South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
SCDMV vs. Scott Richard Myers

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Appellant:
South Carolina Department of Motor Vehicles

Respondent:
Scott Richard Myers
 
DOCKET NUMBER:
06-ALJ-21-0700-AP

APPEARANCES:
n/a
 

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 The Department claims that the DMVH erroneously rescinded the driver’s license suspension of Respondent Scott Richard Myers (“Myers”). 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 Department’s brief,[1] the DMVH’s Final Order and Decision is reversed as set forth below.

BACKGROUND

On June 1, 2006, Officer Bruce Evanson (“Officer Evanson”), accompanied by Officer Michelle Bacon, both of the Mount Pleasant Police Department, responded to the scene of an accident at the entrance of the KOA Campground near Highway 17 North in Mount Pleasant, South Carolina. Upon arriving at the scene of the accident, Officer Evanson observed a Honda SUV on its side in the ditch. Officer Evanson spoke with the driver of this vehicle, Constance Miller, who indicated that she had been rear-ended by another vehicle and then pushed into the ditch. Officer Evanson observed another vehicle at the location, a dark Mazda, with extensive front end damage, and he approached the driver of this vehicle. The driver of this vehicle, Myers, stated that he had rear-ended another vehicle as he was turning onto Highway 17 from another road. After noticing that Myers’ eyes were bloodshot, Officer Evanson asked Myers if he had consumed any alcoholic beverages, and Myers indicated that he had drank between 10 to 12 beers. Officer Evanson advised Myers that he was under investigation for driving under the influence (“DUI”) and read Myers his Miranda warnings. Myers agreed to perform the field sobriety tests, which, according to Officer Evanson, Myers failed four field sobriety tests. Officer Evanson arrested Myers for DUI based upon the accident and his and Officer Bacon’s observations at the scene. Officer Bacon transported Myers to the Mount Pleasant Police Department for a breath test. Myers refused to submit to the breath test. Based on this refusal, Officer Bacon issued Myers 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), Myers filed a request for an administrative hearing to challenge the suspension. An administrative hearing was held on July 12, 2006. Officers Evanson and Bacon appeared at the hearing on behalf of the Department, but were not assisted by counsel.

At the hearing, Officer Bacon provided the following testimony regarding the implied consent advisement given to Myers:

I read the advisement of implied consent rights to Mr. Myers as he followed along. I signed, dated it, I gave him a copy. I asked Mr. Myers if he wished to submit to a breath sample and he refused. I completed the Mt. Pleasant, the operator’s supplemental form. I entered all of Mr. Myers biographical data required by the datamaster, and I did mark him for refusal. The machine printed the information on the breath alcohol analysis test report in the three signature lines. I signed the copy, as did Mr. Myers. Gave him a copy.

In his closing statement, Myers’ attorney made a motion to rescind Myers’ suspension on the basis that there was no showing that Myers was aware that he would lose his license if he refused to take the breath test.

On July 12, 2006, the DMVH hearing officer issued a Final Order and Decision, in which she rescinded Myers’ suspension. In doing so, she explained that there was no “corroborating evidence or testimony to show what Implied Consent Advisement was given to Respondent.” The Department now appeals.

ISSUE ON APPEAL[2]

1.      Was it error for the DMVH hearing officer to rescind Myers’ suspension on the grounds that Officer Bacon failed to offer corroborating evidence to prove that the correct implied consent advisement was given to Myers?

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).[3] 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.[4] 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,[5] and the rights set forth in Section 56-5-2950 are commonly referred to as “implied consent” rights.[6] However, according to SLED Implied Consent Policy 8.12.5(D),[7] 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 Myers’ suspension on the grounds that Officer Bacon failed to submit any corroborating evidence to prove that the proper implied consent advisement was given to Myers. According to the Department, there is substantial evidence in the record, in the form of Officer Bacon’s testimony, that Officer Bacon provided Myers the correct implied consent advisement. I agree.

Once prima facie evidence is offered to show that law enforcement officers complied with a specific Section 56-5-2950 requirement, the burden shifts to the motorist to produce evidence demonstrating noncompliance. 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 Myers was given the DUI Advisement. Officer Evanson testified that he arrested Myers for DUI. Officer Bacon then testified that Myers was given his rights concerning the DataMaster, and that Myers was told of the consequences of refusing the test. She further testified that she “read the advisement of implied consent rights to Mr. Myers,” and that Myers was given a signed copy of the advisement of implied consent rights prior to refusing testing. Finally, Officer Bacon testified that she was a certified DataMaster operator, and that Myers refused testing.[8] Taken together, and in light of the fact that there is nothing in the record that suggests that Officer Bacon gave Myers the wrong advisement,[9] this testimony constituted prima facie evidence that Myers was given the DUI Advisement. 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);[10] 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.”).[11]

Thus, because the Department presented prima facie evidence to show that Myers was advised in writing of the rights enumerated in Section 56-5-2950, the burden shifted to Myers to present evidence showing that he was not so advised. Myers did not present any such evidence. Therefore, the DMVH hearing officer erred by rescinding Myers’ 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 6. 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 it were to be assumed that Myers was given the wrong advisement, without knowing which incorrect advisement Myers was given, it is impossible to properly determine whether or not Myers was prejudiced thereby.[12] 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 Myers’ driver’s license is reinstated.

AND IT IS SO ORDERED.

______________________________

John D. Geathers

Administrative Law Judge

April 10, 2007

Columbia, South Carolina



[1] Myers failed to submit a brief for this appeal although he was granted an extension, on two separate occasions, to file his appellate brief. However, this fact alone does not require this Court to find in favor of the Department. See ALC Rule 38; see also Rule 208(a)(4), SCACR. Nonetheless, in situations such as this one, this Court will not “search the record for reasons to affirm.” See Wierszewski v. Tokarick, 308 S.C. 441, 444, 418 S.E.2d 557, 559 n.2 (Ct. App. 1992).

[2] Although the Department presented additional issues on this appeal, because the issue discussed herein is dispositive, the other issues need not be addressed. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (noting that an appellate court need not address remaining issues when a prior issue is dispositive).

[3] Pursuant to S.C. Code Ann. § 1-23-380(B) (Supp. 2006), administrative law judges must conduct appellate review in the same manner prescribed in Section 1-23-380(A).

[4] The length of the suspension period ranges from 90 days to 180 days, depending upon whether the individual has been convicted of a DUI-related offense within the past ten years. See S.C. Code Ann. § 56-5-2951(I) (2006).

[5] See e.g., State v. Haase, 367 S.C. 264, 267, 625 S.E.2d 634, 635 (2006); State v. Frey, 362 S.C. 511, 516, 608 S.E.2d 874, 877 (Ct. App. 2005); Bacote, 331 S.C. at 329, 503 S.E.2d at 162; Kelly v. S.C. Dep’t of Highways, 323 S.C. 334, 336, 474 S.E.2d 443, 444 (Ct. App. 1996); S.C. Dep’t of Highways and Pub. Transp. v. Sanford, 318 S.C. 44, 45, 455 S.E.2d 710, 711 (Ct. App. 1995); State v. Baker, 310 S.C. 510, 511, 427 S.E.2d 670, 671 (1993); State v. Cribb, 310 S.C. 518, 520, 426 S.E.2d 306, 308 (1992); State v. Hunter, 305 S.C. 560, 561, 410 S.E.2d 242, 242 (1991); Shumpert v. S.C. Dep’t of Highways and Pub. Transp., 306 S.C. 64, 65, 409 S.E.2d 771, 772 (1991); State v. Williams, 297 S.C. 290, 293, 376 S.E.2d 773, 774 n.1 (1989).

[6] See, e.g., Taylor v. S.C. Dep’t of Motor Vehicles, 368 S.C. 33, 35, 627 S.E.2d 751, 752 (Ct. App. 2006), Nelson, 364 S.C. at 517, 613 S.E.2d at 546; Sponar, 361 S.C. at 36-37, 603 S.E.2d at 413; see also Haase, 367 S.C. at 266; 625 S.E.2d at 634 (calling Section 56-5-2950 rights “implied consent warnings”); but see State v. Cuevas, 365 S.C. 198, 201, 616 S.E.2d 718, 720 (Ct. App. 2005) (“Officers gave Cuevas the implied consent warnings for felony DUI . . .”).

[7] SLED’s implied consent policies can be found at http://www.sled.sc.gov.

[8] Because Myers was told of the consequences of refusing testing, and was allowed to refuse testing, it appears rather clear that Officer Bacon did not read Myers the Felony DUI Advisement or the BUI Involving Death, Bodily Injury, or Property Damage Advisement. See Cole & Huff, supra, at 341 (setting forth copy of Felony DUI Advisement, which states that the accused “must” submit to chemical testing and which does not state that the accused’s driver’s license will be suspended for refusing testing); see also Cole & Huff, supra, at 236 (setting forth copy of BUI Involving Death, Bodily Injury, or Property Damage Advisement, which states that the accused “must” submit to chemical testing and which does not state that the accused’s privilege to operate a water device will be suspended for refusing testing).

[9] For instance, the Notice of Suspension form used by Officer Bacon, and the way in which she completed it, are consistent with a DUI refusal situation.

[10] Importantly, as SLED policy clearly indicates, one portion of the breath test administration process is the provision of the implied consent rights advisement. See SLED Implied Consent Policy 8.12.5(C)(1).

[11] This presumption has been recognized in South Carolina. See 30 S.C. Jur. Evidence § 29 (2006) (“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) (same); 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.”); Steele v. Atkinson, 14 S.C. 154, 161 (1880) (“The rule of law undoubtedly is that, in the absence of any evidence to the contrary, the presumption is that a public officer has done his duty — not that he has violated it.”). Moreover, this presumption has been applied to law enforcement officers. See, e.g., Steele, supra (applying presumption to a sheriff); Fisk v. Dep’t of Motor Vehicles, 179 Cal. Rptr. 379 (Cal. Ct. App. 1981) (applying presumption to a highway patrol officer and stating that presumption “may help lay the foundation for admissibility of evidence”); State v. Hensley, 600 N.E.2d 849 (Ohio Ct. App. 1992) (applying presumption to law enforcement officials); Barnes v. State, 763 So.2d 216 (Miss. Ct. App. 2000) (same). Furthermore, the South Carolina Supreme Court has held that state highway patrol officers and troopers fall within the common law definition of “public officer.” See State v. Bridgers, 329 S.C. 11, 495 S.E.2d 196 (1997).

[12] The DMVH hearing officer’s Final Order and Decision contains no findings with respect to whether or not Myers suffered prejudice.


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