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’s Final Order
and Decision was issued following an administrative hearing held pursuant to
S.C. Code Ann. § 56-5-2951(B)(2) (2006). The Department claims that the DMVH
erroneously rescinded the driver’s license suspension of Respondent Daron
Curtis Billie (“Billie”). The Administrative Law Court (“ALC” or “Court”) has
jurisdiction to hear this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp.
2006). Upon consideration of the Department’s brief, the DMVH’s Final Order and Decision is reversed as set forth below.
BACKGROUND
On March 19, 2006, while conducting a safety checkpoint
on Highway 15 and Sylva Road, Sergeant Lee McCoy (“Officer McCoy”) of the
Clarendon County Sheriff’s Department observed Billie’s vehicle cut through a
gas station and proceed back down Highway 15 in what Officer McCoy viewed as an
attempt to avoid the checkpoint. Soon thereafter, Officer McCoy initiated a
traffic stop. When he approached Billie’s vehicle, Officer McCoy noticed a
strong odor of alcohol emanating from the vehicle. In reply to Officer McCoy’s
inquiries, Billie indicated that he had been drinking. Officer McCoy read
Billie his Miranda rights and asked him to step from his vehicle. Subsequently,
Officer McCoy asked Billie to perform several field sobriety tests. Billie
performed poorly on the tests. As a result, Officer McCoy arrested Billie for
driving under the influence (“DUI”) and transported him to the Clarendon County Detention Center for a breath test. Officer Shane McKenzie (“Officer
McKenzie”) conducted the DataMaster test. Billie refused to submit to the
breath test. Based on this refusal, Billie was issued 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), Billie filed a request for
an administrative hearing to challenge the suspension. An administrative
hearing was held on April 17, 2006. Officer McCoy appeared at the hearing on
behalf of the Department, but was not assisted by counsel. Billie was
represented by his attorney at the hearing.
At
the hearing, Officer McCoy testified that he is a certified breathalyzer
operator. (Transcript of Hearing, p. 12 at 20-22). He also testified that he
observed Officer McKenzie conduct the DataMaster process and Billie’s
subsequent refusal to take the DataMaster test. (Transcript of Hearing, p. 5 at
4-6 and 16-25). When asked whether Billie was given his implied consent rights,
Officer McCoy responded “I know it happened…but I wasn’t the one [who] advised
him of it.” (Transcript of Hearing, p. 12 at 12-16). Billie’s attorney did not
present any evidence at the hearing.
On May
16, 2006, the DMVH hearing officer issued a Final Order and Decision in which he
rescinded Billie’s suspension. He explained his decision by stating:
Deputy William
McCoy lawfully placed Respondent under arrest for driving under the influence.
He observed Respondent operating a motor vehicle and detected and odor of an
alcoholic beverage on Respondent’s person. However, there was no testimony that
Respondent was advised of the Implied Consent Advisement in writing prior to
being offered an opportunity to submit to a breath test.
See (R.
at 11).
The
Department now appeals.
ISSUE
ON APPEAL
1. Was
it error for the DMVH hearing officer to rescind Billie’s suspension on the
grounds that Officer McCoy failed to offer testimony to show that Billie was
advised of his implied consent rights?
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); see also Byerly Hosp. v. S.C. State Health & Human Servs. Fin. Comm’n, 319 S.C. 225, 229, 460 S.E.2d 383, 385 (1995).
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).
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).
Thus,
pursuant to the APA, this Court’s review is limited to deciding whether the
DMVH’s Final Order and Decision is unsupported by substantial evidence or is affected
by an error of law. Bass v. Kenco Group, 366 S.C. 450, 457, 622 S.E.2d
577, 581 (Ct. App. 2005). Substantial evidence is not a mere scintilla of
evidence, nor the evidence viewed blindly from one side of the case, but is
evidence which, considering the record as a whole, would allow reasonable minds
to reach the conclusion the agency reached in order to justify its action. Hargrove
v. Titan Textile Co., 360 S.C. 276, 289, 599 S.E.2d 604, 611 (Ct. App.
2004). The possibility of drawing two inconsistent conclusions from the
evidence does not prevent the agency’s findings from being supported by
substantial evidence. Id. at 290, 599 S.E.2d at 611. The party
challenging an agency’s decision has the burden of proving convincingly that
the agency’s decision is unsupported by substantial evidence. Waters v. S.C. Land Resources Conservation Comm’n, 321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996).
DISCUSSION
The
license to operate a motor vehicle upon South Carolina’s public highways is not
a property right, but is a mere privilege subject to reasonable regulations in
the interests of public safety and welfare. Sponar v. S.C. Dep’t of Pub.
Safety, 361 S.C. 35, 39, 603 S.E.2d 412, 415 (Ct. App. 2004) (quoting Summersell
v. S.C. Dep’t of Pub. Safety, 334 S.C. 357, 366, 513 S.E.2d 619, 624 (Ct.
App. 1999), vacated in part on other grounds, 337 S.C. 19, 522 S.E.2d
144 (1999)), cert. granted, (Nov. 17, 2005). 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.
Section 56-5-2950(a) continues:
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 driver’s license of a motorist who
refuses to submit to the testing required under Section 56-5-2950(a) must be immediately
suspended. However, under S.C. Code Ann. § 56-5-2951(B)(2) (2006), 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); S.C. Dep’t of Motor Vehicles v. Nelson, 364 S.C.
514, 526, 613 S.E.2d 544, 550 (Ct. App. 2005). According to the South Carolina
Supreme Court, Section 56-5-2951(B)(2) hearings should be designed so as to
handle license revocation matters quickly. See State v.
Bacote, 331 S.C. 328, 333, 503 S.E.2d 161, 164 (1998).
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 SLED Implied Consent Policy 8.12.5(D), 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. 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).
Once prima facie evidence is offered to show that a
motorist was advised in writing of the rights enumerated in Section 56-5-2950,
the burden shifts to the motorist to produce evidence showing that he was not
so advised. See State v. Parker, 271 S.C. 159, 164, 245 S.E.2d
904, 906 (1978); see also Ponce v. Commonwealth, Dep’t of
Transp., Bureau of Driver Licensing, 685 A.2d 607, 610-11 (Pa. Commw. Ct. 1996); Johnson v. Director of Revenue, 168 S.W.3d 139, 142 (Mo. Ct. App. 2005).
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).
Here,
Officer McCoy testified that he is a certified breathalyzer operator.
(Transcript of Hearing, p. 12 at 20-22). He also testified that he observed
Officer McKenzie conduct the DataMaster process and Billie’s subsequent refusal
to take the DataMaster test. (Transcript of Hearing, p. 5 at 4-6 and 16-25).
When asked whether Billie was given his implied consent rights, Officer McCoy
responded “I know it happened…but I wasn’t the one [who] advised him of it.”
(Transcript of Hearing, p. 12 at 12-16). Taken together, and in light of the
fact that there is nothing in the record that suggests that Officer McKenzie
did not give Billie the Implied Consent Advisement or that he gave him the
wrong advisement, Officer McCoy’s testimony constituted prima facie evidence that Billie was
given the DUI Advisement in writing. Although Officer McCoy did not administer
the breath test, the fact that he and Officer McKenzie are certified DataMaster
operators raises the presumption that the advisement was given properly. See, e.g., Parker, 271 S.C. at 163-64, 245 S.E.2d at 906 (holding that
a breath test operator’s testimony that he had been certified by the South
Carolina Law Enforcement Division constituted prima facie evidence that the
breath test was administered by a qualified person in the proper manner); see also 29 Am. Jur. 2d Evidence § 203 (1994) (“In the absence of
evidence to the contrary, the law assumes that public officials have performed
their duties properly, unless the official act in question appears irregular on
its face.”)
Thus, because the Department presented prima facie
evidence to show that Billie was advised in writing of the rights enumerated in
Section 56-5-2950, the burden shifted to Billie to present evidence showing
that he was not so advised. Billie did not present any such evidence.
Therefore, the DMVH hearing officer erred by rescinding Billie’s suspension.
Moreover,
assuming, arguendo, that Billie was not given a written copy of the
form, his suspension could be upheld. In Taylor v. S.C. Dep’t. of Motor Vehicles, 368 S.C. 33, 627 S.E.2d 751, (Ct. App. 2006), a
motorist’s drivers license was suspended after he refused to submit to a blood
test after being arrested for Driving Under the Influence. The arresting
officer read the implied consent advisement but neglected to provide a written
copy of the form to the motorist. In upholding the suspension, the Court
concluded that the motorist was not prejudiced by the fact that the arresting
officer did not provide a written copy of the advisement. See Taylor, 368 S.C. at 38,
627 S.E.2d at 753.
There is no evidence of prejudice to Billie in the record
here. Thus, even if Officer McKenzie failed to provide Billie a written copy of
his implied consent rights, I find that the DMVH hearing officer’s Final Order
must be reversed.
ORDER
It
is hereby ordered that the DMVH’s Final Order and Decision is REVERSED and the
Department’s suspension of Billie’s driver’s license is reinstated.
AND IT IS SO ORDERED.
______________________________
John D. McLeod
Administrative
Law Judge
November 29, 2007
Columbia, South Carolina
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