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 was issued in connection with an administrative hearing that it held pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (2006). The Administrative Law Court (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 Final Order and Decision is reversed as set forth below.

BACKGROUND

“In South Carolina, operating a motor vehicle is a privilege of the State, not a right of the individual.” Taylor v. S.C. Dep’t of Motor Vehicles, 368 S.C. 33, 36, 627 S.E.2d 751, 753 (Ct. App. 2006). 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.

Importantly, Section 56-5-2950(a) continues on to state:

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 license of a motorist who refuses to submit to the testing required under Section 56-5-2950(a) must be immediately suspended. However, under Section 56-5-2951(B)(2), 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); see also S.C. Dep’t of Motor Vehicles v. Nelson, 364 S.C. 514, 526, 613 S.E.2d 544, 550 (Ct. App. 2005).

FACTS

On July 27, 2006, Officer Jesses James was on patrol when he observed a vehicle traveling 50 miles per hours in a 35 mile per hour zone. Officer James initiated a traffic stop and observed that Respondent had an odor of alcohol about him, blood shot eyes and slurred speech. Respondent was arrested for driving under the influence and transported to the detention center for a breath test.

At the detention center, Officer Andrew Harris, a certified DataMaster operator, advised Respondent of his implied consent rights in writing. Respondent refused to submit to chemical testing. Based on this refusal, Respondent was issued a Notice of Suspension pursuant to Section 56-5-2951(A).

Thereafter, pursuant to Section 56-5-2951(B)(2), Respondent filed a request for an administrative hearing to challenge the suspension. At the hearing, Officer Harris testified that he “read the advisement and comply consent rights form to Mr. Bates . . . I provided Mr. Bates with his copy.” However, he did not specify which implied consent advisement was given to Respondent. Respondent neither testified at the hearing nor presented any other evidence.

On November 13, 2006, the DMVH hearing officer issued a Final Order and Decision, in which she rescinded Respondent’s suspension. In doing so, she explained:

There was no evidence provided to show the respondent was advised of the correct Implied Consent Advisement in writing, as required by South Carolina Cod of Law Section 56-5-2950 and Sled policies and procedures. There was no evidence of what rights were given to Respondent. There are several versions of the Implied Consent Advisement 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. Accordingly, the relief of (sic) requested by the Respondent must be granted.

The Department now appeals.

ISSUES ON APPEAL[1]

1.      Did the hearing officer err when she ruled that the DataMaster operator’s testimony had not been sufficient to establish that he had given the Respondent the correct implied consent advisement?

2.      Did the hearing officer err when she determined that the DataMaster operator had not given the Respondent his implied consent rights in writing and that the suspension should be rescinded?

STANDARD OF REVIEW

The DMVH is authorized by law to determine contested case hearings of the Department of Motor Vehicles. See S.C. Code Ann. § 1-23-660 (Supp. 2005). Therefore, appeals from the decisions of the DMVH are decided under the Administrative Procedures Act’s (APA) standard of review. In fact, Section 1-23-660 now provides that all appeals from decisions of the DMVH hearing officers must be taken to the ALC pursuant to the ALC’s appellate rules of procedure. Thus, the Administrative Law Judge sits in an appellate capacity under the Administrative Procedures Act (APA) rather than as an independent finder of fact. In South Carolina, the provisions of the APA — specifically Section 1-23-380(A)(5) — govern the circumstances in which an appellate body may review an agency decision. That section states:

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) (as amended by 2006 S.C. Act No. 387).

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). The well-settled case law in this state has also interpreted the “substantial evidence” rule to mean that 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).

In applying the substantial evidence rule, the factual findings of the administrative agency are presumed to be correct. Rodney v. Michelin Tire Co., 320 S.C. 515, 519, 466 S.E.2d 357, 359 (1996) (citing Kearse v. State Health and Human Servs. Fin. Comm’n, 318 S.C. 198, 200, 456 S.E.2d 892, 893 (1995)). Furthermore, the reviewing court is prohibited from substituting its judgment for that of the agency as to the weight of the evidence on questions of fact. Grant v. S.C. Coastal Council, 319 S.C. 348, 353, 461 S.E.2d 388, 391 (1995) (citing Gibson v. Florence Country Club, 282 S.C. 384, 386, 318 S.E.2d 365, 367 (1984)). Finally, the party challenging an agency action has the burden of proving convincingly that the agency’s decision is unsupported by substantial evidence. Waters, 321 S.C. at 226, 467 S.E.2d at 917.

DISCUSSION

The Department argues that the DMVH hearing officer erred in rescinding Respondent’s suspension based on Officer Harris’s failure to specify which implied consent rights advisement was given to Respondent. Specifically, the Department argues that there is only one form distributed to law enforcement agencies to advise motorists of their implied consent rights and that “all parties know” what this form is and what it contains.

Assignment of Burden of Proof

In South Carolina the burden of proof is upon the Department. See S.C. Dep’t of Motor Vehicles v. Lavigne, Docket Number: 06-ALJ-21-0056-AP; 2007 WL 268783 (S.C. Admin. Law Ct. 2007). “The term burden of proof has been used to describe two related but distinct concepts: the burden of production and the burden of persuasion.” 29 Am. Jur. Evidence § 155 (1994). The burden of persuasion absent a permissible presumption does not shift during the trial of a case. However, the burden of production or “the burden of going forward with evidence may shift at various times from one party to the other as the respective parties produce evidence.” Sanders et al., Trial Handbook for South Carolina Lawyers § 9:1, at 355 (2000). The burden that shifts would thus be the requirement that the motorist come forward with evidence to contradict the State’s evidence. Furthermore, the policy considerations that govern the initial assignment of the burden of persuasion also govern the determination of whether to shift the burden of producing evidence. 2 Kenneth S. Broun et al., McCormick on Evidence § 337 (John W. Strong ed., 5^th ed. 1999). In that light, where the facts lie peculiarly in the knowledge of a party, that party usually has the burden of producing evidence. Id. Likewise, “[t]he risk of failure of proof may be placed upon the party who contends the more unusual event has occurred.” Id at 413.

The State’s burden in this case is established, in part, by showing that the State followed the requisites of Section 56-5-2950(a) in administering the breath test. In other words, the Department must establish a prima facie case that the breath test was administered as required by Section 56-5-2950(a). In South Carolina, “[o]nce a party establishes a prima facie case, the burden of proof shifts to the opposing party.” Daisy Outdoor Advertising Co., Inc. v. South Carolina Dept. of Transp., 352 S.C. 113, 118, 572 S.E.2d 462, 465 (Ct. App. 2002).^[2]

Here, Respondent possessed the knowledge of the reasons for his refusal to submit to a breath test. Furthermore, his refusal would appear to be the more unusual event since it results in a mandatory suspension and, inversely, it forecloses the potential for exonerating results. Therefore, the State bore the burden of presenting evidence that it complied with the requirements of Section 56-5-2950(a). Once the State presents a prima facie case that the officers followed the requisites of Section 56-5-2950(a), the burden of proving that the Officer failed to comply with Section 56-5-2950(a) shifts to the motorist.

Moreover, many other state courts have also held that the state agency bears either the burden of proof or the initial burden to establish that a motorist’s license suspension is justified.^[3] Of those states, many have also held that the burden shifts to the motorist once the state agency establishes its prima facie case.^[4] Several states have also directly addressed this issue in the context of a motorist who refused to submit to the breath test. For instance, in Clement, the Court held that “once the Department proves the motorist’s refusal to take a breath test, the burden shifts to the motorist to prove by a preponderance of the evidence an excuse for his or her noncompliance. 35 P.3d at 1174. See also Bureau of Traffic Safety v. Kelly, 335 A.2d 882, 884 (“We hold that after the Commonwealth has proven a refusal to submit to a breathalyzer test, the burden shifts to the defendant to prove by competent evidence that he was physically unable to submit to the test.”); Hollis v. State ex rel. Dept. of Public Safety, 131 P.3d 145, 147 (“The burden of proving incapacity to refuse to submit to the test rests with the licensee if, and after, DPS has established its prima facie case.”).

Review of Hearing Officer’s Determination

The hearing officer found that there was no evidence to show that Respondent was advised in writing of his implied consent rights. She furthermore found that there was no evidence as to what rights were given to Respondent and because “there are several versions of the Implied Consent Advisement…there is no way to determine if the respondent was properly advised of the proper rights.” She concluded as “a matter of law” that the Petitioners failed to meet their burden of proof. As noted above, the possibility of drawing two inconsistent conclusions from the evidence does not prevent the agency’s findings from being supported by substantial evidence. However, there is no conflicting evidence in this case from which to reach two possible conclusions.

In Herndon v. Morgan Mills, Inc., 246 S.C. 201, 143 S.E.2d 376 (1965), the Supreme Court examined whether the plaintiff’s death could have been caused or accelerated by the accident at issue. In reviewing the record, the Court dismissed conclusions reached as a result of speculation and surmise when the record contained no conflicting evidence to support that conclusion. 143 S.E.2d at 383 (“The lack of substantial conflict in the evidence renders the question of causal connection or acceleration of death, which is ordinarily one of fact for the Commission, a question of law for decision by the Court.”). In Adams v. Rice Services, 313 S.C. 488, 443 S.E.2d 391 (1994), the Court likewise found that where there was no conflicting evidence that an employer was entitled to stop payment of a worker’s compensation claimant’s benefits, the Full Commission erred in permitting the employer to stop payments. More recently, the Supreme Court found that where there is "no evidence contradicting or conflicting [a PCR] petitioner’s testimony, [the] PCR court erred by finding petitioner’s testimony on the issue was not credible.” Jackson v. State, 342 S.C. 95, 97, 535 S.E.2d 926, 927 (2000).

Here, though different advisement forms may exist^[5], there is no evidence in the record supporting the conclusion that the wrong form was read to Respondent. Officer Harris testified that he “read the advisement and comply consent rights form to Mr. Bates . . . I provided Mr. Bates with his copy.” (emphasis added). That evidence established a prima facie case that the the DataMaster operator read the motorist the appropriate advisement. The burden thus shifted to the Respondent to present evidence that the Officer failed to follow the requisites of Section 56-5-2950(a).

Nevertheless, Respondent did not cross-examine Officer Harris or present any other evidence to rebut that the appropriate advisement was not read the motorist.^[6] Therefore, there is no evidence other than “speculation and surmise” that the wrong advisement form was read to the motorist. That evidence does not meet the substantial evidence standard to support the hearing officer’s conclusion. In other words, the only reasonable conclusion that could be reached based upon the evidence in the record is that Officer Harris read Respondent the Section 56-5-2950(a) rights that were applicable to Respondent. See also 2 Kenneth S. Broun et al., McCormick on Evidence § 338 (John W. Strong ed., 5^th ed. 1999).

Additionally, the Respondent’s failure to respond to Officer Harris’ evidence is even more significant in light of the evidence in dispute. 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.^[7] S.C. Nat’l Bank v. Florence Sporting Goods, Inc., 241 S.C. 110, 115-16, 127 S.E.2d 199, 202 (1962); 30 S.C. Jur. Evidence § 29 (2006); see also 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.”) Moreover, the South Carolina Supreme Court has held that state highway patrol officers and troopers, as well as city police officers, fall within the common law definition of “public officer.” See State v. Bridgers, 329 S.C. 11, 495 S.E.2d 196 (1997) (state highway patrol officers and troopers); State v. Crenshaw, 274 S.C. 475, 266 S.E.2d 61 (1980) (city police officers).^[8] As with a prima facie case, the burden of producing evidence to rebut this presumption rests on the person who asserts unlawful or irregular conduct. 31A C.J.S. Evidence § 160 (1996). Furthermore, unless the presumption is rebutted, it becomes conclusive. Id.

Consequently, it was error for the DMVH hearing officer to rescind Respondent’s suspension based on his conclusion that Officer Harris failed to testify as to which implied consent rights advisement was given to Respondent. See Arkwright Mills v. Clearwater Mfg. Co., 217 S.C. 530, 61 S.E.2d 165 (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.”); see also Moffitt v. Commonwealth, 434 S.E.2d at 687 (1993) (“Once the Commonwealth has established a prima facie case [that a motorist is an habitual offender under motor vehicle licensure statute], 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.”)

ORDER

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

AND IT IS SO ORDERED.

______________________________

Ralph K. Anderson

Administrative Law Judge

April 16, 2007

Columbia, South Carolina