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). The DMVH’s Final Order and Decision was issued following an administrative hearing held pursuant to S.C. Code Ann. § 56-5-2951 (2006 & Supp. 2006). The Department contends that the DMVH hearing officer erroneously rescinded the driver’s license suspension of Respondent Juliann Grace Manuse (Manuse). The Administrative Law Court (ALC or Court) has jurisdiction to review this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2007). Upon consideration of the briefs, the DMVH’s Final Order and Decision is reversed.

BACKGROUND

On July 14, 2006, Officer Andrew Harris of the Mount Pleasant Police Department arrested Manuse for driving under the influence (DUI). He transported Manuse to the Mount Pleasant Police Department and directed Officer Aaron Postell to administer a DataMaster test to Manuse. Manuse subsequently refused to submit to the DataMaster test and was issued a Notice of Suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (2006).

Thereafter, Manuse filed a request with the DMVH for an administrative hearing to challenge the suspension. An administrative hearing was held on November 6, 2006. At the hearing, Officer Postell provided the following relevant testimony:

I . . . read and gave [Manuse] a copy of the advisement of implied consent rights which she at first refused to sign. After reading the rights and she said that she understood all of them and had no questions, I checked her mouth for any foreign materials.

Officer Postell also testified, without objection, that he was a certified DataMaster operator.

Manuse did not testify at the hearing, and she did not cross-examine Officer Postell. The implied consent form was not introduced into evidence.

On November 13, 2006, the DMVH hearing officer issued a Final Order and Decision rescinding Manuse’s suspension. Specifically, the hearing officer held in pertinent part:

There was no evidence presented to show the Respondent was advised of the correct Implied Consent Advisement . . . There are several versions of the Advisement of Implied Consent Rights and without evidence of such; there is no way to determine if the Respondent was properly advised of the proper rights. Therefore, I conclude as a matter of law that the Petitioner has not met its burden of proof.

The Department now appeals.

ISSUES ON APPEAL

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

2.      Did the DMVH hearing officer err by rescinding Manuse’s suspension on the grounds that the Petitioners failed to adequately prove that the correct implied consent advisement was given to Manuse?

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. 2007). 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 (Supp. 2007); see also 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, including the ALC, to review agency decisions is provided by S.C. Code Ann. §1-23-380(A)(5) (Supp. 2007).[2] 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. 2007).

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). 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).

DISCUSSION

Summary of Applicable Law

The license to operate a motor vehicle upon the public highways of this State is not a right, but a privilege that is subject to reasonable regulations in the interests of public safety and welfare. State v. Newton, 274 S.C. 287, 294, 262 S.E.2d 906, 910 (1980). This privilege is always subject to revocation or suspension for any cause relating to public safety. S.C. State Hwy. Dep’t v. Harbin, 226 S.C. 585, 595, 86 S.E.2d 466, 470 (1955). However, it cannot be revoked arbitrarily or capriciously. Id.

Consistent with these principles, the legislature enacted S.C. Code Ann. § 56-5-2950 (2006) and S.C. Code Ann. § 56-5-2951 (2006 & Supp. 2006). Section 56-5-2950 declares that a motorist arrested for DUI implicitly consents to a chemical test of his breath, blood or urine for the purpose of determining the presence of alcohol or drugs, and it requires that, at the direction of the arresting officer, a breath test be administered to a motorist so arrested. S.C. Code Ann. § 56-5-2950(a) (2006).[3] However, Section 56-5-2950 also provides that, before any type of chemical test is administered, the motorist must be 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.

S.C. Code Ann. § 56-5-2950(a) (2006).

Section 56-5-2951, in turn, mandates that the driver’s license of a motorist who refuses to submit to a test required by Section 56-5-2950 be immediately suspended. See S.C. Code Ann. § 56-5-2951(A) (2006). Section 56-5-2951 nevertheless grants motorists the right to request an administrative hearing to challenge such suspensions. S.C. Code Ann. § 56-5-2951(B)(2) (2006). If such a hearing is requested, the scope of the hearing must be limited to whether the motorist: (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) (Supp. 2006).

In a Section 56-5-2951 hearing, the initial burden of proof is borne by the Department and/or the applicable law enforcement agency. See, e.g., S.C. Dep’t of Motor Vehicles v. Lavigne, 06-ALJ-21-0056-AP (January 10, 2007); S.C. Dep’t of Motor Vehicles v. Boyle, 06-ALJ-21-0340-AP (September 11, 2006); S.C. Dep’t of Motor Vehicles v. Heyward, 06-ALJ-21-0533-AP (February 9, 2007); S.C. Dep’t of Motor Vehicles v. Witt, 06-ALJ-21-0630-AP (July 5, 2007). However, once a prima facie case is established against the motorist, the burden shifts to the motorist to present evidence to rebut the prima facie case. S.C. Dep’t of Motor Vehicles v. Powers, 06-ALJ-21-0578-AP (January 10, 2007) (explaining the application of this principle throughout the states).

Thus, if a prima facie case is established against the motorist and the motorist fails to present any evidence to rebut it, then judgment must go against the motorist. See Arkwright Mills v. Clearwater Mfg. Co., 217 S.C. 530, 539, 61 S.E.2d 165, 168-69 (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.”); accord Moffitt v. Commonwealth, 434 S.E.2d 684, 687 (Va. Ct. App. 1993) (“Once the Commonwealth has established a prima facie case, 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.”).

ALC’s Authority to Reverse the DMVH’s Final Order and Decision

As an initial matter, Manuse 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, according to Manuse, “nothing in the record suggests” that substantial rights of the Department were prejudiced by the DMVH’s Final Order and Decision. I disagree.

Pursuant to Section 1-23-380(A)(5), the ALC may reverse a decision of the DMVH where an error has caused (1) substantial rights of the appellant (2) to be prejudiced. With respect to the first requirement, the right of the Department, as a State agency, to implement the administrative suspension of a motorist who refuses to submit to chemical testing is a substantial right. The State has a strong interest in maintaining the safety of its roads,[4] and the purpose of administratively suspending a motorist’s license for refusing to submit to chemical testing is to protect those who use such roads.[5]

In Mackey v. Montrym, 443 U.S. 1 (1979), the United States Supreme Court explained how, with respect to Massachusetts’ implied consent law, a State’s interest in public safety is “substantially served” by the summary suspension of those motorists who refuse to submit to breath testing:

First, the very existence of the summary sanction of the statute serves as a deterrent to drunken driving. Second, it provides strong inducement to take the breath-analysis test and thus effectuates the Commonwealth’s interest in obtaining reliable and relevant evidence for use in subsequent criminal proceedings. Third, in promptly removing such drivers from the road, the summary sanction of the statute contributes to the safety of public highways.

Mackey, 443 U.S. at 18. Similarly, the South Carolina Court of Appeals has also recognized the important function that such suspensions serve. See Nelson, 364 S.C. at 522, 613 S.E.2d at 548-49 (“Were drivers free to refuse alcohol and drug testing without suffering penalty, the current system of detecting, testing, and prosecuting drunk drivers would simply fail.”). Therefore, as the aforementioned cases make clear, the Department’s right to implement Manuse’s administrative suspension is a substantial right.

With regard to the second requirement, errors that affect the outcome of a case are prejudicial. See, e.g., State v. Covert, 368 S.C. 188, 628 S.E.2d 482 (Ct. App. 2006) (remanding case after finding that legal error was not harmless since it “could have reasonably affected the result of the trial”). Here, the Department is arguing that the reason given by the hearing officer for rescinding Manuse’s suspension is permeated with error. Therefore, if the Department is correct, then the Department was prejudiced by this error.

For these reasons, this Court will not, as Manuse urges, affirm the DMVH’s Final Order and Decision without addressing the substantive issues on appeal.

Implied Consent Rights Advisement

Section 56-5-2950 is widely called the “implied consent” statute,[6] and the rights set forth in Section 56-5-2950 are commonly referred to as “implied consent” rights.[7] However, according to SLED Implied Consent Policy 8.12.5(D), 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.[8] SLED has named these eight advisements as follows: (1) DUI Advisement; (2) Felony DUI Advisement; (3) Commercial Driver’s License Advisement; (4) Zero Tolerance Advisement; (5) Boating Under the Influence (BUI) Advisement; (6) BUI Involving Death, Bodily Injury, or Property Damage Advisement; (7) Flying Under the Influence (FUI) Advisement; and (8) Shooting Under the Influence (SUI) Advisement.[9] All of SLED’s implied consent advisements are set forth on forms that are provided to law enforcement agencies by SLED.[10] Of the eight different implied consent advisements, it is the DUI Advisement that sets forth the rights enumerated in Section 56-5-2950.[11]

Here, the DMVH hearing officer found that Officer Postell read “the Implied Consent Advisement” to Manuse. Nevertheless, she found that, because there are several different implied consent advisements, there was “no way to determine” whether Manuse was advised of the proper rights. Therefore, she concluded that judgment should go in Manuse’s favor. As noted above, the possibility of drawing two inconsistent conclusions from the evidence presented does not prevent the agency’s findings from being supported by substantial evidence. However, in this case, there is no conflicting evidence from which to reach two possible conclusions. Although different implied consent advisements exist, there is no evidence in the record supporting the conclusion that the wrong advisement was given to Manuse.

Moreover, the evidence that is in the record strongly suggests that Officer Postell did in fact give Manuse the correct advisement, i.e., the DUI Advisement. For instance, Officer Postell testified that he not only handed Manuse a copy of “the advisement of implied consent rights,” but he also read it to her. Importantly, the name of each implied consent advisement is set forth in bold, capital letters at the top of each advisement. See Cole & Huff, supra note 10, at 236, 341-42 (setting forth copies of the eight different implied consent advisements). Additionally, each advisement clearly states the statutory violation for which the individual has been detained. See id. For instance, the first bulleted item in the FUI Advisement reads: “You are under arrest for operating or acting as a flightcrew member of aircraft while under the influence of alcohol or drugs, Section 55-1-100, South Carolina Code of Laws 1976, as amended.” See Cole & Huff, supra note 10, at 236.

Second, the evidence in the record shows that Officer Postell took actions that were consistent with a DUI refusal situation, and that were inconsistent with other “implied consent” refusal situations. For instance, on the Notice of Suspension, Officer Postell checked the “Refusing to submit to a breath, blood or urine test” box that was located under the heading, “Any age under arrest for DUI.” He did not check the “Refusing to submit to a breath, blood or urine test” box that was located under the heading, “Under the Age of Twenty-One (21) and not under Arrest for DUI,” which would have been appropriate for a Zero Tolerance refusal situation. See S.C. Code Ann. § 56-1-286 (2006) (Zero Tolerance statute); see also Cole & Huff, supra note 10, at 342 (setting forth copy of Zero Tolerance Advisement). Additionally, under “Vehicle Type,” Officer Postell checked “Noncommercial,” rather than “Commercial.”[12] Moreover, to penalize Manuse for refusing testing, Officer Postell suspended Manuse’s driver’s license. Notably, the BUI, FUI and SUI statutes do not list suspension of one’s driver’s license as a possible penalty for refusing testing. See S.C. Code Ann. § 50-21-114(E) (Supp. 2006) (stating that penalty for refusing the BUI implied consent test is 180-day suspension of privilege to operate a water device); S.C. Code Ann. § 55-1-100(B) (Supp. 2006) (stating that penalty for refusing the FUI implied consent test is fine of $200 or imprisonment for a period of between 48 hours and 30 days, or both); S.C. Code Ann. §§ 23-31-400 to 23-31-420 (Supp. 2005) (not setting forth a penalty for refusing the SUI implied consent test); see also Cole & Huff, supra note 10, at 236, 342 (setting forth copies of BUI, FUI and SUI advisements). Furthermore, Officer Postell allowed Manuse to refuse testing.[13] Thus, based on the foregoing, it appears that Officer Postell correctly understood all of the facts relevant to determining which advisement to give to Manuse.

Finally, Officer Postell testified that he was certified to administer DataMaster tests. Importantly, as SLED policy makes clear, one portion of the DataMaster administration process is the provision of the implied consent advisement.[14] Thus, the evidence presented at the hearing demonstrated that Officer Postell had received training on when to give each different implied consent advisement.

Taken together, the foregoing constituted prima facie evidence that Officer Postell gave Manuse the correct implied consent advisement. See State v. Parker, 271 S.C. 159, 163-64, 245 S.E.2d 904, 906 (1978) (holding that a breath test operator’s testimony that he had been certified by the South Carolina Law Enforcement Division constituted prima facie evidence that the breath test was administered by a qualified person in the proper manner); see also 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.”).[15] The burden therefore shifted to Manuse to present evidence showing that Officer Postell failed to follow the requisites of Section 56-5-2950(a) in administrating the DataMaster test. Nevertheless, Manuse did not present any evidence to demonstrate that the wrong advisement was given to her.^[16] Therefore, there is nothing in the record, other than mere speculation, indicating that Manuse was not given the correct advisement. Speculation alone does not meet the substantial evidence standard. See Herndon v. Morgan Mills, Inc., 246 S.C. 201, 217, 143 S.E.2d 376, 385 (1965) (reversing lower tribunal’s determination that employee’s death was causally connected to the accident at issue where the determination was supported only by “speculation and surmise”). In other words, the only reasonable conclusion to be reached based upon the evidence in the record is that Officer Postell gave Manuse the DUI Advisement. See 2 Kenneth S. Broun et al., McCormick on Evidence § 338 (John W. Strong ed., 5^th ed. 1999).

Consequently, it was error for the DMVH hearing officer to rescind Manuse’s suspension on the grounds that Officer Postell’s testimony failed to sufficiently establish that the correct implied consent rights advisement was given to Manuse. See, e.g., Arkwright Mills, 217 S.C. at 539, 61 S.E.2d at 168-69; Moffitt v. Commonwealth, 434 S.E.2d at 687.

Furthermore, reversal of the DMVH hearing officer’s Final Order and Decision is also warranted by the Court of Appeals’ decision in Taylor, 368 S.C. 33, 627 S.E.2d 751, a case involving a motorist’s refusal to submit to chemical testing. In Taylor, the Court of Appeals held that “a violation of section 56-5-2950 without resulting prejudice will not lead to a suppression of the evidence obtained pursuant to [section 56-5-2950].” Taylor, 368 S.C. at 38, 627 S.E.2d at 754.

In this case, even if this Court were to agree with the hearing officer’s conclusion that Officer Postell’s testimony failed to adequately establish that Manuse was given the correct implied consent advisement, based on the existing record, a finding of prejudice would not be warranted.[17] The record clearly demonstrates that Manuse exercised both her right to refuse testing and her right to request an administrative hearing. Additionally, the record also indicates that Manuse was advised of her right to have a qualified person of her own choosing conduct an additional independent test.[18] Thus, it appears that the only plausible way prejudice could have occurred is if the information contained in the implied consent advisement regarding the consequences of refusing testing affected Manuse’s decision to refuse.

However, the record does not demonstrate that that occurred in this case. For instance, Manuse provided no testimony as to how she made her decision to refuse testing. Therefore, it is unclear what, if any, effect the implied consent rights advisement had on Manuse’s decision to refuse testing.[19] Moreover, in order to make a credible determination as to whether a motorist arrested for DUI suffered prejudice as a result of receiving the wrong implied consent advisement, it is generally important to know which specific incorrect advisement she received. For instance, while the DUI Advisement informs motorists that their licenses must be suspended for at least ninety days if they refuse testing,[20] the Zero Tolerance Advisement informs motorists that their licenses must be suspended for at least six months if they refuse testing.[21] Thus, receiving the Zero Tolerance Advisement, rather than the DUI Advisement, would likely make a motorist less inclined to refuse testing — not more so. In this case, the only evidence in the record regarding the implied consent advisement is the evidence discussed above. Certainly, if such evidence is insufficient to show that Manuse was given the DUI Advisement, then it is also insufficient to demonstrate that Manuse was not given the Zero Tolerance Advisement. Consequently, based on the existing record, a finding of prejudice in this case would be too conjectural and therefore would not be warranted. Accordingly, for this reason as well, the DMVH’s Final Order and Decision must be reversed.

ORDER

IT IS THEREFORE ORDERED that the DMVH’s Final Order and Decision is REVERSED.

IT IS SO ORDERED.

______________________________

Ralph K. Anderson, III Administrative Law Judge

March 12, 2008

Columbia, South Carolina