't Of Pub. Safety, 4678.
Decision Date | 26 April 2010 |
Docket Number | No. 4678.,4678. |
Citation | 388 S.C. 39,693 S.E.2d 430 |
Court | South Carolina Court of Appeals |
Parties | David CARROLL, Appellant,v.SOUTH CAROLINA DEPARTMENT OF PUBLIC SAFETY and South Carolina Department of Motor Vehicles, Defendants,Of whom South Carolina Department of Motor Vehicles is the, Respondent. |
A. Randolph Hough, of Columbia, and Heath P. Taylor, of West Columbia, for Appellant.
General Counsel Frank L. Valenta, Jr., Deputy General Counsel Philip S. Porter, and Assistant General Counsel Linda A. Grice, all of Blythewood, for Respondent.
David Carroll appeals an Administrative Law Court (ALC) order affirming his license suspension for registering an alcohol concentration of 0.15% or greater. Carroll argues the ALC erred in finding he was not prejudiced by the arresting officer's failure to advise him of his implied consent rights in writing as required by section 56-5-2950(B) of the South Carolina Code (Supp.2009). We affirm.
On May 28, 2007, State Trooper Lance Corporal Stack received a “BOLO” (be on the lookout) alert for a grey-colored vehicle reportedly “all over the road.” Trooper Stack was approaching a vehicle stopped on the shoulder of the road matching the description in the BOLO when the vehicle suddenly made a U-turn across two lanes of traffic to travel in the opposite direction. Trooper Stack turned on his blue lights and pulled the vehicle over. After noticing a strong odor of alcohol in the vehicle, he asked the driver, Carroll, to step out. Carroll's speech was slurred, and he seemed unsteady on his feet. Trooper Stack searched the vehicle and located an open container in the vehicle. He advised Carroll of his Miranda rights,1 and Carroll stated he understood everything.
Another State Trooper, Lance Corporal Chance, arrived on the scene and advised Carroll that he was being videotaped and audio recorded. Trooper Chance informed Carroll he could refuse to take the field sobriety tests. He administered three standard field sobriety tests, all of which Carroll failed. Trooper Stack placed Carroll under arrest for driving under the influence (DUI) and transported Carroll to the Orangeburg County Law Enforcement Complex for a DataMaster blood alcohol concentration test (BAC test).
Trooper Stack verbally advised Carroll of his implied consent rights by reading the advisement form to him. He checked Carroll's mouth for any foreign material and then waited the requisite twenty minutes before performing the BAC test. Carroll was undecided about whether to take the test or refuse it during the twenty minute waiting period. Trooper Stack asked Carroll to stand up and blow into the DataMaster machine and Carroll complied, after which he proceeded to perform three separate BAC tests. The first and second tests showed interference, but the third BAC test registered a blood alcohol level of 0.25%. Trooper Stack did not give Carroll his implied consent warning in writing until after all three tests were completed. Carroll signed the advisement of rights, along with his driver's license suspension, and copies of the BAC test reports.
Carroll requested an administrative hearing pursuant to section 56-5-2951(B)(2) of the South Carolina Code (Supp.2009). During the hearing, Carroll stated he did not understand anything about the BAC testing process, and he “most likely would have refused” the BAC test if he had seen his implied consent rights in writing. However, on cross-examination, Carroll admitted he recalled informing Trooper Stack that he understood the verbal advisement of his implied consent rights. Carroll later explained that while he remembered telling Trooper Stack he understood, he did not truly understand the advisement of rights, and he was only agreeing with Trooper Stack at the time out of respect for Trooper Stack's rank.
After the hearing, the Department of Motor Vehicles (the Department) sustained Carroll's driver's license suspension, finding the BAC tests were administered in compliance with the implied consent statute. Carroll appealed, and the ALC affirmed the Department's decision. The ALC's order noted Carroll testified he understood his implied consent rights prior to testing, and Carroll subsequently signed a copy of the implied consent advisement of rights form. The ALC concluded Carroll was not prejudiced by the lack of written notice prior to testing. This appeal followed.
Appellate review of an ALC order must be confined to the record. S.C.Code Ann. § 1-23-610(B) (Supp.2009). This court may not substitute its judgment for that of the ALC as to the weight of the evidence on questions of fact. Id. This court may affirm the decision, remand the case for further proceedings, or “reverse or modify the decision if the substantive rights of the petitioner have been prejudiced....” Id. The petitioner suffers prejudice when the ALC's finding, conclusion, or decision is:
Carroll argues the ALC erred in affirming his license suspicion based upon its determination that Carroll was not prejudiced by Trooper Stack's failure to advise Carroll of his implied consent rights in writing as required by section 56-5-2950(B) of the South Carolina Code (Supp.2009). We disagree.
South Carolina's Legislature has adopted an implied consent statute that provides:
S.C.Code Ann. § 56-5-2950(B) (Supp.2009) (emphasis added). Additionally, section 56-5-2950(J) provides that the failure to follow policies or procedures set forth in section 56-5-2950 will result in the exclusion from evidence of any tests results, “if the trial judge or hearing officer finds that this failure materially affected the accuracy or reliability of the test results or the fairness of the testing procedure....” S.C.Code Ann. § 56-5-2950(J) (Supp.2009).
Our court examined a violation of the implied consent statute's “in writing” requirement in Taylor v. South Carolina Department of Motor Vehicles, 368 S.C. 33, 627 S.E.2d 751 (Ct.App.2006) ( Taylor I ). Taylor heard his implied consent rights but neither read nor signed the implied consent form. Id. at 35, 627 S.E.2d at 752. This court noted Taylor needed to demonstrate both a violation of the implied consent statute and prejudice in order to warrant relief. Id. at 38, 627 S.E.2d at 754. We held Taylor was not prejudiced because “Taylor does not argue that he did not receive the implied consent rights, or that he would have provided a blood test if he had received the implied consent rights in writing.” Id.
Taylor appealed this court's decision to the South Carolina Supreme Court, which affirmed in Taylor v. South Carolina Department of Motor Vehicles, 382 S.C. 567, 677 S.E.2d 588 (20...
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