ORDERS:
ORDER
STATEMENT
OF THE CASE
This
appeal by the South Carolina Department of Motor Vehicles (Department) is 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rescinded the suspension of the driver’s license of Respondent Josh J. Dauss. 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
September 5, 2006, Officer Michael Swarthout, a police officer for the North Myrtle Beach Department of Public Safety, observed
a white Nissan, South Carolina tag 3455VK, traveling on South Ocean Boulevard
within the City of North Myrtle Beach. The Nissan proceeded past a stop sign
and slid into the intersection on a very hard stop. It then made a left turn
and proceeded into the path of another vehicle traveling in the opposite
direction, requiring the other vehicle’s driver to apply brakes. After observing
the Nissan drifting back and forth in its lane of travel, Officer Swarthout stopped
the Nissan and noticed an odor of alcohol coming from its driver, Dauss. Officer
Swarthout asked Dauss to perform three field sobriety tests, and Dauss failed
all three tests. Officer Swarthout arrested Dauss for driving under the
influence (DUI) and transported him to the North Myrtle Beach Department of
Public Safety.
Officer
Amy Zymislicky, a certified DataMaster operator, administered a breath test for
Dauss after reading to him the DUI advisement from the Advisement of Implied
Consent Rights form and providing a copy of the form to Dauss. The process was
videotaped. Dauss gave a breath sample that showed a .21 percent blood alcohol
concentration. Based on the breath test result, Officer Zymislicky issued Dauss
a Notice of Suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (2006). Pursuant
to S.C. Code Ann. § 56-5-2951(B)(2) (2006), Dauss requested an administrative
hearing to challenge the suspension. On November 13, 2006, the DMVH held an
administrative hearing. Officers Swarthout and Zymislicky appeared at the
hearing on behalf of the Department but were not assisted by counsel.
On November 17, 2006, the DMVH hearing
officer served the parties with his order rescinding Dauss’s suspension based
on his conclusion that the Department failed to meets its burden of proof:
There was testimony
entered into the record by the DataMaster Operator that the Respondent was read
and given a copy of a DUI advisement. S.C. Code Ann. § 56-5-2950 (2006) states
that the Respondent must be given a copy of the appropriate Implied
Consent Advisement in writing. No evidence was presented as to the “Driving
Under the Influence Advisement” of the Implied Consent Advisement being given
to the Respondent in writing. There are several versions of advisements based
on the nature of the arrest. It is unclear of what rights the Respondent was
advised. The DataMaster Operator testified that the machine was operating
properly. No exhibit (i.e. the Breath Alcohol Analysis Test Report) was
introduced into the record to corroborate the DataMaster Operator’s testimony
as to the machine working properly. There was no evidence that the DataMaster
Operator was able to conclude from his [sic] own expertise that a DataMaster
machine is or not working correctly. Without the admission of the test report,
I cannot conclude that the statutory requirements were met. I conclude as a
matter of law that the Petitioners have failed to meet their burden of proof.
Accordingly, the relief requested by the Respondent must be granted.
The Department appeals.
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 DMVH decisions. 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).
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
Implied
Consent
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 &
-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). 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 has an
alcohol concentration of fifteen one-hundredths of one percent or more 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) consented to taking a test pursuant to Section 56-5-2950, and
the: (a) reported alcohol
concentration at the time of testing was fifteen one-hundredths of one percent
or more; (b) individual who administered
the test or took samples was qualified pursuant to Section 56-5-2950; (c) tests administered and samples
obtained were conducted pursuant to Section 56-5-2950;
and (d) machine was working
properly. S.C. Code Ann. § 56-5-2951(F) (2006).
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) (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). However, 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. Cf. State v. Parker, 271 S.C. 159, 164,
245 S.E.2d 904, 906 (1978) (discussing common law requirements for laying
foundation to introduce results of breath test in criminal prosecution); Ponce
v. Commonwealth, Dep’t of Transp., Bureau of Driver Licensing, 685 A.2d
607, 610-11 (Pa. Commw. Ct. 1996) (interpretation of Pennsylvania’s implied
consent statute in a license suspension proceeding); Johnson v. Director of
Revenue, 168 S.W.3d 139, 142 (Mo. Ct. App. 2005) (applying Missouri’s implied consent statute). 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).
Implied
Consent Advisement
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 Implied Consent Policy 8.12.5(D) of the South Carolina
Law Enforcement Division (SLED), 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, the DUI Advisement 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).
In
the instant case, Officer Zymislicky provided the following testimony, without
objection, regarding the implied consent advisement that she provided to Dauss:
I then read the DUI
advisement, which I have a copy of here. The implied consent form and a copy
was given to Mr. Dauss in writing immediately following.
While
one Advisement of Implied Consent Rights form contains both the DUI advisement
and the Felony DUI advisement and at least one other Implied Consent Rights
form contains other advisements drafted by SLED, Officer Zymislicky specified that it was the DUI advisement that she read to
Dauss. She did not testify that she read the Felony DUI advisement or any
other specific advisement to Dauss. Significantly, the hearing officer
included in his order a finding of fact stating “The Respondent was read a DUI
advisement, and a copy of this advisement was given to the Respondent.” Officer
Swarthout testified that he arrested Dauss for DUI. He never testified that he
arrested Dauss for Felony DUI or for any other violation. Nothing in the record
even suggests that Officer Zymislicky 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 Zymislicky had selected to provide to Dauss. 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) (absent 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).
Counsel
for Dauss neither cross-examined Officer Zymislicky nor otherwise impeached her as a witness. Neither did he present
evidence contradicting her testimony, and nothing
in the record is remotely inconsistent with it. Additionally, because Officer Zymislicky is a police officer and a certified DataMaster
operator, her testimony is worthy of reliance. See, e.g., Mackey v. Montrym, 443 U.S. 1, 14 (1979) (in a case involving the implied consent law of Massachusetts, the risk of
erroneous observation or deliberate misrepresentation of the facts by a law
enforcement officer in the ordinary case seemed “insubstantial”). While
the Advisement of Implied Consent Rights form was not introduced into evidence
at the hearing, Officer Zymislicky testified that she had a copy of the form
with her. Officer Swarthout testified that he had the form, as well as the
DataMaster room videotape, with him at the hearing. Therefore, the hearing
officer knew that the form and the videotape were available for review if he
had any concern about the adequacy of Officer Zymislicky’s testimony. Based on
the foregoing, I conclude that the Department carried its burden of proving
that Officer Zymislicky properly advised Dauss in writing of the rights
enumerated in Section 56-5-2950.
Corroboration
of Testimony
The Department argues that the hearing officer erred
when he disregarded Officer Zymislicky’s sworn testimony on whether the DataMaster machine was properly working simply
because the testimony was not corroborated by other evidence. I agree.
Zymislicky testified without objection that the DataMaster
machine conducted internal tests indicating that the machine was working
properly. She also testified that the breath alcohol analysis test report
ticket showed verification of the machine’s internal testing and its indication
that it was working properly. Further, Officer Zymislicky’s testimony was not contradicted, and nothing in the
record is remotely inconsistent with it. Moreover, Officer Zymislicky was neither cross-examined regarding this testimony
nor otherwise impeached as a witness. Because Officer Zymislicky is a police officer and a certified DataMaster
operator, her testimony is worthy of reliance. For these reasons, the hearing
officer erred by disregarding Officer Zymislicky’s testimony. See, e.g., Cheatham v. Gregory, 227 Va. 1, 313 S.E.2d 368, 370 (1984) (“A trier of fact
must determine the weight of the testimony and the credibility of witnesses,
but may not arbitrarily disregard uncontradicted evidence of unimpeached
witnesses which is not inherently incredible and not inconsistent with facts in
the record . . . .”); Elwood Constr. Co. v. Richards, 265 S.C. 228, 234, 217 S.E.2d
769, 771 (1975) (“[W]hile it is true that the court does not always
have to accept uncontradicted evidence as establishing the truth, the same
should be accepted unless there is reason for disbelief.”). In any event, Officer
Swarthout testified that he had the breath
alcohol analysis test report ticket with him at the hearing. Therefore,
the hearing officer knew that it was available for review if he had any concern
about the adequacy of Officer Zymislicky’s testimony.
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 the
resolution of this issue is dispositive, this Court need not address
Appellant’s remaining argument. See Commander Health Care
Facilities, Inc. v. S.C. Dep’t of Health & Envtl. Control, 370 S.C. 296, 634 S.E.2d 664 (Ct. App. 2006) (citing Whiteside v. Cherokee County Sch. 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 and the Department’s suspension of Dauss’s driver’s license is reinstated.
AND
IT IS SO ORDERED.
______________________________
November 1, 2007 JOHN
D. GEATHERS
Columbia, South Carolina Administrative
Law Judge
|