S.C. Dept. of Motor Vehicles v. Nelson

• Citation: 613 S.E.2d 544
• Decision Date: 23 May 2005
• Docket Number: No. 3991.,3991.
• Court: United States State Supreme Court of South Carolina
• Parties: S.C. DEPARTMENT OF MOTOR VEHICLES (formerly Public Safety), Appellant, v. Danny Joe NELSON, Respondent.

613 S.E.2d 544

S.C. DEPARTMENT OF MOTOR VEHICLES (formerly Public Safety), Appellant, v. Danny Joe NELSON, Respondent.

No. 3991.

Court of Appeals of South Carolina.

Submitted May 1, 2005.

Decided May 23, 2005.

Patrick M. Teague, and Frank L. Valenta, Jr., of Columbia, for Appellant.

Danny Joe Nelson, of Fountain Inn, Pro Se Respondent.

ANDERSON, J.

Danny Joe Nelson was arrested for driving under the influence. Nelson refused to consent to a breath test offered nearly five hours after his arrest. As a result, the South Carolina Department of Motor Vehicles (the Department), formerly the Department of Public Safety, suspended Nelson's driver's license. The circuit court reversed, finding the Department failed to videotape Nelson's breath test within three hours of arrest as required by law. The Department appeals the circuit court's decision. We reverse.¹

FACTUAL/PROCEDURAL BACKGROUND

On December 10, 2002, Deputy Jason Wilson of the Spartanburg County Sheriff's Department was on routine patrol in Duncan, South Carolina. He observed a vehicle driving erratically and crossing back and forth over the center line. The car, which Nelson was driving, turned left onto Berry Shoals Road and attempted to make a U-turn. Deputy Wilson stopped the vehicle. He found that Nelson's speech was slurred and he smelled of alcohol. Nelson admitted he had been drinking. Deputy Wilson asked Nelson to get out of the car, and he conducted several field sobriety tests, which Nelson failed.

Nelson was placed under arrest at 8:36 p.m. for driving under the influence. Deputy Wilson read Nelson his Miranda rights and his section 56-5-2934 advisement and placed him in the patrol car. Officer Piggins arrived at the scene at that time. Nelson began complaining of asthma and asked for his inhaler. Deputy Wilson was unable to locate an inhaler in Nelson's car, but he did find an open bottle of vodka and four other open bottles of liquor. An ambulance was called to the scene; the emergency medical technician checked Nelson and reported that he was fine.

Deputy Wilson took Nelson to the Detention Center, but had to leave him with Officer Piggins because Wilson's house was on fire. While Deputy Wilson was gone, Nelson again complained of asthma and asked to be taken to the hospital. Officer Piggins complied with Nelson's request.

When they returned to the Detention Center, Nelson was offered a DataMaster test. Officer K.D. Green advised Nelson of his implied consent rights both orally and in writing and told Nelson that the testing was being videotaped. The machine was working properly, and Officer Green followed procedure in preparing to administer the test. At 1:20 a.m., Nelson refused to give a sample.

Deputy Wilson returned to the Detention Center and found Nelson again complaining of asthma and requesting a blood test. Deputy Wilson transported Nelson to the hospital a second time, but the hospital refused to conduct a blood test because Nelson did not have cash to pay for it.

The Department suspended Nelson's driver's license. Nelson requested an administrative hearing pursuant to S.C.Code Ann. section 56-5-2951(B) (Supp.2002). The hearing officer upheld the suspension in accordance with S.C.Code Ann. section 56-5-2951 (Supp.2002) for failure to consent to drug and alcohol testing. The circuit court reversed, concluding the breath test was not offered within three hours of arrest as required by section 56-5-2953 (Supp.2002).

STANDARD OF REVIEW

The South Carolina Administrative Procedures Act, S.C.Code Ann. sections 1-23-310 to -400 (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, 135, 276 S.E.2d 304, 306-07 (1981). Section 1-23-380(A)(6) of the South Carolina Code (2005) provides as follows:

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;

(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); Broughton v. South of the Border, 336 S.C. 488, 496, 520 S.E.2d 634, 637 (Ct.App.1999). "A court may not 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 v. South Carolina Dept. of Public Safety, 334 S.C. 357, 363, 513 S.E.2d 619, 622 (Ct.App.1999), vacated in part on other grounds, 337 S.C. 19, 522 S.E.2d 144 (1999); accord Rodney v. Michelin Tire Corp., 320 S.C. 515, 519, 466 S.E.2d 357, 359 (1996); Hargrove v. Titan Textile Co., 360 S.C. 276, 289, 599 S.E.2d 604, 610 (Ct.App.2004). 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. Miller v. State Roofing Co., 312 S.C. 452, 454, 441 S.E.2d 323, 324-25 (1994); Stokes v. First Nat'l Bank, 306 S.C. 46, 50, 410 S.E.2d 248, 251 (1991); 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 that 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). In reviewing a final decision of an administrative agency, the circuit court essentially sits as an appellate court to review alleged errors committed by the agency. Kiawah Resort Assocs. v. South Carolina Tax Comm'n, 318 S.C. 502, 505, 458 S.E.2d 542, 544 (1995); see also Byerly Hosp. v. South Carolina State Health and Human Servs. Finance Comm'n, 319 S.C. 225, 229, 460 S.E.2d 383, 385-86 (1995) (holding that a decision of an administrative agency must be affirmed if it is supported by substantial evidence, and a reviewing court may not substitute its judgment for that of the agency on questions of fact).

LAW/ANALYSIS

I. Implied Consent Statute

The issue in this case is whether the failure to comply with the videotaping requirements of section 56-5-2953 precludes the Department from suspending Nelson's license for his refusal to submit to a breath test under section 56-5-2950.

"Pursuant to § 56-5-2950, a person driving a motor vehicle in South Carolina is deemed to have consented to a chemical test of his breath, blood, or urine if arrested for an offense arising out of acts alleged to have been committed while under the influence of alcohol, drugs, or a combination of the two." State v. Long, 363 S.C. 360, 362, 610 S.E.2d 809, 811 (2005). South Carolina Code Annotated section 56-5-2950 (Supp.2002)² provides:

(a) 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 both of them. 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 them. 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 or 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 ten one-hundredths of one percent or above, the officer may not require additional tests of the person as provided in this chapter. The breath test must be administered by a person trained and certified by the department, pursuant to SLED policies. The arresting officer may administer the tests if the person's conduct during the twenty-minute pre-test waiting period is videotaped pursuant to Section 56-5-2953(A)(2)(d). Before the breath test is administered, a ten one-hundredths of one percent simulator test must be performed and the result must reflect a reading between 0.095 percent and 0.105 percent. Blood and urine samples must be obtained by physicians licensed by the State Board of Medical Examiners, registered nurses licensed by the State Board of Nursing, and other medical personnel trained to obtain the samples in a licensed medical facility. Blood and urine samples must be obtained and handled in accordance with procedures approved by...