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
and Decision was issued following an administrative hearing held pursuant to
S.C. Code Ann. § 56-5-2951(B)(2) (2006). The Department claims that the DMVH
erroneously rescinded the driver’s license suspension of Respondent Gene Monroe
Wise (“Wise”). The Administrative Law Court (“ALC” or “Court”) has
jurisdiction to hear 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 as set forth below.
BACKGROUND
On January 22, 2006, while on routine patrol in Saluda County, Officer H.A. Taylor, Jr. (“Officer Taylor”) of the South Carolina Highway Patrol
observed Wise’s vehicle travel off the right shoulder of the roadway. Officer
Taylor turned around and began to follow Wise’s vehicle. He observed Wise’s
vehicle cross the center line several times, as well as the white fog line.
Officer Taylor initiated a traffic stop. As he approached Wise’s vehicle, he immediately
smelled a strong odor of alcohol. Officer Taylor asked Wise to perform three
field sobriety tests. Wise performed poorly on the tests and was unsteady on
his feet throughout the testing process. Officer Taylor arrested Wise for
driving under the influence (“DUI”) and placed him in his patrol car. While
searching Wise’s vehicle, Officer Taylor discovered an open container of
alcohol. Officer Taylor transported Wise to the Saluda Detention Center for a breath test. Wise refused to submit to the breath test. Based on this refusal, Officer
Taylor issued Wise a Notice of Suspension pursuant to S.C. Code Ann. §
56-5-2951(A) (2006).
Thereafter,
pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (2006), Wise filed a request for
an administrative hearing to challenge the suspension. An administrative
hearing was held on April 20, 2006. Officer Taylor appeared at the hearing on
behalf of the Department, but was not assisted by counsel. Wise was
represented by his attorney at the hearing, but did not personally appear.
At
the hearing, Officer Taylor testified that, after arresting Wise for DUI and
placing him in his patrol car, he read Wise a “DUI type of paper” that advised
Wise of the procedure that would be followed at the Saluda Detention Center. He further testified that, upon arriving at the Saluda Detention Center, he advised Wise “of his implied consents while he had that paper in his hands.” He
later testified that “[a]gain, upon arrival at the jail and again in conduction
of the . . . test itself, [Wise] was handed a copy of the advisement of implied
consent rights as I read them to him.”
Wise’s
attorney did not cross-examine Officer Taylor regarding the implied consent
advisement given to Wise, and did not introduce any evidence at the hearing. During
his closing statement, Wise’s attorney argued that Officer Taylor’s failure to
specifically testify as to which implied consent advisement was given to Wise
warranted the rescission of Wise’s suspension.
On May
22, 2006, the DMVH hearing officer issued a Final Order and Decision, in which she
rescinded Wise’s suspension. In doing so, she explained that “no documentation
was offered into evidence to prove whether the proper Advisement was given in
writing.” The Department now appeals.
ISSUE
ON APPEAL
1. Was
it error for the DMVH hearing officer to rescind Wise’s suspension on the
grounds that Officer Taylor failed to offer documentation to prove that the
proper implied consent advisement was given in writing?
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 (Supp. 2006); 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. 2006).
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).
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. 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). According to the South Carolina
Supreme Court, Section 56-5-2951(B)(2) hearings should be designed so as to
handle license revocation matters quickly. See State v.
Bacote, 331 S.C. 328, 333, 503 S.E.2d 161, 164 (1998).
Failure
to Specify Which Implied Consent Rights Advisement Was Given
Section
56-5-2950 is widely called the “implied consent” statute, and the rights set forth in Section 56-5-2950 are commonly referred to as
“implied consent” rights.
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. 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 Advisement; and (8) Shooting Under
the Influence Advisement. SLED Implied Consent Policy 8.12.5(D). Of these eight
different advisements, it is the DUI Advisement that sets forth the rights
enumerated in Section 56-5-2950. See Ronnie M. Cole & James B.
Huff, Handling Traffic Cases in South Carolina 341 (Candice Koopman Lockman
ed., 4th ed. 2005) (setting forth copy of DUI Advisement).
The Department argues that the DMVH hearing officer
erred by rescinding Wise’s suspension on the grounds that Officer Taylor failed
to submit any documentation to prove that the proper implied consent advisement
was given to Wise in writing. The Department essentially contends that Officer
Taylor’s testimony at the hearing constituted prima facie evidence that Wise
was advised in writing of his Section 56-5-2950 rights. According to the
Department, because Wise did not present any evidence to refute this evidence,
rescission of Wise’s suspension was not warranted. I agree.
Once prima facie evidence is offered to show that a
motorist was advised in writing of the rights enumerated in Section 56-5-2950, the
burden shifts to the motorist to produce evidence showing that he was not so
advised. See State v. Parker, 271 S.C. 159, 164, 245 S.E.2d 904,
906 (1978); see also Ponce v. Commonwealth, Dep’t of Transp.,
Bureau of Driver Licensing, 685 A.2d 607, 610-11 (Pa. Commw. Ct. 1996); Johnson v. Director of Revenue, 168 S.W.3d 139, 142 (Mo. Ct. App. 2005). 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, the Department presented prima facie evidence to
show that Wise was given the DUI Advisement in writing. Officer Taylor
testified that he arrested Wise for DUI and that he read Wise a “DUI type of
paper” that advised Wise of the procedures that would be followed at the Saluda Detention Center.
He also testified that he advised Wise of “his implied consents” and
that Wise “was handed a copy of the advisement of implied consent rights as I
read them to him.” Finally, Officer Taylor testified that he was a certified
DataMaster operator, and that Wise refused testing.
Taken together, and in light of the fact that there is nothing in the record
that suggests that Officer Taylor gave Wise the wrong advisement, this testimony constituted prima facie evidence that Wise was given the DUI
Advisement in writing. See, e.g., Parker, 271 S.C. at
163-64, 245 S.E.2d at 906 (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.”)
Thus, because the Department presented prima facie
evidence to show that Wise was advised in writing of the rights enumerated in
Section 56-5-2950, the burden shifted to Wise to present evidence showing that
he was not so advised. Wise did not present any such evidence. Therefore, the
DMVH hearing officer erred by rescinding Wise’s suspension.
Furthermore, reversal of the DMVH hearing officer’s
Final Order and Decision is also warranted by the Court of Appeals’ recent decision
in Taylor, supra note 5. In Taylor, the Court of Appeals
held that a violation of Section 56-5-2950, without resulting prejudice, will
not lead to the suppression of 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 assume that Wise was given the wrong advisement, it could not
properly determine whether or not Wise was prejudiced thereby, since there is
no evidence in the record regarding which incorrect advisement Wise was given.
Importantly, it is not immediately apparent that Wise would have been
prejudiced by receiving the wrong advisement. For instance, the Zero Tolerance
Advisement informs motorists that their licenses must be suspended for at least
six months if they refuse testing. See Cole & Huff, supra,
at 342 (setting forth copy of Zero Tolerance Advisement); see also S.C.
Code Ann. § 56-1-286(I)(1) (2006). In contrast, the DUI Advisement informs
motorists that their licenses must be suspended for at least ninety days if
they refuse testing. See Cole & Huff, supra, at 341 (setting
forth copy of DUI Advisement); see also S.C. Code Ann. § 56-5-2951(I)
(2006). Thus, receiving the Zero Tolerance Advisement, rather than the DUI
Advisement, would likely make a motorist less inclined to refuse testing
— not more so. Consequently, based on the existing record, a finding of
prejudice in this case would require too much guesswork and therefore is not
warranted. Accordingly, for this reason as well, the DMVH hearing officer’s
Final Order and Decision must be reversed.
ORDER
It
is hereby ordered that the DMVH’s Final Order and Decision is REVERSED and the
Department’s suspension of Wise’s driver’s license is reinstated.
AND IT IS SO ORDERED.
______________________________
John D. McLeod
Administrative
Law Judge
March 22, 2007
Columbia, South Carolina
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