ORDERS:
ORDER
SCDL Number: 007382343
STATEMENT
OF THE CASE
This matter is
before the Administrative Law Court (the “ALC” or “Court”) pursuant to the
appeal of the South Carolina Department of Motor Vehicles (the “Department”) of
the Order of the South Carolina Division of Motor Vehicle Hearings (the “DMVH”),
dated March 1, 2006. The DMVH’s Order was issued in connection with an
administrative hearing that was held pursuant to S.C. Code Ann. § 56-5-2951(B)(2)
(2006). The 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
Order is reversed and this case is remanded to the DMVH as set forth below.
BACKGROUND
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), cert. granted on November
17, 2005 (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)). 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.
Under S.C. Code
Ann. § 56-5-2951(A) (2006), the license of a motorist who refuses to submit to a
test provided for under Section 56-5-2950(a) or who registers an alcohol concentration
of 0.15% or more on such a test must be immediately suspended. 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; (3) refused to submit to a test pursuant to
Section 56-5-2950; or (4) consented to taking a test pursuant to Section
56-5-2950, and the: (a) reported alcohol concentration at the time of testing
was fifteen one-hundredths of one percent or more; (b) individual who
administered the test or took samples was qualified pursuant to Section
56-5-2950; (c) tests administered and samples obtained were conducted pursuant
to Section 56-5-2950; and (d) machine was working properly. S.C. Code Ann. §
56-5-2951(F) (2006).
Importantly, prior to
January 1, 2006, the Department’s Office of Administrative Hearings held the
hearings requested under Section 56-5-2951(B)(2). However, in the summer of
2005, S.C. Code Ann. § 1-23-660 was extensively amended by Act No. 128, § 22,
2005 S.C. Acts 1503 (the “DMVH Act”). Pursuant to the amended Section 1-23-660,
the DMVH was created as a division of the ALC and, as of January 1, 2006, “the
duties, functions, and responsibilities of all hearing officers and associated
staff” of the Department were transferred to the DMVH. See S.C. Code
Ann. § 1-23-660 (Supp. 2005). Therefore, it is now the DMVH that conducts
these hearings.
FACTS
On December 2, 2005, Respondent was arrested for driving a motor vehicle
while under the influence of alcohol. Respondent was issued a written Notice
of Suspension pursuant to Section 56-5-2951(A) based on his alleged refusal to
submit to a breath test as required by Section 56-5-2950(a). On December 12,
2005, pursuant to Section 56-5-2951(B)(2), Respondent requested an
administrative hearing to challenge the suspension. The very next day, the
Department issued an “Order and Notice” that stated: “Due to the Hearing
Officer being unavailable within the thirty days as required by statute, it is
hereby Ordered that this matter be scheduled for the first available date.”
The Order and Notice thereafter stated that the hearing would be held on
January 12, 2006 at the Aiken DPS. The hearing was held, as scheduled, on January
12, 2006 by DMVH Hearing Officer Tracy Holland (“DHO Holland”). On March 1,
2006, Robert Harley, the Chief Hearing Officer of the DMVH (“DHO Harley”),
issued an Order, which stated: “As a result of the court ruling by the South
Carolina Court of Appeals in Starnes v. South Carolina Department of Motor
Vehicles, the suspension of your driver’s license is hereby rescinded.”
ISSUES
ON APPEAL
1. Since
Respondent’s administrative hearing was held thirty-one days after he requested
it, does the Court of Appeals’ decision in Starnes require that Respondent’s
suspension be rescinded?
2. Since DHO Holland did not issue a final order within thirty days after the hearing was held, does
the Court of Appeals’ decision in Starnes require that Respondent’s
suspension be rescinded?
3. Did the
caption used by DHO Harley in his Order accurately reflect the nature of this
action?
STANDARD OF REVIEW
The DMVH is
authorized by law to determine contested case hearings of the Department. See S.C. Code Ann. § 1-23-660 (Supp. 2005). Therefore, the DMVH is an “agency”
under the Administrative Procedures Act (APA). See S.C. Code Ann. §
1-23-310(2) (2005). As such, appeals from the decisions of the DMVH are
properly decided under the APA’s standard of review. See S.C. Code Ann.
§ 1-23-380(A) (2005); 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).
Importantly, the standard used by appellate bodies to review agency decisions
is provided by S.C. Code Ann. § 1-23-380(A)(6) (2005), which states:
The court shall not substitute its judgment for that 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 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.
Thus, pursuant to
the APA, this Court’s review is limited to deciding whether DHO Harley’s Order
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 (S.C. 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. Importantly, the party challenging an agency action 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
Starnes involved
the interpretation of S.C. Code Ann. § 56-5-2951(H) (Supp. 1998), which was the
precursor to S.C. Code Ann. § 56-5-2951(F) (2006). In Starnes, the
Department of Public Safety suspended a motorist’s license pursuant to S.C. Code Ann. § 56-5-2951(A) (Supp.
1998) based on the results of a breath test that the motorist submitted to
after being arrested for driving under the influence. The Department of Public
Safety’s hearing officer sustained the suspension, but the circuit court
reversed. The Department of Public Safety subsequently appealed to the Court
of Appeals, which affirmed the circuit court’s decision. Importantly, the
Court of Appeals based its decision on two different grounds.
First, the Court
of Appeals held that the Department of Public Safety lacked subject matter
jurisdiction to sustain the suspension since it failed to convene the
administrative hearing within the time period set forth in Section 56-5-2951(H). Starnes, 342 S.C. at 222, 535 S.E.2d at 668. At the time, Section
56-5-2951(H) stated in pertinent part: “An administrative hearing must be held
within ten days after the request for the hearing is received by the
department. However, upon a showing of exigent circumstances by either party,
a continuance may be granted not to exceed thirty days.” Id. at 220,
535 S.E.2d at 667. Because the parties agreed that the motorist’s hearing did
not occur within the statutory ten-day period and that neither party requested
a continuance, the Court of Appeals affirmed the circuit court’s decision on
this ground. Starnes, 342 S.C. at 220-22, 535 S.E.2d at 666-68.
Second, the Court
of Appeals held that the Department of Public Safety also lacked subject matter
jurisdiction to sustain the suspension since it failed to issue a written order
to the motorist within thirty days after the administrative hearing was
concluded, as was required by Section 56-5-2951(H). Id. at 222, 535
S.E.2d at 668. At the time, Section 56-5-2951(H) stated in pertinent part: “A
written order must be issued to the person upholding the suspension of
the person’s license, permit, or nonresident’s operating privilege, or denying
the issuance of a license or permit within thirty days after the conclusion
of the administrative hearing.” Id. (emphasis added). Because the
Department of Public Safety admitted that it did not meet this requirement, the
Court of Appeals affirmed the circuit court’s decision on this ground as well. Id.
Here, it is not completely
clear which Starnes holding DHO Harley relied upon in making his decision
to rescind Respondent’s suspension. Notably, the administrative hearing was
held thirty-one days after Respondent requested the hearing, and a final order was
not issued within thirty days after the hearing was held. Therefore, because
of this ambiguity, both Starnes holdings will be discussed in the
context of this case.
Timeliness
of Hearing
First, the Department
argues that, with respect to the issue of whether the suspension should be
rescinded due to the untimeliness of the hearing, the first Starnes holding is not applicable since Section 56-5-2951 has been amended since the Starnes decision was issued, and the Department fully complied with the then-current
version of Section 56-5-2951 in scheduling the hearing. I agree.
The current
subsection of Section 56-5-2951 that sets forth the time period in which an
administrative hearing must be held is subsection (F). At the time Respondent
requested his hearing, subsection (F) stated in pertinent part:
An administrative hearing must be held
within thirty days after the request for the hearing is received by the [Department
of Motor Vehicles]. If the department does not hold the hearing within thirty
days, a written order must be issued by the department within thirty days. The
order must set forth the reasons why the hearing was not held within thirty
days, and a new hearing must be scheduled. If the department does not issue a
written order within thirty days or fails within thirty days to notify the
defendant of a new hearing, the person must have his driver’s license, permit,
or nonresident operating privilege reinstated.
S.C. Code Ann. § 56-5-2951(F)
(Supp. 2004).
In this case, it
is clear that the Department complied with Section 56-5-2951(F). Notably, Respondent
requested an administrative hearing on December 12, 2005. On December 13,
2005, the Department issued an “Order and Notice” that stated: “Due to the
Hearing Officer being unavailable within the thirty days as required by
statute, it is hereby Ordered that this matter be scheduled for the first
available date.” The Order and Notice thereafter stated that the hearing would
be held on January 12, 2006 at the Aiken DPS. Thus, because the Department
issued an Order and Notice within thirty days after receiving Respondent’s hearing
request that set forth the reasons why the hearing would not be held within the
thirty-day statutory time period and that properly notified Respondent of the scheduled
hearing, there was no violation of Section 56-5-2951(F). Therefore, DHO
Harley’s Order will not be affirmed on this ground.
Timeliness
of Order
Next, the Department
argues that, with respect to the issue of whether the suspension should be
rescinded due to the untimeliness of the final order, the second Starnes holding should not be followed since it has been effectively overruled by the
South Carolina Supreme Court’s recent decision in Johnston v. S.C. Dep’t of
Labor, Licensing, and Regulation, S.C. Real Estate Appraisers Bd., 365 S.C.
293, 617 S.E.2d 363 (2005). I agree.
Section 56-5-2951(F)
now sets forth the time period in which written orders must be issued. At the
time Respondent’s hearing was held, Section 56-5-2951(F) stated in pertinent part: “A written order must be
issued to the person upholding the suspension of the person’s license, permit,
or nonresident’s operating privilege, or denying the issuance of a license or
permit within thirty days after the conclusion of the administrative hearing.”
S.C. Code Ann. § 56-5-2951(F) (2006) (emphasis added). Notably, this is the
exact same language that was evaluated by the Starnes court in making
its second holding. Nevertheless, based on the South Carolina Supreme Court’s
decision in Johnston, it is my opinion that the second holding in Starnes is no longer good law and, therefore, it should not be followed here.
In Johnston, a
licensed real estate appraiser was charged by the Real Estate Appraisers Board
with violating certain regulations applicable to those in his profession.
After an administrative hearing was held on the matter, the Board found that the
appraiser had committed the alleged violations and, thus, issued a written
order imposing a fine and suspending his license. Pursuant to S.C. Code Ann. §
40-60-150(C)(3) (Supp. 2004), the Board was required to serve written notice of its decision on the appraiser
within thirty days of issuing its final order. However, notice of the Board’s
decision was not properly served on the appraiser until after the requisite
thirty-day time period had expired. Thereafter,
the appraiser appealed the Board’s decision to the ALC. The ALC reversed the
Board’s order, finding that the Board’s failure to serve notice of its decision
within the statutorily-mandated time period divested the Board of jurisdiction
to decide the matter. Both the circuit court and the Court of Appeals affirmed
the ALC’s decision. However, the Supreme Court reversed, holding that the
failure by the Board to comply with Section 40-60-150(C)(3) did not affect the
Board’s jurisdiction. Instead, the Supreme Court held that the Board’s
decision was valid, but ineffective, until it was served upon the appraiser.
In making this decision, the Supreme Court explained:
There is no indication the Legislature
intended for the time limit to prevent the Board from having the ability to
discipline an errant appraiser if the Board fails to serve notice of the
written decision within the prescribed time period. Instead, the Legislature
intended to speed the resolution of appraiser disciplinary cases for the
benefit of all parties involved . . . We note that, although the thirty-day
time limit is mandatory, the Legislature has not provided how that mandate is
to be enforced. There is no language regarding the consequences if the Board
misses the deadline for serving written notice of its decision on the
appraiser. Accordingly, we will not assume the Legislature intended the Board
to lose its power to act for failing to comply with the statutory time limit.
Johnston, 365 S.C. at 297-98,
617 S.E.2d at 365 (internal citations omitted).
Johnston dictates
a similar result in this case. Similar to Section 40-60-150(C)(3), Section
56-5-2951(F) does not include any language regarding the consequences for the
DMVH’s failure to issue a final order within the statutory time limit. Therefore,
pursuant to Johnston, it would be wrong to assume that the legislature,
in cases such as this one, intended for the motorist to have his license
reinstated. This seems especially true here, since the legislature, with regard
to untimely hearings, did include language in Section
56-5-2951(F) mandating the reinstatement of the motorist’s license. Thus, the
fact that the legislature did not include similar language with respect to
untimely orders is indicative of the legislature’s intent for the DMVH
to retain its power to act even in situations where the DMVH has failed to timely
issue a final order.
Moreover, the recent
passage of the DMVH Act further warrants the application of Johnston,
rather than Starnes, to the present case. Importantly, in Starnes,
the Department of Public Safety was the agency responsible for holding Section
56-5-2951(B)(2) hearings and issuing final orders with regard to those hearings.
Thus, the Department of Public Safety was deprived of its power to enforce a
Section 56-5-2951(A) suspension as a result of its own failure to comply
with a statutory provision. Here, however, pursuant to the DMVH Act, the DMVH,
and not the Department, is now responsible for holding Section 56-5-2951(B)(2)
hearings and issuing final orders with regard to those hearings. Thus,
following Starnes in cases such as this one would mean depriving the
Department of its power to enforce a Section 56-5-2951(A) suspension not
because the Department failed to comply with a statutory provision, but
because an unaffiliated agency failed to comply with a statutory
provision. In contrast, following Johnston in situations like this one would
not create a comparable level of unfairness for motorists. Notably, pursuant
to S.C. Code Ann. § 56-5-2951(B)(1) (2006), a motorist who requests an
administrative hearing may obtain a “temporary alcohol restricted license” by
filing a form with the Department and paying a $100.00 fee. The temporary
alcohol restricted license allows the motorist to drive without any restrictive conditions pending the outcome of the administrative hearing or the
final decision or disposition of the matter. S.C. Code Ann. § 56-5-2951(B)(1)
(2006) (emphasis added). Thus, generally speaking, a delay in the issuance of
a final order by the DMVH has little prejudicial effect on motorists.
Respondent,
however, argues that the Johnston decision should not be applied in this
case, since the Johnston court made it “plain” that it was not
overruling Starnes. Specifically, Respondent points to the second
footnote of the Johnston decision, which states in pertinent part:
We note that the decisions of South Carolina Dep’t of Highways and Pub. Transp. v. Dickinson, 288 S.C. 189,
341 S.E.2d 134 (1986), and Starnes v. South Carolina Dep’t of Pub. Safety,
342 S.C. 216, 535 S.E.2d 665 (Ct. App. 2000) are not applicable. Both of these
cases involve the failure of the Department to hold a hearing within the
statutorily-prescribed time period following the suspension of a driver’s
license for driving while intoxicated. In these cases, both this Court and the
Court of Appeals determined that the failure to hold the requested hearing
deprived the Department of jurisdiction to hold the hearing.
Id. at 297 n.2, 617 S.E.2d
at 365.
Although this
footnote does give me some pause, I do not feel that it should be construed to
mean that the second holding in Starnes is still good law. Instead, I
think that the purpose of this footnote is to distinguish Johnston from Starnes on the basis that Starnes, unlike Johnston, involved not only an
untimely order, but also an untimely hearing. While this
footnote makes it clear that the Johnston decision does not have any
effect on the validity of the first holding in Starnes regarding
untimely hearings, the same cannot be said for the second holding in Starnes regarding untimely orders. Notably in this regard, at no point in this
footnote is the second holding in Starnes even addressed.
For these reasons,
I deem that Johnston, not Starnes, governs in this case. Accordingly, DHO Harley’s Order is hereby reversed and this case is remanded
to DHO Holland so that she may make, based on the existing record, a ruling on
the merits of this action.
Caption of DMVH’s Order
Finally, the
Department argues that DHO Harley incorrectly listed the Department as the “Petitioner”
in the caption of his Order.
Specifically, the Department argues that, since the motorist requested the
administrative hearing, the motorist is the “Petitioner.” Notably, this issue
is fundamentally tied to the question of which party bears the burden of proof
in this case. In certain types of actions, to clarify that the burden of proof
lies with the agency, the caption is drafted to reflect that the agency is the “Petitioner,”
despite the fact that it was not the agency that filed the request for a
contested case hearing. See Randy R. Lowell and Stephen P. Bates, South Carolina Administrative Practice and Procedure 201 (2004). Thus, if
the burden of proof in this case lies with the Department, then it was proper
for DHO Harley to list the Department as the “Petitioner” in the caption of his
Order.
Generally
speaking, South Carolina law requires the party that maintains “the affirmative
of the issue” to bear the burden of proof. See Carter v. Columbia and Greenville R.R. Co., 19 S.C. 20, 28-29 (1883). It could be argued that,
because Section 56-5-2951(A) mandates that the Department automatically suspend a motorist’s driver’s license when the motorist either refuses to
submit to a blood, breath or urine test or has an alcohol concentration of more
than 0.15%, the motorist is, in actuality, the party “maintaining the
affirmative of the issue” and, therefore, the burden of proof should be on the
motorist. Some state courts have come to such a conclusion. For instance, in Jess
v. State, Dept. of Justice, Motor Vehicle Div., 841 P.2d 1137 (Mont. 1992) overruled
on other grounds by Bush v. Mont. Dept. of Justice, Motor Vehicle Div.,
968 P.2d 716 (Mont. 1998), the Montana Supreme Court held that, in an action
for reinstatement of a summarily suspended driver’s license pursuant to
Montana’s implied consent law, Mont. Code Ann § 61-8-402, the burden was on the
petitioning motorist to prove that the suspension of the license was invalid. In
making this ruling, the court noted that Mont. Code Ann § 61-8-403, which
granted motorists the right to appeal summary suspensions of their driver’s
licenses, did not clearly state who had the burden of proof in the proceeding.
However, the court concluded that Mont. Code Ann § 26-1-401 was dispositive of
the issue. Notably, Section 26-1-401 provided: “The initial burden of
producing evidence as to a particular fact is on the party who would be
defeated if no evidence were given on either side. Thereafter, the burden of
producing evidence is on the party who would suffer a finding against him in
the absence of further evidence.” The court then held that, pursuant to
Section 26-1-401, the burden of proof should be on the motorist. In doing so,
the court explained:
The State’s action of immediately
seizing the driver’s license is authorized upon the appellant’s refusal to
comply with the implied consent statute, and review of the revocation is
initiated only at the request of the appellant. There is a presumption of
correctness to the State’s action until otherwise shown to be improper. Thus,
it is the appellant who is asserting the right to reinstatement of his driver’s
license by filing a petition with the District Court. If he fails to file his
petition or produce any evidence, then the suspension remains in effect. The
burden of proof falls upon the appellant to prove the invalidity of the State’s
action, rather than require the State to justify its act of revocation.
Id. at 1140 (citations
omitted). See also People v. Orth, 530 N.E.2d 210, 215 (Ill.
1988) (where, in holding that the motorist bore the burden of proof in an
action for reinstatement of a summarily suspended driver’s license, the
Illinois Supreme Court explained its holding by stating: “[T]he statute . . .
provides that ‘[s]uch hearings shall proceed in the court in the same manner
as in other civil proceedings.’ In the usual civil proceeding, the party
requesting judicial relief bears the burden of proof.”)
However, there are
several reasons why Jess and Orth should not be followed in the
present case. First of all, unlike in Montana and Illinois, the governing rule
in South Carolina for determining which party bears the burden of proof in
these types of proceedings requires that the burden of proof be placed on the
state agency suspending the license. Specifically, ALC Rule 29(B), which is
applicable here pursuant to Section 1-23-660, expressly states: “In matters involving the assessment of civil penalties, the
imposition of sanctions, or the enforcement of administrative orders,
the agency shall have the burden of proof.” (emphasis added). Notably, South
Carolina courts have referred to an administrative suspension of a motorist’s
driver’s license as a “sanction.” See State v. Price, 333 S.C.
267, 510 S.E.2d 215 (1998). Moreover, other state courts have referred to an
order suspending a motorist’s license as an “administrative order.” See, e.g., Butler v. Dep’t of Pub. Safety and Corrections, 609 So.2d
790, 791 (La. 1992); Ott v. Tex. Dep’t of Pub. Safety, 958 S.W.2d 294,
295 (Tex. App. 1998); Johnson v. Dep’t of Revenue, 27 P.3d 943, 944
(Kan. Ct. App. 2001); In re Appeal of Flannery, 39 Pa. D. & C. 4th
323, 324 (Pa. Ct. Com. Pl. 1998). Thus, because the Department is seeking to
enforce its administrative order, which imposes a sanction on Respondent, it is
clear that it should bear the burden of proof.
Second, even if ALC
Rule 29(B) were not applicable here, placing the burden of proof on the Department
would still be warranted. Importantly, in situations where it is unclear which
party bears the burden of proof, the general rule in South Carolina is that the
burden of proof is imposed on the party best able to sustain it. See, e.g., Roberts
v. Roberts, 296 S.C. 93, 99, 370 S.E.2d 881, 884 (Ct. App. 1988), affirmed
as modified on other grounds by 299 S.C. 315, 384 S.E.2d 719 (1989) (“The
general rule is that the burden of evidence is imposed on the party best able
to sustain it; so the party having peculiar knowledge of the facts or control
of evidence, relating to an issue, has the burden of evidence as to it.”); Swindler
v. Hilliard & Brooks, 31 S.C.L. (2 Rich.) 286, 307 (S.C.L. 1846) (“All
the analogies of the law lead to the conclusion that the burden of proof lies
on him who should best know what the facts are.”). With respect to proceedings
such as this one, the Department is in a much better position to present
evidence regarding the Section 56-5-2951(F) elements than a motorist is. For
instance, a motorist cannot testify as to what the arresting officer observed
prior to the arrest; therefore, in almost all cases, it would essentially be impossible
for the motorist to conclusively prove that the arrest was not lawful.
Therefore, the burden of proof should be imposed on the Department in hearings
held under Section 56-5-2951(B)(2).
Third, the Montana and
Illinois Supreme Courts notwithstanding, many state courts, in similar
situations, have concluded that the burden of proof should be placed on the
state agency suspending the license, and not the motorist. See, e.g., Durland v. Peters, 255 S.E.2d 650, 652 (N.C. Ct. App. 1979) (where in
proceeding involving a driver’s license suspension for refusal to submit to a
breathalyzer test in violation of North Carolina’s implied consent law, the North
Carolina Court of Appeals held that the Commissioner of the Division of Motor
Vehicles bore the burden of proof); Ex parte Boykin, 643 So.2d 986, 987
(Ala. 1993) (in a proceeding involving a summary driver’s license suspension
for refusal to submit to a chemical test pursuant to Alabama’s implied consent
statute, the Alabama Supreme Court concluded that “the Department failed to
carry its burden of proof”); Willis v. State, 701 P.2d 10, 11 (Ariz. Ct.
App. 1985) (in a proceeding involving an automatic driver’s license suspension
for refusal to submit to a breath test in violation of Arizona’s implied
consent law, the burden of proof was on the State); Sipes v. State ex rel.
Dep’t of Pub. Safety, 950 P.2d 881 (Okla. Ct. App. 1997) (in a proceeding
involving a driver’s license suspension for refusal to submit to a chemical
test in violation of Oklahoma’s implied consent statute, the Oklahoma court
held that the district court may review the evidence “to decide whether [the
Department of Public Safety] has in fact met its threshold burden of proof”); Spinner
v. Dir. of Revenue, 165 S.W.3d 228, 230 (Mo. Ct. App. 2005) (where in
proceeding involving a summary driver’s license suspension for driving with a
blood alcohol concentration above the legal limit, the Missouri Court of
Appeals held: “The burden of proof is on the director of revenue to establish
grounds for the suspension or revocation by a preponderance of the evidence.”); Coombs v. Pierce, 2 Cal. Rptr. 2d 249 (1991) (California DMV bore the
burden of proof at an administrative proceeding to establish the validity of
breath test results); Cole v. Driver and Motor Vehicles Servs. Branch,
87 P.3d 1120, 1131 (Or. 2004) (in a proceeding involving a summary driver’s
license suspension for driving with a blood alcohol concentration above the
legal limit, the Oregon Supreme Court held that the DMV bore the burden of
proof); Montpetit v. Comm’r of Pub. Safety, 392 N.W.2d 663, 667 (Minn.
Ct. App. 1986) (the Minnesota Commissioner of Public Safety bore the burden of proof
in a proceeding involving a driver’s license suspension for driving with a
blood alcohol concentration above the legal limit).
Finally, there are
several policy reasons for placing the burden of proof on the Department, and
not the motorist. First, by placing the burden of proof on the Department, the
risk of erroneous suspension of the motorist’s driver’s license is lessened.
The Illinois Supreme Court made this point clear in Orth:
The danger is that placing the burden
of proof upon the motorist will discourage the State from properly maintaining its
equipment, training its personnel, or preserving its records. And while one
might argue about the degree of this risk, it cannot be denied that placing the
burden of proof upon the State would reduce it very significantly. State law
enforcement personnel are hardly likely to be lax in their breathalyzer
procedures if they know that they will have to prove the results or face the
rescission of a summary suspension.
Orth, 530 N.E.2d at 214-15.
Second, driver’s licenses are quite important to individuals and, therefore,
the process of taking away a driver’s license should not be taken lightly. For
instance, in Berlinghieri v. Dep’t of Motor Vehicles, 657 P.2d 383,
387-88 (Cal. 1983), the California Supreme Court described in detail the practical
importance of a driver’s license:
In our present travel-oriented society, the retention of a
driver’s license is an important right to every person who has obtained such a
license . . . [T]he reality of contemporary society is that public
transportation systems may not meet the needs of many travelers and other forms
of transportation, such as taxicabs, are not economically feasible for a large
portion of the population. Whether a driver’s license is required only for
delivering bread, commuting to work, transporting children or the elderly,
meeting medical appointments, attending social or political functions, or any
combination of these or other purposes, the revocation or suspension of that
license, even for a six-month period, can and often does constitute a severe
personal and economic hardship.
Third, it simply seems unfair to
require the motorist to prove his own innocence or risk suspension of his
driver’s license. See Peabody Coal Co. v. Ralston, 578 N.E.2d
751, 754 (Ind. Ct. App. 1991) (“Similar to the rationale for affixing the
ultimate burden of proof on the state in criminal matters, it would be a
fundamentally unfair procedure to shift the burden of persuasion to one charged
with a [regulatory] violation to prove his innocence.”).
For these reasons, I
find that the burden of proof should be placed on the Department in cases
involving driver’s license suspensions under Section 56-5-2951(A). Because I
find that the Department bears the burden of proof in this case, it was not
error for DHO Harley to list the Department as the “Petitioner” in the caption
of his Order.
order
IT IS HEREBY ORDERED that DHO Harley’s Order is REVERSED and the case is REMANDED to DHO Holland so that she may make, based on the existing record, a ruling on
the merits of this action.
AND IT IS SO ORDERED.
______________________________
John D. McLeod
Administrative
Law Judge
September 11, 2006
Columbia, South Carolina
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