Peake v. Dept. of Motor Vehicles

• Citation: 654 S.E.2d 284,375 S.C. 575
• Decision Date: 27 November 2007
• Docket Number: No. 4313.,4313.
• Parties: John D. PEAKE, Appellant, v. SOUTH CAROLINA DEPARTMENT OF MOTOR VEHICLES, Respondent.
• Court: South Carolina Court of Appeals

654 S.E.2d 284

375 S.C. 575

John D. PEAKE, Appellant, v. SOUTH CAROLINA DEPARTMENT OF MOTOR VEHICLES, Respondent.

No. 4313.

Court of Appeals of South Carolina.

Heard November 6, 2007.

Decided November 27, 2007.

Timothy Clay Kulp, of Charleston, for appellant.

Frank L. Valenta, Jr., of Blythewood, and Philip S. Porter, of Columbia, for respondent.

ANDERSON, J.:

Following a single car accident, John D. Peake (Peake) was arrested at the hospital for driving under the influence. He refused to consent to a blood alcohol test and, as a result, the South Carolina Department of Motor Vehicles (the Department) suspended his driver's license. The suspension was affirmed at an administrative hearing and on appeal to the circuit court. We reverse.

FACTUAL/PROCEDURAL BACKGROUND

On February 5, 2005, Trooper J.T. Manley of the South Carolina Highway Patrol responded to a one car accident on I-26 in Charleston County. He found Peake, the sole occupant of the wrecked car, buckled into the driver's seat. As Trooper Manley spoke with Peake, he observed a strong smell of alcohol on Peake's breath and noted his slurred speech. EMS arrived shortly after Trooper Manley and transported Peake to Trident Regional Medical Center. At the hospital, Trooper Manley placed Peake under arrest for driving under the influence. Peake was read the Miranda rights and the Advisement of Implied Consent Rights. Trooper Manley then requested Peake provide a blood sample believing Peake's condition precluded a breath test. Peake stated he understood his implied consent rights and refused to submit a blood sample. Trooper Manley then issued Peake a Notice of Suspension which Peake refused to sign.

After receiving the Notice of Suspension, the Department suspended Peake's license for ninety days. Peake requested an administrative hearing pursuant to South Carolina Code section 56-5-2951(B)(2) (2006). At the April 26, 2005, hearing, Trooper Manley appeared and testified on behalf of the Department. He said he requested the blood sample because Peake was "not able to give a breath sample due to his condition." The record contains no explanation of Peake's condition. Peake did not appear though he was represented by counsel. Peake's counsel did not cross-examine Trooper Manley but asserted the mandatory suspension should be rescinded because the Department did not show medical personnel deemed Peake unable to give a breath sample in accordance with South Carolina Code section 56-5-2950(a). The hearing officer's order sustained the suspension reasoning "[Peake] verbally refused to give a blood or urine sample, as he was unable to give a breath sample."

Peake next appealed to the Court of Common Pleas in Charleston County where he complained Trooper Manley's testimony did not justify the request for a blood sample. Peake contended section 56-5-2950(a) requires law enforcement to seek the opinion of a medical professional that a person is incapable of providing a breath test. The Department argued Peake was improperly shifting the burden of proof, the Department's actions were presumably correct pursuant to the Administrative Procedures Act, and the record's substantial evidence supported the hearing officer's findings.

In its written order, the circuit court interpreted section 56-5-2950(a) to "require the opinion of a medical professional if the subject is unable to give a breath sample for some reason outside those enumerated by the statute (e.g. injured mouth, unconscious, dead)." However, the judge then affirmed the suspension concluding "under these facts, the officer was not required to seek the opinion of a medical professional as to Petitioner's ability to give a breath sample."

STANDARD OF REVIEW

The South Carolina Administrative Procedures Act, S.C.Code Ann. section. 1-23-310, et seq., (2005), establishes the "substantial evidence" rule as the standard for judicial review of a decision of an administrative agency. Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981); Summersell v. South Carolina Dep't of Public Safety, 334 S.C. 357, 513 S.E.2d 619 (Ct.App.1999), vacated in part on other grounds, 337 S.C. 19, 522 S.E.2d 144 (1999). Section 1-23-380(A)(5) of the South Carolina Code (Supp.2006) provides:

The court may not substitute its judgment for the judgment 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;

(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.

The findings of an administrative agency are presumed correct and will be set aside only if unsupported by substantial evidence. Kearse v. State Health & Human Servs. Fin. Comm'n, 318 S.C. 198, 200, 456 S.E.2d 892, 893 (1995); South Carolina Dep't of Motor Vehicles v. Nelson, 364 S.C. 514, 519, 613 S.E.2d 544, 547 (Ct.App.2005); Broughton v. South of the Border, 336 S.C. 488, 496, 520 S.E.2d 634, 637 (Ct.App.1999). "A court cannot substitute its judgment for that of an agency as to the weight of the evidence on questions of fact unless the agency's findings are clearly erroneous in view of the reliable probative and substantial evidence on the whole record." Summersell, 334 S.C. at 363, 513 S.E.2d at 622; see also Rodney v. Michelin Tire Corp., 320 S.C. 515, 466 S.E.2d 357 (1996). "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 administrative agency reached in order to justify its action." Nelson, 364 S.C. at 519, 613 S.E.2d at 547; see also Palmetto Alliance, Inc. v. South Carolina Public Serv. Comm'n, 282 S.C. 430, 432, 319 S.E.2d 695, 696 (1984) (declaring substantial evidence is something less than weight of evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence). The circuit court essentially sits as an appellate court in reviewing an administrative agency's final decision for alleged errors. Kiawah Resort Assocs. v. South Carolina Tax Comm'n, 318 S.C. 502, 458 S.E.2d 542 (1995); Nelson, 364 S.C. at 519, 613 S.E.2d at 547.

LAW/ANALYSIS

The issue in this case is whether the circuit court erred in finding Trooper Manley properly requested a blood test despite the absence of any opinion by licensed medical personnel that Peake was unable to provide a breath sample as required by the implied consent statute. We find no substantial evidence establishing Trooper Manley's compliance with the procedure mandated in section 56-5-2950(a).

I. The Implied Consent Statute

Being licensed to operate a motor vehicle on the public highways of this state is not a property right, but is merely a privilege subject to reasonable regulations under the police power in the interest of the public safety and welfare. State v. Collins, 253 S.C. 358, 170 S.E.2d 667 (1969); Summersell v. South Carolina Dep't of Public 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). The privilege may be revoked or suspended for any cause relating to public safety, but it cannot be revoked arbitrarily or capriciously. Taylor v. South Carolina Dep't of Motor, 368 S.C. 33, 36, 627 S.E.2d 751, 753 (Ct.App.2006) cert. granted; Sponar v. South Carolina Dep't of Pub. Safety, 361 S.C. 35, 39, 603 S.E.2d 412, 415 (Ct.App.2004). "As part of this privilege, individuals operating motor vehicles implicitly consent to chemical tests of their breath, blood, or urine to determine whether they are under the influence of drugs or alcohol." Taylor, 368 S.C. at 36-37, 627 S.E.2d at 753. S.C.Code Ann. § 56-5-2950 (2006).

Section 56-5-2950(a) states 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. 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.

...

No test 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...