ORDERS:
ORDER
STATEMENT
OF THE CASE
The
South Carolina Department of Motor Vehicles (Department) appeals from a Final
Order and Decision of the South Carolina Division of Motor Vehicle Hearings
(DMVH). The DMVH issued its order 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claims that the DMVH hearing officer erroneously rescinded the suspension of the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 Scott W. Garrett. 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 DMVH order is reversed.
BACKGROUND
On
October 22, 2006, Officer F.D. Mauldin, Jr. of the Goose Creek Police
Department arrested Garrett for driving under the influence (DUI) and transported
him to the Goose Creek Police Department. Officer Conrad Sam Stayton, a
certified DataMaster operator, administered a breath test for Garrett after
reading to him from the Advisement of Implied Consent Rights form and providing
a copy of the form to Garrett. Garrett gave a breath sample that showed a .17
percent blood alcohol concentration. Based on the breath test result, Officer Stayton
issued Garrett 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), Garrett requested
an administrative hearing to challenge the suspension. On November 21, 2006,
the DMVH held an administrative hearing. Officers Mauldin and Stayton appeared
at the hearing on behalf of the Department but were not assisted by counsel.
On November 29, 2006, the DMVH hearing
officer served the parties with her order rescinding Garrett’s suspension based
on her conclusion that the Department failed to meet its burden of proof:
I find that Officer Stayton
stated that he read the Implied Consent Advisement to Respondent and offered
the document into evidence, however there was no evidence of what rights were
given to Respondent. The Officer entered the ‘Advisement of Implied Consent
Rights’ into evidence. This particular form (see Exhibit one) contains the advisement of rights for both driving under the influence and
felony driving under the influence. The rights are significantly different.
The signature of the officer and the Respondent are at the bottom of the page
under both advisements. There is no evidence on the sheet as to what the
officer read. I cannot conclude that because he was arrested for driving under
the influence that he was clearly advised of the proper rights without
additional evidence by testimony or markings on the sheet. There was no
additional evidence making this clarification. Therefore, I conclude as a
matter of Law [sic] that the Petitioner has not met its burden of proof.
Accordingly, the relief of [sic] requested by the Respondent must be granted.
(emphasis in
original). 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. See, e.g., S.C. Dep’t of Motor Vehicles v. Kirschmann, 06-ALJ-21-0185-AP (June 20,
2006). 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 Stayton provided the following testimony, without
objection, regarding the implied consent advisement that he provided to Garrett:
Upon beginning the
DataMaster test, Mr. Garrett was advised of his implied consent and Miranda
rights. He was advised that the proceedings were being recorded, video and
audio, at which point I completed the Implied Consent Rights form and signed [he]
was [sic] given a copy. I’d like to enter the copy of the Implied Consent
Rights form, which he did sign.
While
the Advisement of Implied Consent Rights form provided to Garrett contains both
the DUI Advisement and the Felony DUI Advisement, Officer Stayton specified that he advised Garrett of his implied consent
rights, as opposed to the implied consent rights for one arrested for Felony DUI.
Officer Stayton did not testify that he provided the Felony DUI Advisement to Garrett.
Further, Officer Mauldin testified that he had advised Garrett that he was
being arrested for DUI. He never testified that he advised Garrett that he was
being arrested for Felony DUI. Moreover, nothing in the record even suggests
that Officer Stayton 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 Stayton had
selected to provide to Garrett. 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).
Additionally,
counsel for Garrett did not present evidence contradicting Officer Stayton’s
testimony on which advisement he provided to Garrett, and nothing in the record is remotely inconsistent with it. In fact,
counsel cross-examined Officer Stayton regarding his characterization of the
breath test result as exceeding the limit allowed by law. Officer’s Stayton
response to counsel’s questions indicated that Officer Stayton had advised
Garrett that he could be charged with Driving with an Unlawful Alcohol
Concentration (DUAC) instead of DUI, as explained in the Advisement of
Implied Consent Rights form. Significantly, that form contains such an
explanation under the DUI advisement but not under the Felony DUI advisement.
Finally, because Officer Stayton is a police officer
and a certified DataMaster operator, his 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”). Therefore,
I conclude that the Department carried its burden of proving that Officer Stayton
properly advised Garrett in writing of the rights enumerated in Section
56-5-2950.
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 arguments. 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 Garrett’s driver’s license is
reinstated.
AND
IT IS SO ORDERED.
______________________________
November 7, 2007 JOHN
D. GEATHERS
Columbia, South Carolina Administrative
Law Judge
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