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. Shannon Valentine

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Appellant:
South Carolina Department of Motor Vehicles

Respondents:
Shannon Valentine
 
DOCKET NUMBER:
06-ALJ-21-0725-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 issued its Final Order and Decision following an administrative hearing conducted pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (2006). The Department claims that the DMVH hearing officer erroneously rescinded the suspension of the driver’s license of Respondent Shannon Valentine (“Valentine”). The Administrative Law Court (“ALC” or “Court”) has jurisdiction to hear this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2006). For the following reasons, the Final Order and Decision of the DMVH is reversed.

BACKGROUND

On June 28, 2006, Officer John D. Burgess (“Officer Burgess”), a senior patrol officer for the City of Spartanburg, observed a blue, four-door Toyota Camry proceed through the red light at the intersection of Daniel Morgan Avenue and Henry Street in Spartanburg. He then observed the vehicle proceeding on Daniel Morgan Avenue at a high rate of speed. Officer Burgess stopped the vehicle due to its failure to stop for the red light and its high rate of speed. At that time, Valentine, who had been driving the vehicle, admitted to Officer Burgess that she had been drinking. Officer Burgess observed that Valentine was “very intoxicated.” He then asked Valentine to perform three field sobriety tests, and Valentine failed all three tests. Officer Burgess arrested Valentine for driving under the influence (“DUI”), and he transported her to the Spartanburg County Jail. Valentine refused to submit to a breath test. Based on this refusal, Officer Burgess issued to Valentine 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), Valentine filed a request for an administrative hearing to challenge the suspension. On August 14, 2006, the Division of Motor Vehicle Hearings conducted an administrative hearing. Officer Burgess appeared at the hearing on behalf of the Department, but he was not assisted by counsel.

At the hearing, Officer Burgess provided the following testimony regarding the implied consent advisement that he provided to Valentine:

I proceeded to the County jail as she was given . . . I read the implied consent form word for word for her. She signed it at the bottom . . . .

Officer Burgess introduced a copy of the Advisement of Implied Consent Rights form, which was admitted into evidence as Exhibit # 3. The form contained an advisement for DUI and a separate advisement for Felony DUI. When questioned on cross-examination, Officer Burgess testified that he read everything on the Advisement of Implied Consent Rights form that pertains to DUI. Under the DUI Advisement, the word “breath” had been circled within the statement “Inform subject of the type (breath, blood, urine) samples requested[,]” and the word “alcohol” had been circled within the statement “The arresting officer has directed that samples be taken for alcohol and/or drug testing.”

On August 21, 2006, the DMVH hearing officer served the parties with a Final Order and Decision, in which he rescinded Valentine’s suspension based on his conclusion that the Department failed to meets its burden of proof:

The Implied Consent Warning (State’s Exhibit # 3) has two (2) Implied Consent Warnings on the form. There was no evidence corroborating Officer Burgess’ testimony concerning which Implied Consent Warning was given to the Respondent. Petitioner’s Witness never testified that Respondent’s mouth was checked before the test was offered. There was no testimony as to Respondent’s demeanor other than she was very intoxicated. There was no testimony or evidence entered as to the smell of alcohol, slurred speech, bloodshot eyes, red eyes, being unsteady on her feet or any other reason that would have made the Officer believe that Respondent was very intoxicated. No testimony as to whether or not Respondent failed or passed the field sobriety tests that had been offered to her on the night of her arrest. I conclude as a matter of law that the Petitioner has failed to meet its burden of proof. Accordingly the relief requested by the Respondent must be granted.

The Department now appeals.

ISSUE ON APPEAL

Did the hearing officer err in concluding that the Department failed to carry its burden of proof? [1]

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). 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).[2] 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

The license to operate a motor vehicle upon the public highways of this State is not a right, but a mere privilege that is subject to reasonable regulations in the interests of public safety and welfare. State v. Newton, 274 S.C. 287, 294, 262 S.E.2d 906, 910 (1980); State v. Kerr, 330 S.C. 132, 149, 498 S.E.2d 212, 220-21 (Ct. App. 1998). This privilege is always subject to revocation or suspension for any cause relating to public safety. S.C. State Hwy. Dep’t v. Harbin, 226 S.C. 585, 595, 86 S.E.2d 466, 470 (1955). However, it cannot be revoked arbitrarily or capriciously. Id.

Consistent with these principles, the Legislature enacted S.C. Code Ann. § 56-5-2950 (2006) and S.C. Code Ann. § 56-5-2951 (2006). Section 56-5-2950 declares that a person who drives a motor vehicle in this State implicitly consents to a chemical test of his breath, blood or urine for the purpose of determining the presence of alcohol or drugs. The statute requires that, at the direction of the arresting officer, a breath test be administered to a motorist arrested for DUI. S.C. Code Ann. § 56-5-2950(a) (2006).[3] However, Section 56-5-2950 also provides that, before any type of chemical test is administered, the motorist must be informed in writing:

(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.

S.C. Code Ann. § 56-5-2950(a) (2006).

Section 56-5-2951, in turn, mandates that the driver’s license of a motorist who refuses to submit to a test required by Section 56-5-2950 be immediately suspended. See S.C. Code Ann. § 56-5-2951(A) (2006). However, Section 56-5-2951 also grants motorists the right to request an administrative hearing to challenge such suspensions. S.C. Code Ann. § 56-5-2951(B)(2) (2006). If such a hearing is requested, the scope of the hearing must be limited to whether the motorist: (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). Therefore, the Department’s burden of proof in a hearing conducted pursuant to S.C. Code Ann. § 56-5-2951 (2006) is limited to these three questions when the suspension is based on the motorist’s refusal to submit to chemical testing.[4] For the reasons that follow, I conclude that the Department met its burden of proof on these three questions and that the hearing officer’s conclusion to the contrary was clearly erroneous in view of the reliable, probative and substantial evidence on the whole record.

Lawfulness of Arrest

The fundamental question in determining the lawfulness of an arrest is whether probable cause existed to make the arrest. State v. Baccus, 367 S.C. 41, 49, 625 S.E.2d 216, 220 (2006). Probable cause for a warrantless arrest exists when the circumstances within the arresting officer’s knowledge are sufficient to lead a reasonable person to believe that a crime has been committed by the person being arrested. Id. Whether probable cause exists depends upon the totality of the circumstances surrounding the information at the officer’s disposal. Id. Probable cause may be found somewhere between suspicion and sufficient evidence to convict. Thompson v. Smith, 289 S.C. 334, 337, 345 S.E.2d 500, 502 (Ct. App. 1986), overruled in part on other grounds, Jones v. City of Columbia, 301 S.C. 62, 389 S.E.2d 662 (1990). In determining the presence of probable cause for arrest, the probability cannot be technical, but must be factual and practical considerations of everyday life on which reasonable, prudent and cautious men, not legal technicians, act. Id. (emphasis in original).

In the instant case, the testimony indicates that Officer Burgess stopped the vehicle that Valentine was driving because he had observed it run a red light and proceed at a high rate of speed. After Officer Burgess stopped the vehicle, Valentine admitted to him that she had been drinking. His observation that she was very intoxicated was confirmed by the fact that she failed three field sobriety tests. Therefore, the failure of Officer Burgess to testify as to particular characteristics of Valentine’s intoxicated demeanor did not prevent a finding of probable cause to arrest Valentine. Notably, in his Final Order and Decision, the hearing officer specifically found that Valentine was very intoxicated when Officer Burgess stopped her vehicle. Even without such a finding, the Record shows an overwhelming totality of circumstances supporting the lawfulness of the arrest.

Implied Consent Advisement

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 Implied Consent Policy 8.12.5(D) of the South Carolina Law Enforcement Division (“SLED”),[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.[8]

In the instant case, Exhibit # 3 contains both the DUI advisement and the Felony DUI advisement. However, there is nothing in the record that suggests that Officer Burgess either read the wrong advisement or misunderstood any of the facts relevant to determining which advisement to read. Therefore, the hearing officer had no reason to question which advisement Officer Burgess had selected from the Advisement of Implied Consent Rights form. See, e.g., S.C. Nat’l Bank v. Florence Sporting Goods, Inc., 241 S.C. 110, 115-16, 127 S.E.2d 199, 202 (1962) (holding that, in absence of proof to contrary, public officers are presumed to have properly discharged duties of their offices and to have faithfully performed duties with which they are charged).

In any event, the evidence in the record, when taken together, shows that Officer Burgess properly provided the DUI Advisement to Valentine. Officer Burgess testified that he arrested Valentine for DUI. He never testified that he arrested Valentine for Felony DUI. During cross-examination, Valentine’s attorney asked Officer Burgess if he had read everything on the Advisement of Implied Consent Rights form. Significantly, Officer Burgess qualified his affirmative response with the words “[t]hat pertains to driving under the influence.” Further, selected words were circled under the DUI Advisement but not under the Felony DUI Advisement; and Valentine’s signature appears at the bottom of the form, indicating that she received a copy of it. Moreover, the fact that Valentine refused testing, and was allowed to do so by Officer Burgess, is inconsistent with any notion that Officer Burgess read the Felony DUI Advisement. The Felony DUI Advisement does not inform motorists that they have the right to refuse chemical testing, but rather states that motorists “must” submit to testing. Therefore, the Department carried its burden of proving that Valentine was properly advised of the rights enumerated in Section 56-5-2950.

Refusal

There is no question that Valentine refused to submit to a breath test. There is not only testimony in the record indicating Valentine’s refusal but also a specific finding of fact in the hearing officer’s Final Order and Decision confirming the refusal. Given this refusal, the omission of testimony on checking Valentine’s mouth before offering the breath test has no bearing on whether the Department carried its burden of proof. See 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) (holding that, when a driver’s license suspension is based on the motorist’s refusal to submit to chemical testing, the scope of the hearing must be limited to whether the motorist: (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 chemical testing); Ex parte Horne, 303 S.C. 30, 397 S.E.2d 788 (Ct. App. 1990) (citing Halloway v. Martin, 143 Ariz. 311, 693 P.2d 966 (Ariz.App. Div. 1 1984)) (Question of validity of test methods employed by breath test operator does not arise until test is given and its results are offered as evidence.).

Based on the foregoing, the hearing officer’s conclusion that the Department failed to carry its burden of proof was clearly erroneous in view of the reliable, probative and substantial evidence on the whole record. Because this conclusion requires reversal, this Court need not address Appellant’s remaining arguments. See Commander Health Care Facilities, Inc. v. South Carolina Department of Health and Environmental Control, 370 S.C. 296, 634 S.E.2d 664 (Ct. App. 2006) (citing Whiteside v. Cherokee County School Dist. No. One, 311 S.C. 335, 428 S.E.2d 886 (1993)) (declining to address remaining argument after resolving dispositive issue).

ORDER

IT IS THEREFORE ORDERED that that the Final Order and Decision of the DMVH is REVERSED.

IT IS FURTHER ORDERED that the Department’s suspension of Valentine’s driver’s license be reinstated.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

October 15, 2007

Columbia, South Carolina



[1] Although this issue was sufficiently argued in Appellant’s brief, it was not listed in Appellant’s “Statement of the Issues on Appeal.” ALC Rule 37(B)(1) states that, ordinarily, no point will be considered that is not set forth in the statement of issues on appeal. (emphasis added). However, this is not an ordinary case because the evidence pertaining to the questions on which the Department had the burden of proof was overwhelming.

[2] 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).

[3] Blood and urine tests may be administered to motorists arrested for DUI only if certain other conditions are met. See S.C. Code Ann. § 56-5-2950(a) (2006).

[4] In an administrative hearing conducted pursuant to Section 56-5-2951, the Department bears the burden of proof. S.C. Dep’t of Motor Vehicles v. Kirschmann, 06-ALJ-21-0185-AP (June 20, 2006); see also Summersell v. S.C. Dep’t of Pub. Safety, 334 S.C. 357, 368, 513 S.E.2d 619, 625 (Ct. App. 1999), (stating that, with respect to S.C. Code Ann. § 56-5-2950(e) (1991), a precursor to the current Section 56-5-2951(F), once the Department has made a showing as to the three elements, jurisdiction has been established), vacated in part on other grounds, 337 S.C. 19, 522 S.E.2d 144 (1999).

[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); State v. Bacote, 331 S.C. 328, 329, 503 S.E.2d 161, 162 (1998); 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”).

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

[8] See Record on Appeal, Exhibit # 3.


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