South Carolina Department of Motor Vehicles, Appellant, v. Josef Scott Holtzclaw, Respondent

Dec 11, 2008

OUTCOME: Dismissal Affirmed

Holtzclaw was convicted of three separate traffic violations[1] for driving an automobile under a suspended license. Pursuant to sections 56-1-1020 and 56-1-1090 of the South Carolina Code (2006 & Sup ... p. 2008), DMV sent Holtzclaw an official notice that, because he had accumulated three violations within a three year period, Holtzclaw had been declared a Habitual Offender, and his driver's license was suspended for five years. DMV also advised Holtzclaw that, pursuant to section 56-1-1030 of the South Carolina Code (Supp. 2007), he had the right to a hearing to present cause why he should not be declared a Habitual Offender. Two days before Holtzclaw's suspension was due to begin, he sent notice to the DMVH requesting a hearing. On the following day, Holtzclaw made a motion in municipal court to have the most recent conviction reopened in order to have a new hearing.[2] The municipal court granted Holtzclaw's motion to reopen the conviction on Ticket 32881DE on the ground that Holtzclaw "was uninformed of the ramifications of entering a plea without consultation with his attorney." The prosecuting attorney, who was present at Holtzclaw's motion, consented to the reopening, as indicated by the signature on the order. The order also indicated it was issued pursuant to Ishmell v. South Carolina Highway Department, 264 S.C. 340, 215 S.E.2d 201 (1975). Upon receipt of the municipal court's order to reopen the last ticket, the DMV replied directly to the judge in a letter, stating: "The Department is in receipt of the attached order(s), however, we are unable to process the order due to the following: . . . The request to re-open the case does not appear to be timely." The municipal court did not respond to the DMV's communication. Thereafter, the DMVH held a hearing pursuant to Holtzclaw's request. Holtzclaw testified in support of his motion, and also introduced the municipal court's order reopening his final conviction. Ultimately, the DMVH Hearing Officer rescinded Holtzclaw's driving suspension and found his driving record did not support the requirements for a Habitual Offender because the requisite third conviction for driving on a suspended license was nullified when the municipal court re-opened Holtzclaw's final ticket. DMV appealed the Hearing Officer's order to the ALC, which dismissed the appeal. DMV now appeals this determination.