SC Administrative Law Court Decisions

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 The Department claims that the DMVH hearing officer erroneously rescinded the suspension of the driver’s license of Byron Scott Key. 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 July 7, 2006, Officer Kimberly Herring of the Mount Pleasant Police Department arrested Key for driving under the influence (DUI) and transported him to the Mount Pleasant Police Department. Officer Andrew Harris, a certified DataMaster operator, offered a breath test to Key after reading to him from the Advisement of Implied Consent Rights form and providing a copy of the form to Key. Key refused to submit to a breath test. Based on this refusal, Officer Harris issued to Key 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), Key requested an administrative hearing to challenge the suspension. On November 6, 2006, the DMVH held an administrative hearing. Officers Herring and Harris appeared at the hearing on behalf of the Department but were not assisted by counsel.

On November 13, 2006, the DMVH hearing officer served the parties with her order rescinding Key’s suspension based on her conclusion that the Department failed to meet its burden of proof:

I find that the Petitioner has not met his [sic] burden of proof in this case. There was no evidence presented to show the Respondent was advised of the correct Implied Consent Advisement in writing, as required by South Carolina Code of Law, [sic] 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 Advisement of Implied Consent Rights 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 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).[1]

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

Prejudice

As an initial matter, Key argues that this Court should affirm the Final Order and Decision of the DMVH without addressing the substantive issues on appeal because the Department has failed to show how any of its substantial rights have been prejudiced. See Section 1-23-380(A)(5) (listing grounds on which a reviewing court may reverse or modify an agency decision if substantial rights of the appellant have been prejudiced). I disagree.

The right of the Department, as a State agency, to implement the administrative suspension of the driver's license of a motorist who refuses to submit to chemical testing is a substantial right. The State has a strong interest in maintaining the safety of its roads,[2] and the “primary goal” of administratively suspending a motorist’s license for refusing to submit to chemical testing is to protect those who use such roads.[3]

Notably, in Mackey v. Montrym, 443 U.S. 1 (1979), the United States Supreme Court explained how, with respect to the Massachusetts implied consent law, a State’s interest in public safety is “substantially served” by the summary suspension of driver's licenses of those motorists who refuse to submit to breath testing:

First, the very existence of the summary sanction of the statute serves as a deterrent to drunken driving. Second, it provides strong inducement to take the breath-analysis test and thus effectuates the Commonwealth’s interest in obtaining reliable and relevant evidence for use in subsequent criminal proceedings. Third, in promptly removing such drivers from the road, the summary sanction of the statute contributes to the safety of public highways.

Mackey, 443 U.S. at 18. Similarly, the South Carolina Court of Appeals has also recognized the important function that such suspensions serve. See Nelson, 364 S.C. at 522, 613 S.E.2d at 548-49 (“Were drivers free to refuse alcohol and drug testing without suffering penalty, the current system of detecting, testing, and prosecuting drunk drivers would simply fail.”). Therefore, as the aforementioned cases make clear, the Department’s right to implement the administrative suspension of Key's driver's license is a substantial right.

Further, errors that affect the outcome of a case are prejudicial. See, e.g., State v. Covert, 368 S.C. 188, 628 S.E.2d 482 (Ct. App. 2006) (remanding case after finding that legal error “could have reasonably affected the result of the trial”). In the instant case, the hearing officer based her decision to rescind Key’s suspension solely on her conclusion that the Department failed to prove that Key was given the correct implied consent advisement. Therefore, this conclusion affected the outcome of the case, and, if erroneous, prejudiced the Department.

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 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).

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).

In the instant case, the hearing officer concluded that the Department failed to meet its burden of proof because there was insufficient evidence that the DataMaster Operator advised Key of the rights enumerated in Section 56-5-2950. For the reasons that follow, I conclude that the Department met its burden of proof on this question 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.

Implied Consent Advisement

Section 56-5-2950 is widely called the “implied consent” statute,[4] and the rights set forth in Section 56-5-2950 are commonly referred to as “implied consent” rights.[5] However, according to Implied Consent Policy 8.12.5(D) of the South Carolina Law Enforcement Division (SLED),[6] 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 Harris provided the following testimony, without objection, regarding the implied consent advisement that he provided to Key:

I then read to Mr. Key the Advisement of Implied Consent Rights form, that’s SLED forensics form number ICS001. At that time, I signed the form and gave Mr. Key a copy of his form, which he had in front of him during the duration of the test.

This testimony, combined with Officer Herring’s testimony that she had advised Key that he was being arrested for DUI, serves as sufficient evidence, in the absence of proof to the contrary, that Key was provided the correct implied consent advisement. 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).[7] Nothing in the record even suggests that Officer Harris 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 Harris had selected to provide to Key. Id.

Additionally, because Officer Harris 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 Harris properly advised Key in writing of the rights enumerated in Section 56-5-2950.

Based on the foregoing, I conclude that substantial rights of the Department have been prejudiced because 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 the Department’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 Key’s driver’s license is reinstated.

AND IT IS SO ORDERED.

______________________________

November ____, 2007 JOHN D. GEATHERS

Columbia, South Carolina Administrative Law Judge