South Carolina Dept. of Highways and Public Transp. v. Dickinson, 22483
| Decision Date | 21 January 1986 |
| Docket Number | No. 22483,22483 |
| Court | South Carolina Supreme Court |
| Parties | SOUTH CAROLINA DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION, Appellant, v. Richard William DICKINSON, Respondent. . Heard |
William L. Todd, Columbia, for appellant.
John R. Clarke, North Myrtle Beach, for respondent.
The respondent had his driver's license suspended due to his failure to take the breathalyzer test. The hearing officer for the South Carolina Department of Highways and Public Transportation (the Department) sustained the suspension. The circuit court reversed. We affirm the order of the circuit court.
On June 16, 1983 respondent Dickinson was arrested for DUI. He was carried to the police department and offered a breathalyzer test. Due to the respondent's failure to take this test, the Department suspended his driver's license. By letter dated July 11, 1983, respondent requested a hearing pursuant to S.C.Code Ann. § 56-5-2950 (1976). This hearing on whether or not the respondent had failed to comply with the implied consent law was held fifty-eight (58) days later on September 7, 1983. The hearing officer sustained the suspension of the respondent's license.
On October 31, 1983, the suspension of respondent's license was stayed pending appeal. The appeal was heard in the circuit court on March 26, 1984. The circuit court reversed the Department's decision and reinstated the respondent's license. The Department appealed the circuit court's decision.
The relevant portion of S.C.Code Ann. § 56-1-370 (Supp.1984) provides that "[t]he licensee may, within ten days after notice of suspension ... request in writing a review and upon receipt of such request the Department shall afford him a review, as early as practicable within twenty days after receipt of such request...." (emphasis added). It is uncontested that respondent was not granted a hearing within twenty (20) days after the Department received his request. The pivotal question in determining whether the Department had jurisdiction at the time it conducted the hearing is whether the word "shall" as used in the statute is directory or mandatory. The Department contends that the circuit court erred in finding the word "shall" to be mandatory.
The statute clearly mandates that a hearing shall be afforded within twenty (20) days after receipt of a request for a hearing. Ordinarily, the use of the word "shall" in a statute means that the action referred to is mandatory. Montgomery v. Keziah, 277 S.C. 84, 282 S.E.2d 853 (1981). Since the twenty (20) day time period is mandatory, the Department lacked jurisdiction to hold the implied consent hearing. 1
This Court recognizes that twenty (20) days seems to be an unreasonably short time period in which to receive a request, issue notice, and conduct a hearing. Although not raised in this appeal, we note that the twenty (20) day time limit conflicts with the thirty (30) day notice requirement provided for in the Administrative Procedure Act, S.C.Code Ann. § 1-23-320(a) (Supp.1985).
The Supreme Court's primary function in interpreting a statute is to ascertain the intention of the legislature. Anders v. South Carolina Parole and Community Corrections Board, 279 S.C. 206, 305 S.E.2d 229 (1983). Where the terms of a statute are clear and unambiguous,...
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