THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Respondent

v.

Robert Lee Bacote, Petitioner.

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

Appeal From Berkeley County

Hicks B. Harwell, Jr., Judge

Opinion No. 24794

Heard April 21, 1998 - Filed June 1, 1998

AFFIRMED

Stephen P. Groves, Sr., and Stephen L. Brown,

both of Young, Clement, Rivers & Tisdale, L.L.P., of

Charleston; and Reese 1. Joye and John L.

Drennan, both of Joye Law Firm, L.L.P., of North

Charleston, for petitioner.

Assistant Solicitor Brent A. Gray, of Moncks

Corner, for respondent.

MOORE, A.J.: Petitioner sought a writ of certiorari to review

the Court of Appeals' decision in State v. Bacote, Op. No. 97-UP-105 (S.C.

p.16

Ct. App. filed February 6, 1997). We affirm.

FACTS

After petitioner was arrested for driving under the influence

(DUI) on June 26, 1994, he refused to take the breathalyzer test. He

requested an administrative hearing from the South Carolina Department

of Public Safety (SCDPS) to determine whether his license should be

automatically suspended under the implied consent statute, S.C. Code

Ann. § 56-5-2950 (Supp. 1996). Because the arresting officer did not

appear at the administrative hearing, the hearing officer rescinded

petitioner's automatic suspension.

Prior to petitioner's DUI trial, petitioner moved to suppress

evidence regarding his refusal to take the breathalyzer test. The trial

judge ruled collateral estoppel applied and held evidence petitioner refused

the breathalyzer should be suppressed based upon the administrative

hearing and subsequent dismissal of the automatic suspension. The State

immediately appealed. The Court of Appeals reversed.

ISSUE

Did the Court of Appeals err in holding the trial

judge erroneously suppressed petitioner's refusal

to take the breathalyzer?

DISCUSSION

Under § 56-5-2950, a defendant may request a hearing to

determine whether the defendant was placed under arrest, was info=ed

that he could refuse the test whereupon his driving privileges would be

suspended, and actually refused to take the test. If a hearing is requested

the ninety-day suspension does not begin until after the hearing and the

suspension is sustained.

The Court of Appeals relied upon its decision in Shelton v.

Oscar Mayer Foods Corp., 319 S.C. 81, 459 S.E.2d 851 (Ct. App. 1995),

and held collateral estoppel did not apply to administrative hearings held

pursuant § 56-5-2950. In Shelton, the issue was whether an

administrative finding of the Employment Security Commission (ESC) was

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binding in the employee's subsequent wrongful termination suit. Based

upon the limited nature of the ESC's hearing, the Court of Appeals held

the ESC's findings were not binding. We reviewed the Court of Appeals'

decision in Shelton and affirmed. Shelton v. Oscar Mayer Foods Corp ,

325 S.C. 248, 481 S.E.2d 706 (1997). We agreed the nature of the ESC's

hearing was limited and the ESC's findings should not be used as

collateral estoppel in a subsequent civil action. In Shelton, we held if an

issue decided at the ESC hearing could be used against an employer in a

subsequent action, the hearing would become a full-blown trial on the

issue of termination defeating the purpose which is to quickly provide an

unemployed person some income.

We have previously adopted the general rule of collateral

estoppel as set forth in the Restatement (Second) of Judgments § 27 (1982)

in South Carolina Prop. & Cas. Ins. Guar. Ass'n v. Wal-Mart Stores, Inc.,

304 S.C. 210, 403 S.E.2d 625 (1991). Section 27 states: "When an issue of

fact or law is actually litigated and determined by a valid and final

judgment, and the determination is essential to the judgment, the

determination is conclusive in a subsequent action between the parties,

whether on the same or different claim." See also Palm v. General

Painting Co., Inc., 302 S.C. 372, 396 S.E.2d 361 (1990)(citations

omitted)("Under the doctrine of collateral estoppel, . . . the second action

is based upon a different claim and the judgment in the first action

precludes relitigation of only those issues actually and necessarily litigated

in the first suit."').

In the context of a default judgment, collateral estoppel or

issue preclusion does not apply because an essential element of that

doctrine requires that the claim sought to be precluded actually have been

litigated in the earlier litigation. 50 C.J.S Judgments § 797 (1997). Thus,

here, the license revocation hearing would not preclude the introduction of

evidence regarding petitioner's refusal to take the breathalyzer because the

issue was never actually litigated in the administrative proceeding. See

State v. Lewry, 550 A.2d 64 (Me. 1988)(order entered by default in license

suspension proceeding has no collateral effect in prosecution for DUI since

the order was not the result of actual litigation on the issue on the

merits); State v. Purvis, 739 S.W.2d 589 (Mo.App. 1987)(to be barred by

collateral estoppel an issue must have been actually litigated as

distinguished from a judgment rendered upon some preliminary or

technical point, or by default and without trial).

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Even had the issue actually been litigated, we hold collateral

estoppel does not apply to issues decided at administrative hearings held

pursuant to § 56-5-2950. The doctrine of collateral estoppel is intended to

reduce litigation and conserve the resources of the court and litigants and

it is based upon the notion that it is unfair to permit a party to relitigate

an issue that has already been decided. Since it is grounded upon

concepts of fairness, it should not be rigidly or mechanically applied. In re

Juan C., 89 N.Y.2d 659, 679 N.E.2d 1061, 657 N.Y.S.2d 581 (1997). See

also 50 C.J.S. Judgments § 779 (1997). Thus, even if all the requirements

of issue preclusion are met, when unfairness or injustice results or public

policy requires it, the doctrine's application may be precluded. Id.

Section 28 of the Restatement (Second) of Judgments (1982),

which we also adopted in South Carolina Prop. & Cas. Ins. Guar. Ass'n. v.

Wal-Mart Stores, supra, provides, in pertinent part:

Although an issue is actually litigated and determined

by a valid and final judgment, and the determination

is essential to the judgment, relitigation of the issue

in a subsequent action between the parties is not

precluded in the following circumstances:

(3) A new determination of the issue is warranted

by differences in the quality or extensiveness of

the procedures followed in the two courts or by

factors relating to the allocation of jurisdiction

between them . . .

(5) There is a clear and convincing need for a new

determination of the issue (a) because of the potential

adverse impact of the determination on the public

interest or the interests of persons not themselves

parties in the initial action, (b) because it was not

sufficiently foreseeable at the time of the initial

action that the issue would arise in the context

of a subsequent action, or (c) because the party

sought to be precluded, as a result of the

conduct of the adversary or other special

circumstances, did not have an adequate

opportunity or incentive to obtain a full and

fair adjudication in the initial action.

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In State v. Williams, 76 Ohio St.3d 290, 667 N.E.2d 932

(1996), the Ohio Supreme Court held that pursuant to § 28 (3) and (5) of

the Restatement, an administrative license revocation proceeding does not

preclude litigation of the same issue in a criminal prosecution. The court

pointed out the limited nature of the administrative proceeding and its

informality and also relied upon the adverse impact that collateral

estoppel would have in the criminal proceedings if it were allowed (i.e. the

State would be forced to treat the administrative hearing as an initial and

essential part of the criminal trial).

Other jurisdictions have similarly held the state does not have

a full and fair opportunity to litigate issues during a license revocation

proceeding, and it would be unfair to preclude the state from litigating

such issues during a subsequent criminal trial. See People v. Moore, 138

Ill.2d 162, 561 N.E.2d 648 (1990); People v. Lalka, 113 Misc.2d 474, 449

N.Y.S.2d 579 (1982). We agree with the reasoning applied in these cases.

The summary nature of the typical license revocation hearing makes

determinations from such a hearing inappropriate for the application of

collateral estoppel. Moore, supra.

Moreover, if every license revocation hearing carries with it

potential collateral estoppel impact on a subsequent criminal action, the

State may feel compelled to intervene in every administrative action to

effectively protect its interests in some future criminal proceeding. The

net effect would be to slow down what should be a summary

administrative proceeding designed to handle license revocation matters

quickly. Accordingly, the Court of Appeals' decision is

AFFIRMED.

FINNEY, C.J., TOAL, WALLER and BURNETT, JJ., concur.

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