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erroneously rescinded the driver’s license suspension of Respondent Scott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, 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
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).
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 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.
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, 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); 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 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.
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
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