Could a reserve police officer operate traffic radar after 240 hours of training without Class 1 certification?

Plain-English summary

Springdale’s police chief asked why reserve officers with at least 240 hours of service training could not be certified to operate radar. Regulation 38-170, as quoted in the letter, restricted traffic radar accreditation to Class 1 certified law enforcement officers and required completion of a course taught by a certified radar instructor. The Assistant Deputy AG said he could not conclude the regulation exceeded legal requirements, so the officer had to meet its stated qualifications.

The chief also asked about the rule’s history. The author said the AG’s office could not substitute its policy judgment for the training agency’s discretion. He suggested that the reserve officer try to meet the Class 1 requirements under Regulation 38-160 (D) (1) and contact a Department of Public Safety official about the policy background. His letter was an informal opinion, and it did not itself grant an accreditation exception.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did 240 hours of reserve training qualify an officer to operate radar? A: The author said no. Regulation 38-170 required Class 1 certification as well as the specified radar course.

Q: Could the AG waive the training council’s certification rule? A: The letter said the AG could not supersede the agency’s regulatory discretion and found no basis to treat this rule as beyond the law.

Q: What path did the author suggest to the officer? A: He suggested seeking Class 1 certification under Regulation 38-160 (D) (1) and asking the Department of Public Safety about the rule’s history.

Background and statutory framework

The letter quoted both parts of Regulation 38-170 and referred to Regulation 38-160 (D) (1) as a possible certification path. It cited U.S.C. v. Batson when describing the presumption that an agency regulation stands until challenged.

Citations and references

Regulations discussed: Regulation 38-170; Regulation 38-160 (D) (1). Case cited: U.S.C. v. Batson.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/september-22-1997-2/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/97sept22wilkie.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CONDON
ATIORNEY GENERAL

September 22, 1997

Michael G. Wilkie, Chief of Police
Springdale Police Department
2915 Platt Springs Road
Springdale, South Carolina 29170

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Re: Informal Opinion
Dear Chief Wilkie:
You have referenced Regulation 3 8-170 of the Law Enforcement Training Council. You have further sought "to know something about the history behind this provision." Your concern is "why Reserve Officers who have completed at least 240 hours of in service training cannot be certified to operate Radar." Such Regulation, 38-170, which you have referenced, provides as follows: A.

Qualification
Only Class 1 certified law enforcement officers
may be accredited as traffic radar operators.

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B.

Accreditation
To be accredited as a traffic radar operator, a
law enforcement officer must complete a course
of training taught by a certified law enforcement
traffic radar instructor.

This Regulation is discussed in an Informal Opinion of this Office, dated June 11, 1997, which I have enclosed. Of course, an administrative agency possesses discretion to promulgate regulations which a court will generally uphold unless such regulation is beyond the authority of the agency or constitutes an abuse of discretion. As has been stated previously by this Office in an Informal opinion dated November 27, 1995: REMBERT

c. D EJ\NIS BUILDING

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POST OFFICE Box 11549

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COLUM BIA . S.C. 29211-1549

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TELEPHONE:

803-734-3970

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FACSIMILE: 803-253-6283

Chief Wilkie
Page 2
September 22, 1997
it is obviously not the province of this Office to comment upon the policy considerations or wisdom of a particular regulation promulgated by an administrative agency. As we have stated on numerous occasions, an administrative agency is afforded considerable discretion in the regulatory process. State law does not authorize this Office to supersede the administrative agency's authority or the discretion of that agency possessed with the expertise to promulgate regulations. Courts, as well as legal opinions of the Office of the Attorney General, must as a matter of law afford considerable latitude to the agency's discretion. See, Op.Atty.Gen., August 21, 1991. Such regulations generally are deemed to stand unless they are in contravention of or lacking in statutory authority or inconsistent with the federal or state Constitutions. An agency's regulations are presumed valid until challenged. U.S.C. v. Batson, 271 S.C. 242, 246 S.E.2d 882 (1978) (Littlejohn, J. concurring). I cannot conclude that the foregoing Regulation is beyond the requirements of the law and, therefore, such person must meet the requirement as specified in the Regulation.

My only suggestion would be for the Reserve Officer to attempt to meet the requirements of Class 1 certification pursuant to Regulation 38-160 (D) (1) as specified in the enclosed Regulation. Furthermore, you may wish to discuss this matter with Mr. Henry Wengrow with the Department of Public Safety. His telephone number is 8967780. He may be able to shed light upon the policy reasons and history of such Regulation. This letter is an informal opinion only. It has been written by a designated Assistant Deputy Attorney General and represents the position of the undersigned attorney as to the specific questions asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion. With kind regards, I am VefY,,tJuly yours,

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Assistant Deputy Attorney General
RDC/ph
Enclosures