ORDERS:
ORDER
STATEMENT OF THE CASE
This matter is an appeal by the South Carolina Department of Motor Vehicles (Department) from a Final Order and Decision of the South Carolina Division of Motor Vehicle Hearings (DMVH). The DMVH’s Final Order was issued in connection with an administrative hearing that it held pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (2006). The Administrative Law Court (ALC) has jurisdiction to hear this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2005). Upon consideration of the briefs, the DMVH’s Final Order and Decision is reversed as set forth below.
BACKGROUND
“In South Carolina, operating a motor vehicle is a privilege of the State, not a right of the individual.” Taylor v. S.C. Dep’t of Motor Vehicles, 368 S.C. 33, 36, 627 S.E.2d 751, 753 (Ct. App. 2006). Consistent with this principle, S.C. Code Ann. § 56-5-2950(a) (2006) provides in pertinent part:
A person who drives a motor vehicle in this State is considered to have given consent to chemical tests of his breath, blood, or urine for the purpose of determining the presence of alcohol or drugs or the combination of alcohol and drugs if arrested for an offense arising out of acts alleged to have been committed while the person was driving a motor vehicle while under the influence of alcohol, drugs, or a combination of alcohol and drugs. A breath test must be administered at the direction of a law enforcement officer who has arrested a person for driving a motor vehicle in this State while under the influence of alcohol, drugs, or a combination of alcohol and drugs.
Importantly, Section 56-5-2950(a) continues on to state:
No tests may be administered or samples obtained unless the person has been informed in writing that: (1) he does not have to take the test or give the samples, but that his privilege to drive must be suspended or denied for at least ninety days if he refuses to submit to the tests and that his refusal may be used against him in court; (2) his privilege to drive must be suspended for at least thirty days if he takes the tests or gives the samples and has an alcohol concentration of fifteen one-hundredths of one percent or more; (3) he has the right to have a qualified person of his own choosing conduct additional independent tests at his expense; (4) he has the right to request an administrative hearing within thirty days of the issuance of the notice of suspension; and (5) if he does not request an administrative hearing or if his suspension is upheld at the administrative hearing, he must enroll in an Alcohol and Drug Safety Action Program.
Under S.C. Code Ann. § 56-5-2951(A) (2006), the license of a motorist who refuses to submit to the testing required under Section 56-5-2950(a) must be immediately suspended. However, under Section 56-5-2951(B)(2), a motorist who has his license so suspended may request an administrative hearing to challenge the suspension. If such a hearing is requested, the scope of the hearing must be limited to whether the person: (1) was lawfully arrested or detained; (2) was advised in writing of the rights enumerated in Section 56-5-2950; and (3) refused to submit to a test pursuant to Section 56-5-2950. S.C. Code Ann. § 56-5-2951(F) (2006); see also S.C. Dep’t of Motor Vehicles v. Nelson, 364 S.C. 514, 526, 613 S.E.2d 544, 550 (Ct. App. 2005).
FACTS
On March 23, 2006, while running stationary radar, Officer Mark Happ of the Florence Police Department observed Respondent speeding and driving erratically. He conducted a traffic stop. As he spoke to Respondent, he noticed that Respondent seemed disoriented and that Respondent’s breath smelled of alcohol. Officer Happ asked Respondent if he had been drinking. Respondent stated that he had consumed a few beers at a party. Respondent later admitted to having consumed 10 or 12 beers.
Officer Happ asked Respondent to exit his vehicle. He read Respondent his Miranda rights and administered field sobriety tests to Respondent. Respondent performed poorly on the field sobriety tests. Thereafter, Respondent was arrested for driving under the influence and was transported to the Florence County Detention Center.
At the Florence County Detention Center, Officer Chris Orphan, a Florence police officer who is a certified DataMaster operator, advised Respondent of his implied consent rights. Respondent refused to submit to chemical testing. Based on this refusal, Respondent was issued a Notice of Suspension pursuant to Section 56-5-2951(A).
Thereafter, pursuant to Section 56-5-2951(B)(2), Respondent filed a request for an administrative hearing to challenge the suspension. At the hearing, Officer Orphan testified that Respondent “was advised of his implied consent [rights].” However, he did not specify which implied consent advisement was given to Respondent, and he did not testify that Respondent was advised of these rights in writing. Officer Orphan was not cross-examined at the hearing. Respondent neither testified at the hearing nor presented any other evidence.
On May 30, 2006, the DMVH hearing officer issued a Final Order and Decision, in which he rescinded Respondent’s suspension. In doing so, he explained:
There being no evidence corroborating Officer Orphan’s testimony as to which Implied Consent Advisement was given to the Respondent, and there being no testimony as to the advisement being given to the Respondent in writing, I conclude as a matter of law that the Petitioner has failed to meet its burden of proof. Accordingly, the relief requested by Respondent must be granted.
The Department now appeals.
ISSUES ON APPEAL
1. Was it error for the DMVH hearing officer to rescind Respondent’s suspension based on Officer Orphan’s failure to specify which implied consent advisement was given to Respondent?
2. Was it error for the DMVH hearing officer to rescind Respondent’s suspension based on Officer Orphan’s failure to testify that Respondent was advised in writing of his implied consent rights?
STANDARD OF REVIEW
The DMVH is authorized by law to determine contested case hearings of the Department of Motor Vehicles. See S.C. Code Ann. § 1-23-660 (Supp. 2005). Therefore, appeals from the decisions of the DMVH are decided under the Administrative Procedures Act’s (APA) standard of review. In fact, Section 1-23-660 now provides that all appeals from decisions of the DMVH hearing officers must be taken to the ALC pursuant to the ALC’s appellate rules of procedure. Thus, the Administrative Law Judge sits in an appellate capacity under the Administrative Procedures Act (APA) rather than as an independent finder of fact. In South Carolina, the provisions of the APA — specifically Section 1-23-380(A)(5) — govern the circumstances in which an appellate body may review an agency decision. That section states:
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 [of the agency] 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. § 1-23-380(A)(5) (as amended by 2006 S.C. Act No. 387).
A decision is supported by “substantial evidence” when the record as a whole allows reasonable minds to reach the same conclusion reached by the agency. Bilton v. Best Western Royal Motor Lodge, 282 S.C. 634, 641, 321 S.E.2d 63, 68 (Ct. App. 1984). The well-settled case law in this state has also interpreted the “substantial evidence” rule to mean that 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)). Furthermore, the reviewing court is prohibited from substituting its judgment for that of the agency as to the weight of the evidence on questions of fact. Grant v. S.C. Coastal Council, 319 S.C. 348, 353, 461 S.E.2d 388, 391 (1995) (citing Gibson v. Florence Country Club, 282 S.C. 384, 386, 318 S.E.2d 365, 367 (1984)). Finally, the party challenging an agency action has the burden of proving convincingly that the agency’s decision is unsupported by substantial evidence. Waters, 321 S.C. at 226, 467 S.E.2d at 917.
DISCUSSION
The Department argues that the DMVH hearing officer erred in rescinding Respondent’s suspension based on Officer Orphan’s failure to specify which implied consent rights advisement was given to Respondent. Specifically, the Department argues that there is only one form distributed to law enforcement agencies to advise motorists of their implied consent rights and that “all parties know” what this form is and what it contains. The Department also argues that the DMVH hearing officer erred by rescinding Respondent’s suspension based on Officer Orphan’s failure to testify that Respondent was advised in writing of his implied consent rights.
Respondent, however, argues that “all parties know” that while the upper portion of the implied consent form contains the implied consent rights that would have been applicable to Respondent in this case, the bottom portion of such form contains the implied consent rights (or lack thereof) that are applicable to felony DUI cases. According to Respondent, because it would have been totally inappropriate for Officer Orphan to have read the felony DUI advisement to Respondent, Officer Orphan was required to testify as to which advisement he read to Respondent.
In South Carolina the burden of proof is upon the Department. See S.C. Dep’t of Motor Vehicles v. Cordell, Docket Number: 06-ALJ-21-0597-AP; 2006 WL 3232071 (S.C. Admin. Law Ct. 2006). “The term burden of proof has been used to describe two related but distinct concepts: the burden of production and the burden of persuasion.” 29 Am. Jur. Evidence § 155 (1994). The burden of persuasion absent a permissible presumption does not shift during the trial of a case. However, the burden of production or “the burden of going forward with evidence may shift at various times from one party to the other as the respective parties produce evidence.” Sanders et al., Trial Handbook for South Carolina Lawyers § 9:1, at 355 (2000). The burden that shifts would thus be the requirement that the motorist come forward with evidence to contradict the State’s evidence. Furthermore, the policy considerations that govern the initial assignment of the burden of persuasion also govern the determination of whether to shift the burden of producing evidence. 2 Kenneth S. Broun et al., McCormick on Evidence § 337 (John W. Strong ed., 5th ed. 1999). In that light, where the facts lie peculiarly in the knowledge of a party, that party usually has the burden of proof. Id. Likewise, “[t]he risk of failure of proof may be placed upon the party who contends the more unusual event has occurred.” Id at 413.
The State’s burden in this case is established, in part, by showing that the State followed the requisites of Section 56-5-2950(a) in administering the breath test. In other words, the Department must establish a prima facie case the breath test was administered as required by Section 56-5-2950(a). In South Carolina, “[o]nce a party establishes a prima facie case, the burden of proof shifts to the opposing party.” Daisy Outdoor Advertising Co., Inc. v. South Carolina Dept. of Transp., 352 S.C. 113, 118, 572 S.E.2d 462, 465 (Ct. App. 2002).[2] Additionally, when a motorist refuses to submit to a breath test, that motorist possesses the knowledge of the reasons for the refusal. Moreover, the refusal would appear to be the more unusual event since it results in a mandatory suspension and, inversely, it forecloses the potential for exonerating results.
Moreover, many other state courts have also held that the state agency bears either the burden of proof or the initial burden to establish that a motorist’s license suspension is justified.[3] Of those states, many have also held that the burden shifts to the motorist once the state agency establishes its prima facie case.[4] Several states have also directly addressed this issue in the context of a motorist who refused to submit to the breath test. For instance, in Clement, the Court held that “once the Department proves the motorist’s refusal to take a breath test, the burden shifts to the motorist to prove by a preponderance of the evidence an excuse for his or her noncompliance. 35 P.3d at 1174. See also Bureau of Traffic Safety v. Kelly, 335 A.2d 882, 884 (“We hold that after the Commonwealth has proven a refusal to submit to a breathalyzer test, the burden shifts to the defendant to prove by competent evidence that he was physically unable to submit to the test.”); Hollis v. State ex rel. Dept. of Public Safety, 131 P.3d 145, 147 (“The burden of proving incapacity to refuse to submit to the test rests with the licensee if, and after, DPS has established its prima facie case.”).
Therefore, the State bears the burden of presenting evidence that it complied with the requirements of Section 56-5-2950(a). Once the State presents a prima facie case that the officers followed the requisites of Section 56-5-2950(a), the burden of proving that the Officer failed to comply with Section 56-5-2950(a) shifts to the motorist.
Here, Officer Orphan testified that Respondent “was advised of his implied consent [rights].” Though he did not specify which implied consent advisement was given to Respondent, his testimony certainly presented evidence that he complied with the Implied Consent Advisement of Section 56-5-2950(a). The evidence reflects that Officer Orphan read Respondent the Section 56-5-2950(a) rights that were applicable to Respondent. In the absence of any proof to the contrary, public officers are presumed to have properly discharged the duties of their offices and to have faithfully performed the duties with which they are charged. S.C. Nat’l Bank v. Florence Sporting Goods, Inc., 241 S.C. 110, 115-16, 127 S.E.2d 199, 202 (1962); 30 S.C. Jur. Evidence § 29 (2006); see also Felder v. Johnson, 127 S.C. 215, 217, 121 S.E. 54, 54 (1924) (“In the absence of evidence to the contrary, courts are bound to presume that public officers have properly discharged their duties and that their acts are in all respects regular.”); State ex rel. George v. City Council of Aiken, 42 S.C. 222, 241, 20 S.E. 221, 228 (1894) (“It is presumed that public officials will discharge the duties of office in a lawful manner, until the contrary appears.”); 31A C.J.S. Evidence § 159 (1996) (“[I]t is, as a general rule, presumed that a public official properly and regularly discharges his duties . . . in accordance with the law and the authority conferred on him . . .”); 29 Am. Jur. 2d Evidence § 203 (1994) (“In the absence of evidence to the contrary, the law assumes that public officials have performed their duties properly, unless the official act in question appears irregular on its face.”). In that regard, Officer Orphan testified that he is a certified DataMaster operator. Thus, he has received training regarding how to properly administer breath tests. As SLED policy clearly indicates, one portion of the test administration process is the provision of the implied consent rights advisement. See SLED implied consent policy 8.12.5(D) and (E). Second, SLED policy clearly delineates the circumstances under which each advisement must be read. See SLED implied consent policy 8.12.5(D). Law enforcement officers are not given any discretion as to which advisement to read. Id. Third, because Officer Orphan testified that he advised Respondent of his implied consent rights, the presumption is not being used as a substitute for proof of a material fact. Finally, Officer Orphan was never put on notice that he needed to supplement his testimony regarding the implied consent advisement given to Respondent. In fact, at no point during the hearing did Respondent even suggest that Officer Orphan may have failed to read the correct advisement.
Furthermore, Respondent chose to refuse the breath test. Notably, the standard DUI advisement differs from the felony DUI advisement in that the felony DUI advisement does not advise motorists that they have the right to refuse chemical testing because, under S.C. Code Ann. § 56-5-2946 (2006), those arrested for felony DUI do not in fact have the right to refuse testing. See State v. Cuevas, 365 S.C. 198, 616 S.E.2d 718 (Ct. App. 2005) (motorist arrested for felony DUI was given the implied consent warnings for felony DUI, but was not advised of his right to refuse chemical testing) and City of Florence v. Jordan, 362 S.C. 227, 229-30, 607 S.E.2d 86, 87-88 (Ct. App. 2004) (setting forth the language contained in the standard DUI advisement). Therefore, based on Respondent’s refusal, it is reasonable to infer that Respondent was advised of his right to refuse testing and, thus, was read the standard DUI advisement.
Officer Orphan’s testimony, nevertheless, did not establish that the advisement was given to the Respondent in writing. However, in Taylor v. S.C. Dep’t. of Motor Vehicles, 368 S.C. 33, 36, 627 S.E.2d 751, 753 (Ct. App. 2006), a motorist’s driver’s license was suspended pursuant to Section 56-5-2951(A) based on the motorist’s refusal to submit to a blood test after being arrested for driving under the influence. Although the arresting officer read aloud to the motorist a form which set forth the motorist’s Section 56-5-2950(a) rights, the officer did not provide the motorist with a written copy of the form. The Court relying heavily on State v. Huntley, 349 S.C. 1, 5, 562 S.E.2d 472, 474 (2002) concluded that the motorist was not prejudiced by the fact that the arresting officer did not provide a written copy of the Section 56-5-2950(a) advisement to the motorist. Id. Importantly, the Taylor court interpreted the Huntley decision as follows:
[In Huntley], the supreme court reversed the suppression of the breathalyzer test results because the defendant was not prejudiced by the statutory violation committed by the breathalyzer operator. Consequently, the Huntley decision dictates that a violation of section 56-5-2950 without resulting prejudice will not lead to a suppression of the evidence obtained pursuant to this section.
Taylor, 368 S.C. at 38, 627 S.E.2d at 754. Here, the record clearly demonstrates that Respondent was advised of his implied consent rights. Thus, pursuant to Taylor, any failure by Officer Orphan to advise Respondent in writing of these rights is actually irrelevant, since Respondent has not argued that he was prejudiced by such failure.
The evidence presented by Officer Orphan does not merely raise the specter that he complied with Section 56-5-2950(a), but rather sets forth evidence for which a reasonable person could not help but infer that the state had complied with Section 56-5-2950(a). See 2 Kenneth S. Broun et al., McCormick on Evidence § 338 (John W. Strong ed., 5th ed. 1999). Thus, in the context of the hearing and in light of Taylor, the evidence established a prima facie case that he followed the requisites of Section 56-5-2950(a). The burden thus shifted to the Respondent to present evidence to the contrary. Nevertheless, Respondent did not cross-examine Officer Orphan at the hearing or present any other evidence. Therefore, it was error for the DMVH hearing officer to rescind Respondent’s suspension based on Officer Orphan’s failure to testify as to which implied consent rights advisement was given to Respondent. See Arkwright Mills v. Clearwater Mfg. Co., 217 S.C. 530, 61 S.E.2d 165 (1950) (“It is the settled rule of law that once a party establishes a prima facie case, judgment will go in his favor unless the opposite party produces evidence sufficient to overcome the prima facie presumption.”); see also Moffitt v. Commonwealth, 434 S.E.2d at 687 (1993) (“Once the Commonwealth has established a prima facie case [that a motorist is an habitual offender under motor vehicle licensure statute], it is entitled to judgment, unless the respondent goes forward with evidence that refutes an element of the Commonwealth's case or rebuts the prima facie presumption.”). Furthermore, the DMVH hearing officer erred by rescinding Respondent’s suspension based on Officer Orphan’s failure to testify that Respondent was advised in writing of his implied consent rights.
ORDER
It is hereby ordered that the DMVH’s Final Order and Decision is REVERSED.
AND IT IS SO ORDERED.
______________________________
Ralph K. Anderson
Administrative Law Judge
January 10, 2007
Columbia, South Carolina
Alabama - Ex parte Boykin, 643 So.2d 986 (Ala. 1993); Arizona - Sherrill v. Dep’t of Transp., 799 P.2d 836 (Ariz. 1990); California - Lake v. Reed, 940 P.2d 311 (Cal. 1997); Florida - Gurry v. Dep’t of Highway Safety, 902 So.2d 881 (Fla. Dist. Ct. App. 2005); Hawaii - Kernan v. Tanaka, 856 P.2d 1207 (Haw. 1993); Louisiana - Henry v. State Dept. of Public Safety, 788 So.2d 1286 (La. Ct. App. 2001); Maryland - Motor Vehicle Admin. v. Atterbeary, 796 A.2d 75 (Md. 2002); Minnesota - Kramer v. Comm’r of Public Safety, 706 N.W.2d 231 (Minn. Ct. App. 2005); Missouri - Spinner v. Dir. of Revenue, 165 S.W.3d 228 (Mo. Ct. App. 2005); Nebraska - Valeriano-Cruz v. Neth, 716 N.W.2d 765 (Neb. Ct. App. 2006); New Mexico - State Dep’t of Transp., Motor Vehicle Div. v. Romero, 748 P.2d 30 (N.M. Ct. App. 1987); North Carolina - Joyner v. Garrett, 182 S.E.2d 553 (N.C. 1971); Oklahoma - Sipes v. State ex rel. Dep’t of Pub. Safety, 950 P.2d 881 (Okla. Civ. App. 1997); Oregon - Cole v. Driver and Motor Vehicles Services Branch, 87 P.3d 1120 (Or. 2004); Pennsylvania - Bureau of Traffic Safety v. Kelly, 335 A.2d 882 (Pa. Commw. Ct.1975); Texas - Texas Dept. of Public Safety v. Sanchez, 82 S.W.3d 506 (Tex. App. 2002); Virginia – Moffitt v. Commonwealth, 434 S.E.2d 684 (Va. Ct. App. 1993) (habitual offender case); Washington - Clement v. State Dept. of Licensing, 35 P.3d 1171 (Wash. Ct. App. 2001); West Virginia- Cunningham v. Bechtold, 413 S.E.2d 129 (W. Va. 1991).
California - Manriquez v. Gourley, 130 Cal. Rptr. 2d 209, 213-14 (Cal. Ct. App. 2003); Florida– Gurry, 902 So.2d 881; Hawaii - Kernan, 856 P.2d 1207; Minnesota - Kramer, 706 N.W.2d 231; Missouri - Spinner, 165 S.W.3d 228; Nebraska - Valeriano-Cruz, 716 N.W.2d 765.; New Mexico - Romero, 748 P.2d 30.; Oklahoma - Hollis v. State ex rel. Dept. of Public Safety, 131 P.3d 145 (Okla. Civ. App. 2005); Pennsylvania – Kelly, 335 A.2d 882; Virginia – Moffitt, 434 S.E.2d 684; Washington- Clement, 35 P.3d 1171; West Virginia - Cunningham, 413 S.E.2d 129.
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