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South Carolina Department of Motor Vehicles v. Dover

Court of Appeals of South Carolina

March 21, 2018

South Carolina Department of Motor Vehicles, Appellant,
v.
Michelle Dover, Respondent. Appellate Case No. 2016-001030

          Heard October 2, 2017

         Appeal From The Administrative Law Court Deborah Brooks Durden, Administrative Law Judge

          Frank L. Valenta, Jr., Philip S. Porter, and Brandy Anne Duncan, all of Blythewood, for Appellant.

          Michelle Dover, of York, pro se.

          KONDUROS, J.

         The 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.

         FACTS

         Dover 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.[1]

         The DMV 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 traffic."

         Following the hearing, the OMVH hearing officer rescinded Dover's suspension.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.[2] 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 license.

         The DMV 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.

         The ALC 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.

         STANDARD OF REVIEW

         "The 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. App. 2009).

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 ...

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