SC Administrative Law Court Decisions

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”) issued August 8, 2006. The DMVH’s Final Order and Decision was issued following an administrative hearing held pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (2006). The Department contends that the DMVH Hearing Officer erroneously rescinded the driver’s license suspension of Respondent Charles Siegling (“Siegling”). The Administrative Law Court (“ALC” or “Court”) has jurisdiction to review this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2006). Upon consideration of the briefs, the DMVH’s Final Order and Decision is reversed.

BACKGROUND

On May 20, 2006, South Carolina highway patrol officer, R.S. Ashe (“Officer Ashe”) was called to respond to a motor vehicle accident in Charleston County. When he arrived, he observed three vehicles, one of which was Siegling’s. Siegling’s vehicle, which had heavy damage to the front portion of it, was in a ditch. The other two vehicles were on the shoulder of the road. Before Officer Ashe could reach Siegling’s vehicle, Siegling attempted to drive it out of the ditch, but was not able to do so. Officer Ashe initiated a conversation with Siegling, who told Officer Ashe that he had pulled over to the side of the road to use the bathroom. Siegling denied having been in a motor vehicle accident. According to Officer Ashe, Siegling smelled strongly of alcohol and appeared to be heavily intoxicated. Officer Ashe noticed that Siegling was unsteady on his feet and that his eyes were extremely bloodshot. Siegling agreed to submit to several field sobriety tests, which, according to Officer Ashe, he failed. Officer Ashe arrested Siegling for driving under the influence (“DUI”). He transported Siegling to a detention center in Charleston County for a breath test. Siegling refused to submit to a breath test. Based on this refusal, Officer Ashe issued Siegling a Notice of Suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (2006). The Notice of Suspension stated that Siegling’s privilege to drive in South Carolina was immediately being suspended for Siegling’s refusal to submit to chemical testing. On the Notice of Suspension, under “Vehicle Type,” “Noncommercial” was checked.

Pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (2006), Siegling filed a request with the DMVH for an administrative hearing to challenge the suspension. The DMVH held an administrative hearing on July 10, 2006. At the hearing, after testifying that he arrested Siegling for DUI, Officer Ashe provided the following testimony:

I . . . gave [Siegling] a copy of his advisement of implied consent rights. It was a — a copy for him to read. I handed it to him across the table and gave it to him to read while I grabbed this one here that I have in evidence.[1] I grabbed this one and filled out the top of it and told him that I would be reading this top section of his implied consent rights . . . I informed him that this would be a breath test. I then read through line by line of his implied consent rights . . . I read everything on there.

Thereafter, Officer Ashe testified that he asked Siegling if he had anything in his mouth. According to Officer Ashe, Siegling said that he did have something in his mouth, but that he was not going to remove it until his attorney arrived. Officer Ashe then provided the following testimony:

So at that time, I re-read him his rights on refusing the test — that he did have the right to refuse. I re-read them to him to make sure that he understood about his rights of refusing the test. And he stated that he understood . . . But as soon as I re-read him his — the refusal portion of it — of his implied consent rights, then he — again he stated that he was not going to do anything.

Siegling’s attorney did not object to Officer Ashe’s testimony regarding Siegling’s refusal to submit to chemical testing. Siegling did not testify at the hearing.

On August 8, 2006, the DMVH Hearing Officer issued a Final Order and Decision rescinding Siegling’s suspension. The DMVH Hearing Officer found that “Trooper Ashe did not submit any corroborating evidence or testimony to show what Implied Consent Advisement was given to Respondent.” The Department now appeals.

ISSUES ON APPEAL[2]

1.      Does this Court lack the authority to reverse the DMVH’s Final Order and Decision?

2.      Was it error for the DMVH Hearing Officer to rescind Siegling’s suspension on the grounds that Officer Ashe failed to submit any testimony or corroborating evidence to show which implied consent advisement was given to Siegling?

STANDARD OF REVIEW

The DMVH is authorized by law to determine contested cases arising from the Department. See S.C. Code Ann. § 1-23-660 (Supp. 2006). Therefore, the DMVH is an “agency” under the Administrative Procedures Act (“APA”). See S.C. Code Ann. § 1-23-310(2) (2005). As such, the APA’s standard of review governs appeals from decisions of the DMVH. See S.C. Code Ann. § 1-23-380(A) (Supp. 2006); see also S.C. Code Ann. § 56-5-2951(G) (Supp. 2006); Byerly Hosp. v. S.C. State Health & Human Servs. Fin. Comm’n, 319 S.C. 225, 229, 460 S.E.2d 383, 385 (1995). The standard used by appellate bodies to review agency decisions is provided by S.C. Code Ann. §1-23-380(A)(5) (Supp. 2006). See S.C. Code Ann. § 1-23-380(B) (Supp. 2006) (directing Administrative Law Judges to conduct a review “in the same manner prescribed in [§1-23-380](A)”). This section provides:

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) (Supp. 2006).

Thus, pursuant to the APA, this Court’s review is limited to deciding whether the DMVH’s Final Order and Decision is unsupported by substantial evidence or is affected by an error of law. Bass v. Kenco Group, 366 S.C. 450, 457, 622 S.E.2d 577, 581 (Ct. App. 2005). Substantial evidence is not a mere scintilla of evidence, nor the evidence viewed blindly from one side of the case, but is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion the agency reached in order to justify its action. Hargrove v. Titan Textile Co., 360 S.C. 276, 289, 599 S.E.2d 604, 611 (Ct. App. 2004). The possibility of drawing two inconsistent conclusions from the evidence does not prevent the agency’s findings from being supported by substantial evidence. Id. at 290, 599 S.E.2d at 611. The party challenging an agency’s decision has the burden of proving convincingly that the agency’s decision is unsupported by substantial evidence. Waters v. S.C. Land Resources Conservation Comm’n, 321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996).

DISCUSSION

Summary of Applicable Law

The license to operate a motor vehicle upon South Carolina’s public highways is not a property right, but is a mere privilege subject to reasonable regulations in the interests of public safety and welfare. Sponar v. S.C. Dep’t of Pub. Safety, 361 S.C. 35, 39, 603 S.E.2d 412, 415 (Ct. App. 2004) (quoting Summersell v. S.C. Dep’t of Pub. Safety, 334 S.C. 357, 366, 513 S.E.2d 619, 624 (Ct. App. 1999), vacated in part on other grounds, 337 S.C. 19, 522 S.E.2d 144 (1999)), cert. granted, (Nov. 17, 2005). 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.

Section 56-5-2950(a) continues:

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 driver’s license of a motorist who refuses to submit to the testing required under Section 56-5-2950(a) must be immediately suspended.[3] However, under S.C. Code Ann. § 56-5-2951(B)(2) (2006), 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); S.C. Dep’t of Motor Vehicles v. Nelson, 364 S.C. 514, 526, 613 S.E.2d 544, 550 (Ct. App. 2005).

Issue 1: This Court’s Authority to Reverse the DMVH’s Final Order and Decision

As an initial matter, Siegling argues that this Court does not have the authority to reverse the DMVH’s Final Order and Decision because the Department has failed to argue and “nothing in the record suggests” that substantial rights of the Department were prejudiced by the rescission of Siegling’s suspension. In support for this argument, Siegling cites Section 1-23-380(A)(5), which, as noted above, states in pertinent part:

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) (Supp. 2006) (emphasis added).

This argument is unconvincing. The State has a strong interest in maintaining safe highways and roads. Nelson, 364 S.C. at 522, 613 S.E.2d at 548. The purpose of administratively suspending a motorist’s license for his or her failure to submit to chemical testing is to protect the public. State v. Kerr, 330 S.C. 132, 150, 498 S.E.2d 212, 221 (Ct. App. 1998); State v. Price, 333 S.C. 267, 272, 510 S.E.2d 215, 218 (1998). As South Carolina courts have noted, driving while under the influence of alcohol or drugs is a dangerous activity. See State v. Martin, 275 S.C. 141, 146, 268 S.E.2d 105, 107 (1980) (noting that an individual who drives while intoxicated “presents a clear and present danger to the community”); Lydia v. Horton, 343 S.C. 376, 393, 540 S.E.2d 102, 111 (Ct. App. 2000) (noting that there is a “general understanding that driving while intoxicated presents an unreasonable risk of physical harm to the driver and others”), rev’d on other grounds, 355 S.C. 36, 583 S.E.2d 750 (2003). Thus, because the Department is the State agency responsible for effecting Section 56-5-2951 suspensions, an improper rescission of a Section 56-5-2951 suspension prejudices the substantial rights of the Department. Therefore, this Court will not, as Siegling urges, affirm the DMVH’s Final Order and Decision without addressing the substantive issues on appeal.

Issue 2: Failure to Specify Which Implied Consent Rights Advisement Was Given

The Department argues that the DMVH Hearing Officer erred by rescinding Siegling’s suspension on the grounds that Officer Ashe failed to submit any testimony or corroborating evidence to show which implied consent advisement was given to Siegling. I agree.

Section 56-5-2950 is widely called the “implied consent” statute,[4] and the rights set forth in Section 56-5-2950 are commonly referred to as “implied consent rights.”[5] However, according to SLED Implied Consent Policy 8.12.5(D),[6] there are actually eight different situations in which an “implied consent test” can be requested, and SLED has drafted a separate advisement for each different situation. SLED has named these eight advisements as follows: (1) DUI Advisement; (2) Felony DUI Advisement; (3) Zero Tolerance Advisement; (4) Commercial Driver’s License Advisement; (5) Boating Under the Influence (“BUI”) Advisement; (6) BUI Involving Death, Bodily Injury, or Property Damage Advisement; (7) Flying Under the Influence Advisement; and (8) Shooting Under the Influence Advisement. SLED Implied Consent Policy 8.12.5(D). Although there are eight different advisements, there are only three different implied consent advisement forms. See Ronnie M. Cole & James B. Huff, Handling Traffic Cases in South Carolina 236, 341-42 (Candace Koopman Lockman ed., 4^th ed. 2005) (setting forth copies of the three different implied consent advisement forms). Two of the forms include three of the advisements, and one of the forms includes two advisements. Id.

Based on Officer Ashe’s testimony, the DMVH Hearing Officer’s conclusion that Officer Ashe “did not submit any . . . testimony to show what Implied Consent Advisement was given to [Siegling]” was not supported by substantial evidence. Officer Ashe testified that he informed [Siegling] of his right to refuse testing, and thus established that he did not read Siegling the Felony DUI Advisement.[7] Moreover, Officer Ashe brought the implied consent form to the hearing, and testified that, after handing Siegling a copy of the implied consent form, he informed Siegling that he would be reading the top section of the form.[8] By providing this testimony, Officer Ashe narrowed down the possible advisements that were given to Siegling to the following three: (1) the BUI Advisement; (2) the DUI Advisement; and (3) the Commercial Driver’s License Advisement. See Cole & Huff, supra, at 236, 341-42.[9] Furthermore, Officer Ashe repeatedly testified that he advised Siegling of “his implied consent rights.” In light of the general presumption that public officers properly discharge their duties,[10] as well as the fact that Siegling’s attorney never argued that Officer Ashe failed to establish that Siegling was given the correct advisement, the most reasonable interpretation of this testimony is that Officer Ashe advised Siegling of the implied consent rights that were applicable to Siegling in his current situation (i.e., the DUI Advisement).[11] Therefore, contrary to the DMVH Hearing Officer’s finding, Officer Ashe did indeed provide testimony relevant to the issue of which implied consent advisement was given to Siegling.

Although Officer Ashe failed to formally introduce corroborating evidence to show which implied consent advisement was given to Siegling, this fact alone did not warrant the rescission of Siegling’s suspension. While it is true that, without the implied consent form, this Court cannot be absolutely certain that Siegling was given the correct advisement, once the Department presented prima facie evidence to show that Siegling was advised in writing of the rights enumerated in Section 56-5-2950, the burden of production shifted to Siegling to show that he was not so advised. See State v. Parker, 271 S.C. 159, 164, 245 S.E.2d 904, 906 (1978); see also Hollis v. State ex rel. Dep’t of Pub. Safety, 131 P.3d 145, 147 (Okla. Civ. App. 2005); Johnson v. Director Of Revenue, 168 S.W.3d 139, 142 (Mo. Ct. App. 2005); Ponce v. Commonwealth, Dep’t of Transp., Bureau of Driver Licensing, 685 A.2d 607, 611 (Pa. Commw. Ct. 1996). Prima facie evidence is evidence sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted. LaCount v. Gen. Asbestos & Rubber Co., 184 S.C. 232, 240, 192 S.E. 262, 266 (1937). “The words [prima facie evidence] import that the evidence produces for the time being a certain result; but that result may be repelled.” Mack v. Branch No. 12, Post Exchange, Fort Jackson, 207 S.C. 258, 272, 35 S.E.2d 838, 844 (1945).

Here, Officer Ashe’s testimony constituted prima facie evidence that Siegling was advised in writing of the rights enumerated in Section 56-5-2950. Therefore, once Officer Ashe offered this testimony, the burden of production shifted to Siegling to present evidence to show that he was not given the correct implied consent advisement. Siegling did not present any such evidence. Therefore, the DMVH Hearing Officer erred by rescinding Siegling’s suspension.

ORDER

IT IS THEREFORE ORDERED that the DMVH’s Final Order and Decision is REVERSED and the Department’s suspension of Siegling’s driver’s license is reinstated.

IT IS SO ORDERED.

______________________________

CAROLYN C. MATTHEWS

Administrative Law Judge

April 3, 2007

Columbia, South Carolina