Opinion
21-ALJ-21-0289-AP
06-22-2022
Kenneth Michael Williams, Appellant, v. South Carolina Department of Motor Vehicles, Respondent.
ORDER
SHIRLEY C. ROBINSON, Administrative Law Judge.
The Department did not comply with SCALC Rule 37 in providing a history of the proceedings necessary to the understanding of the appeal. While not required, a separate statement of facts relevant to the issues presented lor review would have been helpful in this case.
This matter is before the South Carolina Administrative Law Court (ALC or Court) in its appellate jurisdiction pursuant to subsection l-23-660(B). S.C. Code Ann. §§ l-23-660(B) (Supp. 2021). Kenneth Michael Williams (Appellant) seeks judicial review of a final decision rendered by the South Carolina Office of Motor Vehicle Hearings (OMVH) denying a request for a reduction of Appellant's habitual offender suspension. Upon careful consideration of the Record on Appeal (Record), arguments advanced in the parties' briefs, and the applicable law, the Court affirms the OMVH's Final Order and Decision.
BACKGROUND
Appellant was convicted of three "separate and distinct offenses" within a three-year period: (1) a conviction on March 17, 2015, for leaving the scene of an accident with bodily injury violation on February 6, 2015; (2) a conviction on January 16, 2016, for a driving under suspension violation on November 29, 2015; and (3) a conviction on December 13, 2017, for a driving under suspension violation on November 17, 2017.
Appellant's license was suspended for one year as a result of his conviction on March 17, 2015. While under suspension for this first conviction, Appellant was charged with driving under suspension on November 29. 2015; when convicted on January 16, 2016, his license was suspended for another year.
By letter dated December 18, 2017, Appellant was advised that he had been declared a habitual offender and his license was suspended for a five-year period from January 17, 2018, through January 17, 2023. On January 31, 2018, and while serving the habitual offender suspension, Appellant was charged with driving under suspension; on May 4, 2018, Appellant was convicted of this offense. On September 26, 2019, and also while serving the habitual offender suspension, Appellant was charged again with driving under suspension; on October 9, 2019, Appellant was convicted of this offense.
On February 23, 2021, Appellant completed a habitual offender reduction request form. On the form, Appellant indicated he had driven a motor vehicle during the habitual offender suspension period. By letter dated March 10, 2021, the Department advised Appellant he did not meet the statutory requirements for a reduction on the basis he had driven a motor vehicle while under suspension. On March 19, 2021, Appellant requested a contested case hearing before the South Carolina Office of Motor Vehicles (OMVH).
On June 10, 2021, the OMVH conducted a contested case hearing. Appellant appeared with counsel. The Department filed certified documents in lieu of appearing. On June 11, 2021, the OMVH issued a Final Order and Decision denying Appellant's request for a reduction of his habitual offender suspension period upon finding an absence of good cause. Specifically, the OMVH hearing officer concluded Appellant had continued to drive despite the imposition of his suspension and has been cited for driving under suspension two more times during the suspension period. The hearing officer further found Appellant had no personal circumstance that was not common to the general population.
On June 21, 2021, Appellant filed a Motion for Reconsideration of the OMVH's Final Order and Decision stating the hearing officer erred in concluding no good cause existed to reduce the suspension. Appellant also took issue with the hearing officer's conclusion that Appellant's excuse for driving under suspension (that Appellant had no one who could give him a ride) was not credible. Appellant also maintained there was nothing in the record to support the hearing officer's conclusion that taxis, Uber, Lyft, and/or public transportation were and had been available to Appellant. On June 28, 2021, the OMVH hearing officer issued an order amending his Final Order and Decision after having granted and denied Appellant's motion in parts. The order on the Motion for Reconsideration reaffirmed no good cause existed for the reduction of the suspension but the hearing officer did amend his order to remove the finding regarding Appellant's credibility as to the availability of lawful transportation. On July 28, 2021, Appellant filed a Notice of Appeal.
The OMVH hearing officer removed the following: "I do not find Petitioner's excuse for driving under suspension - that he had no one who could give him a ride - to be credible, as, at the very least, taxis, Uber, Lyft, and/or public transportation were and have been available to Petitioner.'' Appellant references this in his brief but again, the reference was removed by the hearing officer in the order on the Motion for Reconsideration.
STANDARD OF REVIEW
The OMVH is authorized by statute to determine contested cases including, inter alia, implied consent proceedings. S.C. Code Ann. § 1-23-660 (Supp. 2021). Therefore, the OMVH is an "agency" under the Administrative Procedures Act (APA). S.C. Code Ann. § 1-23-310(2) (Supp. 2021); S.C. Dep't of Motor Vehicles v. Holtzclaw, 382 S.C. 344, 347, 675 S.E.2d 756, 758 (Ct. App. 2009) ("[t]he DMVH [subsequently renamed OMVHJ is an agency under the [APA]."). Accordingly, the APA's standard of review governs appeals from its decisions. See S.C. Code Ann. §§ 1-23-380 and l-23-600(D) (Supp. 2021); Gibson v. Florence Country Club, 282 S.C. 384, 386, 318 S.E.2d 365, 367 (1984). When acting in its appellate capacity, the Court's review is generally limited to the Record on Appeal. S.C. Code Ann. § 1-23-380(4) (Supp. 2021); see also SCALC Rule 36(G) ("The Administrative Law Judge will not consider any fact which does not appear in the Record."). Additionally, subsection 1-23-380(5) of the South Carolina Code (Supp. 2021) provides the standard used by appellate bodies to review agency decisions. See S.C. Code Ann. § l-23-600(E) (Supp. 2021) (directing administrative law judges to conduct appellate review in the same manner prescribed in section 1-23-380). Pursuant to this standard:
The court may not substitute its judgment for the judgment 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. § l-23-380(5)(a)-(f) (Supp. 2021).
The South Carolina Supreme Court has observed that "[s]ubstantial evidence is not a mere scintilla; rather, it is evidence which, considering the record as a whole, would allow reasonable minds to reach the same conclusion as the agency." Friends of the Earth v. Pub. Serv. Commission of S.C., 387 S.C. 360, 366, 692 S.E.2d 910, 913 (2010) (citation omitted). See also Bilton v. Best Western Royal Motor Lodge, 282 S.C. 634, 641, 321 S.E.2d 63, 68 (Ct. App. 1984). A decision will not be set aside simply because reasonable minds may differ on the judgment. Lark v. Bi-Lo, Inc., 276 S.C. 130, 136, 276 S.E.2d 304, 307 (1981). The fact that the record, when considered as a whole, presents the possibility of drawing two inconsistent conclusions from the evidence does not prevent the agency's findings from being supported by substantial evidence. Waters v. S.C. Land Resources Conservation Comm'n, 321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996); Grant v. S.C. Coastal Council, 319 S.C. 348, 353, 461 S.E.2d 388, 391 (1995).
In applying the substantial evidence rule, the factual findings of the administrative agency are presumed to be correct. Rodney v. Michelin Tire Co., 320 S.C. 515, 519, 466 S.E.2d 357, 359 (1996) (citing Kearse v. State Health and Human Servs. Fin. Comm'n, 318 S.C. 198, 200, 456 S.E.2d 892, 893 (1995)). The party challenging an agency action has the burden of proving convincingly that the agency's decision is unsupported by substantial evidence. Waters, at 226, 467 S.E.2d at 917.
Nevertheless, this Court owes no particular deference to the fact finder when matters of law are at issue. See Flexon v. PHC-Jasper, Inc., 413 S.C. 561, 569, 776 S.E.2d 397, 402 (Ct. App. 2015) ("This court [Court of Appeals] reviews questions of law de novo.") (quoting Proctor v. Steedley, 398 S.C. 561, 573, 730 S.E.2d 357, 363 (Ct. App. 2012)). It is axiomatic that the ALC may reverse on errors of law. E.g., Olsen v. S.C. Dep't of Health &Envtl. Control, 379 S.C. 57, 63, 663 S.E.2d 497, 501 (Ct. App. 2008) (finding an appellate court can reverse a lower court's decision "[i]f the findings are affected by error of law, are not supported by substantial evidence, or are characterized by abuse of discretion or clearly unwarranted exercise of discretion."). If a decision is affected by an error of law, properly raised by a party, the Court will not hesitate to correct it. See also S.C. Dep't of Revenue v. Blue Moon of Newberry, 397 S.C. 256, 260, 725 S.E.2d 480, 483 (2012).
ISSUES
Whether the OMVH hearing officer violated the South Carolina Constitution or other state law by posing questions to Appellant during the contested case hearing.
Whether the Department's designation of Appellant as a habitual offender was preserved and if so, whether the designation was correct.
Whether Appellant preserved the issue of proper notice from the Department that he was in danger of being designated a habitual offender and from the county treasurer that his license was in danger of suspension for non-payment of property taxes.
Whether the OMVH hearing officer abused his discretion in finding Appellant failed to demonstrate good cause sufficient to reduce his habitual offender suspension.
DISCUSSION
A. The OMHV hearing officer did not violate the State constitution or other statutory provision of law by questioning Appellant
Article I, § 22 of the South Carolina State Constitution provides:
No person shall be finally bound by a judicial or quasi judicial decision of an administrative agency affecting private rights except on due notice and an opportunity to be heard; nor shall he be subject to the same person for both prosecution and adjudication; nor shall he be deprived of liberty or property unless by a mode of procedure prescribed by the General Assembly, and he shall have in all such instances the right to judicial review.S.C. Const, art. I, § 22. The purpose of this section is to ensure adjudications are conducted by impartial administrative bodies. Ross v. Med. Univ, of S.C., 328 S.C. 51, 69, 492 S.E.2d 62, 72 (1997). Appellant argues the hearing officer acted in an adversarial manner rather than an impartial one by questioning him during the contested case hearing in violation of Section 22. Appellant also argues the Rules of the South Carolina Office of Motor Vehicle Hearings do not provide a hearing officer with authority to examine a witness in the order of proceedings permitted.
As Appellant neither objected to the hearing officer's line of questioning during the hearing nor raised the issue in his Motion for Reconsideration, the issue is not preserved. S.C. Dep't of Transp. v. First Carolina Corp, of S.C., 372 S.C. 295, 301-302, 641 S.E.2d 903, 907 (2007) (to be preserved for appellate review, an issue must have been timely raised to the trial court with sufficient specificity and ruled upon). In his reply brief, Appellant referenced the futility doctrine which recognizes in circumstances where it would be futile to raise an objection to the trial judge, failure to raise the objection will be excused. State v. Passmore, 363 S.C. 568, 611 S.E.2d 273 (2005) (citing State v. Pace, 314 S.C. 71, 74,447 S.E.2d 186, 187 (1994) (finding "[a]s to counsel's failure to raise an objection, the tone and tenor of the trial judge's remarks concerning her gender and conduct were such that any objection would have been futile."). Even if the doctrine of futility was applicable, Appellant has not offered a reason as to why the matter was not raised in his Motion for Reconsideration.
Here, the hearing officer's questioning did not rise to the level of the comments made by the judge in State v. Pace and were not made before a jury. Also, this was not a situation in which an attorney was placed in a precarious position of having to repeatedly call the hearing officer's attention to his perceived errors.
South Carolina courts have noted that ordinarily the examination of witnesses should be left to counsel, but the trial judge has inherent authority and discretion to call witnesses and to examine witnesses called by a party. State v. Stroman, 281 S.C. 508, 316 S.E.2d 395 (1984); State v. Tillman, 255 S.C. 528, 180 S.E.2d 209 (1971); Elletson v. Dixie Home Stores, 231 S.C. 565, 99 S.E.2d 384 (1957); see also Rule 614(b), SCRE ("Interrogation by Court. When required by the interests of justice only, the court may interrogate witnesses."). As noted by Appellant's counsel in distinguishing caselaw cited by the Department, the primary purpose of the trial judge's questioning should be to clarify and promote a better understanding of the witness's testimony, to elicit the truth, and to cover matters omitted by inadvertence or any other cause. State v. Stroman, supra', Fowler v. Laney Tank Lines, Inc., 263 S.C. 422,211 S.E.2d 231 (1975). See also S.C. Dep't. of Social Services v. Ledford, 357 S.C. 371, 593 S.E.2d 175 (Ct. App. 2004) (the trial judge has the right, in his discretion, and in a proper manner, to question witnesses during a trial in order to elicit the truth). Here, Appellant had not yet testified.
The primary limitation on the trial judge's authority is that the questions must not unduly impress the jury with the importance of the witness's testimony and must not indicate the judge has any opinion on the facts of the case. See Day v. Kilgore, 314 S.C. 365, 444 S.E.2d 515 (1994) (in exercising discretion to question a witness, the trial judge must do so in an impartial manner that does not indicate the trial judge's opinion to the jury as to any fact or have an unintentional prejudicial effect); S.C. Dep 't of Social Services v. Ledford, supra (the foremost danger in a judge asking a witness questions is that the nature of the questioning might indicate to the jury how the judge feels about a particular witness's testimony or how the case itself should be resolved); Fowler v. Laney Tank Lines, Inc., supra (this discretion will not be controlled except where it appears that the manner in which the judge exercised the right tended to unduly impress the jury with the importance of the testimony elicited, or would be likely to lead the jury to suppose that the judge was of the opinion that one party rather than the other was correct upon a particular issue of fact).
Here, Appellant bore the burden of proving good cause existed for the reduction of suspension. The better practice would have been for the hearing officer to have permitted Appellant's counsel to first present his case before seeking clarification of evidence or solicit additional information necessary to the adjudication of the case inquiry. This is particularly the case whereas here, the Department's records and then the testimony elicited from Appellant by his counsel were sufficient to support the denial of a suspension. Appellant has shown no prejudice as there was no jury present. Also, the evidence submitted to the Department (that Appellant was twice convicted of driving under suspension while serving a habitual offender suspension) and Appellant's answers in response to his attorney were sufficient to support a finding that good cause did not exist to support a reduction.
B. Appellant's Designation as a Habitual Offender Is Not Preserved for Review
Appellant argues for the first time on appeal that he should not have been designated as a habitual offender because one of his underlying suspensions was the result of a suspension for failure to pay property taxes on a vehicle. Appellant provides a detailed legislative history of the driving under suspension and habitual traffic offender laws and submits the General Assembly "never contemplated including driving under suspension for failure to pay property taxes" as a suspension that counted toward a habitual offender designation. In response to the Department's argument that Appellant failed to preserve this issue, Appellant maintains the issue involves one of subject matter jurisdiction and can be raised at any time. The Court disagrees.
In his Motion for Reconsideration, Appellant did state in his "CONCLUSION" that his habitual offender status began after he was convicted of driving under suspension for non-payment of vehicle property taxes.
Subject matter jurisdiction is defined as "the power to hear and determine cases of the general class to which the proceedings in question belong." Skinner v. Westinghouse Elect. Corp., 380 S.C. 91, 93, 668 S.E.2d 795, 796 (2008). Appellant is correct that subject matter jurisdiction cannot be waived. Badeaux v. Davis, 337 S.C. 195, 522 S.E.2d 835 (Ct. App. 1999). Here, the OMVH and this Court have subject matter jurisdiction to hear contested cases and appeals, respectively, arising from decisions involving the issue of whether an individual is a habitual offender pursuant to subsections 56-1-1030(B) and l-23-660(D). S.C. Code Ann. § 1-23-660 (2021); S.C. Code Ann. § 56-1-1030 (2018).
(B) If the department determines the person is an (sic) habitual offender, the department shall give notice of its determination to the person and direct the person not to operate a motor vehicle on the highways of this State and to surrender his driver's license or permit to the department. The notice must provide that a person aggrieved by the department determination may file a request for a contested case hearing with the Office of Motor Vehicle Hearings in accordance with its rules of procedure. The Office of Motor Vehicle Hearings has exclusive jurisdiction to conduct these hearings.
(D) Appeals from decisions of the hearing officers must be taken to the Administrative Law Court pursuant to the court's appellate rules of procedure ...
Subsection 56-1 -1030(B) and OMVH Rule 4(B) state that unless otherwise provided by statute, a request for a contested case hearing must be filed within thirty days after actual notice of the Department's determination. Section 56-1-360 presumes once a notice concerning a person's driver's license is mailed in accordance with that statute, notice is complete ten days after the deposit of the notice in the United States mail regardless of whether it has been received by the addressee. Here, the notice is dated December 18, 2017. Assuming it was mailed on that date, notice would have been completed by December 28, 2017. Appellant would then have had thirty days or until January 27, 2018, to file a request for a contested case hearing with the OMVH.
The Record does not contain a certificate by the Department's director showing the notice was sent in accordance with section 56-1-360 but the Court would not expect there to be one as the issue was not one that was raised at the OMVH hearing. As such, the issue remains unpreserved.
Appellant's failure to request a contested case hearing before the OMVH after his designation as a habitual offender in 2017 deprived the OMVH hearing officer then also, this Court, of any procedural or appellate jurisdiction to review the matter. Skinner v. Westinghouse Elect. Corp., at 94, 668 S.E.2d at 796 ("The failure of a party to comply with the procedural requirements for perfecting an appeal may deprive the court of 'appellate' jurisdiction over the case, but it does not affect the court's subject matter jurisdiction.") (citing Great Games, Inc. v. S.C. Dep't of Revenue, 339 S.C. 79, 83 n. 5, 529 S.E.2d 6, 8, n. 5 (2000)). Also, it was not raised in Appellant's request for a contested case hearing filed on March 19, 2019, at the OMVH contested case hearing on June 10, 2021, or in the Motion for Reconsideration filed on June 21, 2021. This Court has no authority to expand the time within which Appellant had to request a contested case hearing once he was designated as a habitual offender. See Mears v. Mears, 287 S.C. 168, 169, 337 S.E.2d 206, 207 (1985) ("Service of the notice of intent to appeal is a jurisdictional requirement, and this Court has no authority to extend or expand the time in which the notice of intent to appeal must be served.").
The only issue raised was that pertaining to whether good cause existed to reduce Appellant's suspension. Even if the issue had been raised, it would still have been untimely.
Even if the issue was properly before this Court, it would fail. Section 56-1-1020 defines a habitual offender as" ... any person whose record as maintained by the Department of Motor Vehicles shows that he has accumulated the convictions for separate and distinct offenses described in subsections (a), (b) and (c) during a three-year period." S.C. Code Ann. § 56-1-1020 (2018). "Driving a motor vehicle while [one's] license, permit, or privilege to drive a motor vehicle has been suspended or revoked, except a conviction for driving under suspension for failure to file proof of financial responsibility," is included in the list of enumerated offenses for which one's license can be suspended. S.C. Code Ann. § 56-l-1020(a)(4) (2018). There is no statutory exception for habitual offender status designation for driving under suspension convictions as a result of non-payment of property taxes although there is a specific exception for suspension convictions for failing to provide proof of financial responsibility.
Subsection 12-37-2740(A) mandates the Department suspend the driver's license and vehicle registration of a person who fails to pay personal property taxes on a vehicle. S.C. Code Ann. § 12-37-2740 (2014).
The cardinal rule of statutory construction is to ascertain and effectuate the intent of the legislature. Hodges v. Rainey, 341 S.C. 795, 533 S.E.2d 578 (2000). "What a legislature says in the text of a statute is considered the best evidence of the legislative intent or will. Therefore, the courts are bound to give effect to the expressed intent of the legislature." Hodges v. Rainey, 341 S.C. at 85, 533 S.E.2d at 581 (quoting Norman J. Singer, Sutherland Statutory Construction § 46.03 at 94 (5th ed. 1992). Whereas here, the statutes are clear on their face, there is no need to turn to the rules of statutory interpretation to glean an alternative meaning. Appellant notes the statutes are contained in two different titles but it is presumed that the legislature is familiar with its prior legislation. Hodges v. Rainey, 341 S.C. at 88-89, 533 S.E.2d at 583.
C. Lack of Notice is Not Preserved for Review
For the first time on appeal, Appellant argues the Department failed to comply with mandatory notice provisions of section 56-1-1130 and subsection 12-37-2740(A). S.C. Code Ann. § 12-37-2740 (2014); S.C. Code Ann. § 56-1-1130 (2018). Section 56-1-1130 states, "The Department of Motor Vehicles shall send a written notice to any person who it determines is in danger of becoming a habitual offender." Subsection 12-37-2740(A) provides:
(A) The Department of Motor Vehicles shall suspend the driver's license and vehicle registration of a person who fails to pay personal property tax on a vehicle.
The request to suspend must be an electronic notification from the county treasurer of the county in which the tax is delinquent. Before the electronic notification is sent to the Department of Motor Vehicles, the county treasurer shall notify the delinquent taxpayer of the pending suspension by letter. The letter must be developed by the county treasurers in conjunction with the Department of Motor Vehicles and used uniformly throughout the State. The letter must advise the person of the pending suspension and the steps necessary to prevent the suspension from being entered on the person's driving and registration records. A county must allow thirty days for the payment of taxes before the county notifies the Department of Motor Vehicles to suspend the person's driver's license and vehicle registration.
Appellant states it was the Department's burden of proof at the hearing to establish it complied with both notice provisions, and that nothing in the record indicates Appellant ever received notice from the Department that he was in danger of being declared a habitual offender, or from the county treasurer that his license was going to be suspended for non-payment of property taxes.
The issue is not properly preserved. Appellant did not raise it at the contested case hearing or in his Motion for Reconsideration. S.C. Dep't of Transp. v. First Carolina Corp, of S.C., supra. Second, the notice provisions are relevant to Appellant's designation as a habitual offender and not whether his suspension should be reduced. As discussed immediately above, Appellant never requested review of his initial designation as a habitual offender in 2017. The only issue before the OMVH hearing officer was whether Appellant's suspension should be reduced, and not the propriety of the underlying suspension.
As an aside, this is probably why there are no documents relevant to this issue in the Record.
D. The OMVH Hearing Officer did Not Abuse his Discretion in Finding that No Good Cause Existed to Support a Reduction in Appellant's Suspension
The term "good cause," has been defined as "[a] legally sufficient ground or reason." Black's Law Dictionary (11th ed. 2019). In various contexts, courts have found that "good cause" requires more than personal circumstances or facts that are common to the population in general. See e.g., Faile v. S.C. Emp't Sec. Comm'n, 267 S.C. 536, 541-42, 230 S.E.2d 219, 222-23 (1976). Furthermore, a determination of whether "good cause" exists may require a balancing of the needs of the parties and public policy. See, e.g., Doe v. Ward Law Firm, 353 S.C. 509, 514-15, 579 S.E.2d 303, 305 (2003).
Appellant argues the hearing officer abused his discretion in failing to find "good cause" to restore Appellant's driving privileges. "An abuse of discretion occurs where the trial judge['s decision] was controlled by an error of law or when grounded in factual conclusions, is without evidentiary support..." Law v. S.C. Dep'tof Corr., 368 S.C. 424,438, 629 S.E.2d 642, 650 (2006); Clark v. Cantrell, 339 S.C. 369, 529 S.E.2d 528 (2000). Here, each of the arguments raised by Appellant were addressed by the hearing officer and are supported by evidence in the record.
First, Appellant argues "his driving record establishes compliance with the majority of conditions shown in subsection (A)(1) in that he has no prior habitual offender suspension in this or another state; has not been convicted of any alcohol or drug violations during the suspension period; and has no other license suspensions that have not reached their end date. Second, Appellant submits good cause exists for the reinstatement of his license as his career development is being adversely impacted. Appellant is employed as a forklift operator in Charleston, South Carolina and the reinstatement of his license would help him secure a promotion to "Yard Dog Operator." Third, Appellant states additional good cause exists for relief in that a license would enable to him to transport his children to and from day care. Fourth, Appellant argues he had demonstrated good cause through his honest and credible testimony. Lastly, Appellant maintains he has shown good cause in that a reduction would not create a danger to others' safety in that he seeks to comply with State law going forward.
Here, there can be no abuse of discretion given there were no legal errors and Appellant has not shown that the hearing officer's findings as amended are without evidentiary support. In support of his finding an absence of good cause, the hearing officer stated:
1. "Two of the offenses leading to that suspension were for DUS. Despite the imposition of this suspension, most of which was for DUS, Petitioner has continued driving, being cited two more times for DUS during the habitual offender suspension."
2. "Petitioner has admittedly continued to drive to work and to take his children to daycare [after his license was suspended]."
3. "Petitioner clearly does not appreciate the seriousness of a habitual offender suspension."
4. "Petitioner was very honest and candid about his driving and has appeared to have paid off the numerous outstanding fees owed for various violations. However, the fact that Petitioner had so many violations to pay for is telling, and his continued driving demonstrates a careless attitude towards his habitual offender suspension."
5. "On January 31, 2018, while serving the habitual offender suspension, Petitioner was issued a citation for DUS, of which he was convicted on May 4, 2018. On September 26, 2019, also while serving the habitual offender suspension, Petitioner was issued another citation for DUS, of [sic] which was on October 9, 2019."
6. "[I] detected no contrition regarding his DUS violations ..."
As to Appellant's argument his career development is being hampered by not having a motor vehicle license, the hearing officer held there was no evidence in the record other than Appellant's conjectural testimony he would be promoted to "Yard Dog" if his license was reinstated. The hearing officer noted Appellant only testified to having the potential to advance in his work position. (Emphasis in original). The Court agrees.
As to Appellant's argument he complied with the majority of the provisions of subsection 56-1-1090(A), the hearing officer noted Appellant did not comply with subsections 56-1-1020(A)(1)(b) ("the person must not have driven a motor vehicle during the habitual offender suspension period") and 56-l-1090(A)(l)(d) ("the person must not have been convicted of or have charges pending for any offense listed in Section 56-1-1020 committed during the habitual offender period."). The hearing officer continued by stating he would not reward a driver with a reduction in suspension for continued violation of the terms of the suspension which was the very activity that led to the suspension.
ORDER
There being no error or law or abuse of discretion, IT IS HEREBY ORDERED that the Final Order and Decision of the Office of Motor Vehicle Hearings is AFFIRMED.
AND IT IS SO ORDERED.