October 2, 2017
From The Administrative Law Court Deborah Brooks Durden,
Administrative Law Judge
L. Valenta, Jr., Philip S. Porter, and Brandy Anne Duncan,
all of Blythewood, for Appellant.
Michelle Dover, of York, pro se.
South Carolina Department of Motor Vehicles (the DMV) appeals
the administrative law court's (ALC's) determination
that Michelle Dover's reckless driving conviction in
Virginia did not constitute a major violation requiring her
driver's license to be suspended under the habitual
offender statute. We affirm as modified.
was convicted in South Carolina for driving under suspension
(DUS) on August 14, 2012. Additionally, she pled guilty to
driving under the influence (DUI) in South Carolina on August
12, 2014. On May 3, 2015, Dover was ticketed in Virginia for
reckless driving. On July 21, 2015, she was convicted of the
charge but did not appear before the Virginia court. Virginia
reported this violation to the DMV on August 10, 2015, as
"RECKLS DRV-SPEEDING EXCESS OF 80MPH-MISD" and with
the "ACD Code" of "M84." The American
Association of Motor Vehicle Administrators (AAMVA)
Violations Exchange Code Dictionary (ACD) provides that M84
is the code for "reckless driving." 23 C.F.R. pt.
1327, app. A (2017). The DMV did not receive a copy of
Dover's actual ticket.
applied the Virginia conviction to Dover's driving record
as a conviction for reckless driving, determined this was her
third major violation, and suspended her license due to it
finding she met the requirements for being a habitual
offender. Dover requested a contested case hearing with the
Office of Motor Vehicles Hearings (OMVH), contending she
should have been charged with speeding, not reckless driving,
in Virginia. At the hearing, Dover did not dispute her two
prior South Carolina convictions. She indicated that when she
received the ticket in Virginia, she was driving ten miles
over the speed limit and "was with the flow of
the hearing, the OMVH hearing officer rescinded Dover's
suspension. The hearing officer determined because reckless
driving was not listed as an offense in section 56-1-650 of
the South Carolina Code, section 56-1-320 of the South
Carolina Code applied. The hearing officer determined the
behavior for which Dover was convicted in Virginia, if she
had committed it in South Carolina, would not have fallen
under South Carolina's reckless driving statute. The
hearing officer therefore found the DMV erred in using the
conviction as a third major conviction to suspend Dover's
appealed to the ALC. The DMV argued the hearing officer erred
in finding the DMV had made a discretionary decision to
suspend Dover's license under section 56-1-320. It
contended Dover's license was required to be suspended
pursuant to section 56-5-1030. It also maintained it could
rely on Virginia's categorization of the offense using
the ACD Code for reckless driving.
affirmed the hearing officer's ruling as modified. It
determined the hearing officer erred in finding the DMV's
decision to suspend Dover's license was discretionary.
The ALC also found the Virginia conviction was added to
Dover's driving record pursuant to section 56-1-790 under
a reciprocal agreement. The ALC held South Carolina law
requires "an out-of-state offense must be recorded as if
it were a conviction under South Carolina law." It
determined that because Dover asserted she was only going ten
miles per hour over the speed limit, she would have been
charged with speeding in South Carolina, not reckless
driving. Therefore, it found the hearing officer did not err
in determining the DMV incorrectly suspended Dover's
license. This appeal followed.
OMVH has exclusive jurisdiction over contested cases
involving habitual offenders. Decisions by the OMVH hearing
officer must be appealed to the ALC." Davis v. S.C.
Dep't of Motor Vehicles, 420 S.C. 98, 102, 800
S.E.2d 493, 495 (Ct. App. 2017) (citation omitted). "The
[O]MVH is authorized to hear contested cases from the [DMV].
Thus, the [O]MVH is an agency under the Administrative
Procedures Act." S.C. Dep't of Motor Vehicles v.
McCarson, 391 S.C. 136, 144, 705 S.E.2d 425, 429 (2011)
(citations omitted). "Section 1-23-610 of the South
Carolina Code [(Supp. 2017)] sets forth the standard of
review when the court of appeals is sitting in review of a
decision by the ALC on an appeal from an administrative
agency." S.C. Dep't of Motor Vehicles v.
Holtzclaw, 382 S.C. 344, 347, 675 S.E.2d 756, 758 (Ct.
The review of the [ALC]'s order must be confined to the
record. The court may not substitute its judgment for the
judgment of the [ALC] as to the weight of the evidence on
questions of fact. The court of appeals may affirm the
decision or remand the case for further proceedings; or, it
may reverse or modify the decision if the substantive rights
of the petitioner have been prejudiced because the finding,
conclusion, or decision is:
(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 ...