Sponar v. SC DEPT. OF PUBLIC SAFETY, 3847.

• Decision Date: 19 July 2004
• Docket Number: No. 3847.,3847.
• Parties: Timothy R. SPONAR, Respondent, v. SOUTH CAROLINA DEPARTMENT OF PUBLIC SAFETY, Appellant.
• Court: South Carolina Court of Appeals

361 S.C. 35

603 S.E.2d 412

Timothy R. SPONAR, Respondent, v. SOUTH CAROLINA DEPARTMENT OF PUBLIC SAFETY, Appellant.

No. 3847.

Court of Appeals of South Carolina.

Submitted May 12, 2004.

Decided July 19, 2004.

Withdrawn, Substituted, and Refiled September 23, 2004.

C. Cliff Rollins, of Blythewood; and Frank L. Valenta, Jr., of Columbia, for Appellant.

Stephan Victor Futeral, of Mt. Pleasant, for Respondent.

HUFF, J.:

Following his arrest for driving under the influence, Timothy R. Sponar refused to take a Datamaster test. Pursuant to this refusal, the Department of Public Safety (DPS) revoked Sponar's driver's license. Sponar requested an implied consent hearing, after which a DPS Administrative Hearing Officer upheld the suspension. Sponar then appealed this decision to the circuit court, which reversed the suspension. DPS now appeals arguing the circuit court erred by (1) improperly applying the standard of review to reverse the hearing officer's decision and (2) considering Sponar's state of mind at the time he refused to take the Datamaster test. We reverse and reinstate the suspension.

FACTUAL/PROCEDURAL BACKGROUND

On August 7, 2000, Officer C. Googe of the Mount Pleasant Police Department observed a vehicle traveling at 78 miles per hour in a 55 mile per hour zone and initiated a traffic stop. During the stop, Officer Googe noticed the driver, Sponar, smelled of alcohol and had glassy, bloodshot eyes and slurred speech.

Accordingly, the officer asked Sponar to exit the vehicle and complete a number of field sobriety tests. As Sponar could not properly perform any of the tests, the officer placed him under arrest, advised him of his Miranda¹ rights, and transported him to the Mount Pleasant Police Department where he then turned Sponar over to Officer Whitcomb for administration of a Datamaster test.²

Upon arrival at the police station, Officer Googe turned Sponar over to Officer Whitcomb so that he could administer the Datamaster test to determine if Sponar's blood alcohol level was within the legal limit. Officer Whitcomb explained to Sponar his Miranda rights and then advised him of his implied consent rights, reading them verbatim from the advisement form provided by SLED and providing him with a copy.

During a mandatory twenty-minute waiting period prior to administering the test, Sponar initiated conversation with the officer. Sponar repeatedly asked whether he should take the test or whether he should refuse, and asked the consequences of taking or refusing the test. Officer Whitcomb responded it was not his decision to make and that Respondent would have to decide on his own. Sponar asked whether he would still go to jail if he took the test, and the officer replied that it did not matter if he took the test or not, because he would be going to jail either way. Thereafter, Respondent refused to take the test.

Pursuant to this refusal, Officer Whitcomb completed a Notice of Suspension, and Sponar's driving privileges were suspended. Sponar requested an implied consent hearing and appealed the suspension of his driving privileges to DPS's Office of Administrative Hearings. Sponar argued at the hearing that Officer Whitcomb's statement — he would go to jail whether he took the test or not — had the effect of distorting his implied consent rights. He contended, because his implied consent rights were not properly given, the suspension should be reversed. On March 12, 2001, the administrative hearing officer issued an order sustaining the suspension. She noted the officer had read Sponar his rights verbatim, Sponar indicated he understood his rights, and it was only after that, while waiting during the observation period, that Sponar began questioning the officer about what would happen to him and Officer Whitcomb responded he would be taken to jail as part of their procedure whether he submitted to the test or not.

Respondent then appealed the hearing officer's ruling to the circuit court, which issued an order reversing the decision of the hearing officer. The circuit court judge noted, pursuant to S.C.Code Ann. § 1-23-380(a)(6), the court may reverse the decision of the administrative agency "if substantial rights of the Petitioner have been prejudiced for various reasons, including violations of constitutional or statutory provisions, errors of law, or arbitrariness or capriciousness." He determined, because § 56-5-2950(b)(1) of the South Carolina Code provides in pertinent part that if the alcohol level at the time of testing is "five one-hundredths of one percent or less, it is conclusively presumed that the person was not under the influence of alcohol," there was no legal basis to support the officer's statement to Sponar that he "was to be jailed `by law' regardless of his decision to submit to the breath test." S.C.Code Ann. § 56-5-2950(b)(1) (Supp.2003). He reasoned that if Sponar fell within this provision, the officer would have lacked probable cause to detain him for driving under the influence. Accordingly, the circuit court judge found the officer's instructions were erroneous and unlawfully suggested Sponar's decision to submit to the breath test "would largely be in vain." DPS argues this ruling was in error. We agree.

STANDARD OF REVIEW

Appeals from administrative agencies are governed by the Administrative Procedures Act (APA). Byerly Hosp. v. South Carolina State Health & Human Servs. Fin. Comm'n, 319 S.C. 225, 229, 460 S.E.2d 383, 385 (1995). The standard the circuit court uses to review such decisions is provided by section 1-23-380(6):

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.

S.C.Code Ann. § 1-23-380(A)(6) (Supp.2003). 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). An abuse of discretion occurs when a decision is controlled by an error of law or is without evidentiary support. Mictronics v. South Carolina Dep't of Revenue, 345 S.C. 506, 510, 548 S.E.2d 223, 225 (Ct.App.2001).

LAW/ANALYSIS

DPS argues the circuit court improperly applied the standard of review under the APA in reversing the decision of the administrative hearing officer. We agree.

The license to operate a motor vehicle upon the public highways of this state is not a property right, but is a mere privilege subject to reasonable regulations under the police power in the interest of the public safety and welfare. Such privilege is always subject to revocation or suspension for any cause relating to public safety. However, the privilege cannot be revoked arbitrarily or capriciously.

Summersell v. South Carolina Dep't of Pub. Safety, 334 S.C. 357, 366, 513 S.E.2d 619, 624 (Ct.App.1999) (citations omitted), vacated in part on other grounds, 337 S.C. 19, 522 S.E.2d 144 (1999).

At the hearing before the circuit court, Sponar's attorney argued that Sponar was improperly given his implied consent rights such that he was coerced into not taking the breath test. He asserted, had Sponar taken the test and obtained a reading below .05%, the police would have had no basis to continue his incarceration. Thus, he contended, because Sponar was told he was going to jail regardless of whether he submitted to the test, Sponar was coerced into not taking the test. The attorney for DPS countered that Sponar was not coerced in any way. He contended that some officers take the position that once an individual is arrested for DUI, that person is already under arrest and cannot be "un-arrest[ed]." Thus, this officer merely told Sponar the "truth" about the policy they followed.

In reversing the suspension, the circuit court determined there was no legal basis to support the officer's statement to Sponar that he "was to be jailed `by law' regardless of his decision to submit to the breath test." It relied on our Supreme Court's opinion in Town of Mount Pleasant v. Shaw, 315 S.C. 111, 432 S.E.2d 450 (1993) in finding the implied consent instructions given to Sponar were erroneous. In that case, Shaw was arrested and charged with DUI. Prior to administration of a breath test, Shaw was informed that if he did not take the test, his privilege to drive in South Carolina would be suspended for a ninety-day period. Shaw took the test, registering a .25% blood alcohol reading. Shaw appealed his subsequent magistrate court conviction and the circuit court reversed holding the implied consent advisory did not adequately inform him of his option to refuse the test. The Supreme...