ORDERS:
ORDER
STATEMENT
OF THE CASE
This
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 a Final Order and Decision following an
administrative hearing held pursuant to S.C. Code Ann. § 56-5-2951 (2006 &
Supp. 2006). The Department contends that the DMVH hearing officer erroneously
rescinded the driver’s license suspension of Respondent David L. Johnson (Johnson).
The Administrative Law Court (ALC or Court) has jurisdiction to review this
matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2006). Upon consideration
of the briefs, the DMVH’s Final Order and Decision is reversed.
BACKGROUND
On July 14, 2006, Trooper
A.S. Hubbard (Trooper Hubbard) of the South Carolina Highway Patrol was
dispatched to a single-vehicle accident in Lexington County, South Carolina. Trooper
Hubbard identified Johnson as the driver of the vehicle involved in the
accident. After detecting an odor of alcohol on Johnson’s breath, Trooper
Hubbard asked Johnson if he had consumed any alcohol prior to the accident. Johnson
stated that he had consumed “two liquor drinks” about an hour before the
accident. Johnson also admitted to Trooper Hubbard that he “shouldn’t be
driving.” Trooper Hubbard administered field sobriety tests to Johnson and Johnson
failed the tests. Trooper Hubbard then arrested Johnson for driving under the
influence (DUI) and transported him to the Lexington County Detention Center for a DataMaster test.
At the detention
center, Trooper Hubbard, a certified DataMaster operator, proceeded to
administer a DataMaster test to Johnson. Johnson, however, failed to provide
an adequate breath sample for the test. Trooper Hubbard treated the incident
as a refusal and issued Johnson a Notice of Suspension pursuant to S.C. Code
Ann. § 56-5-2951(A) (2006). Johnson refused to sign any of the relevant
paperwork.
Thereafter, pursuant to
S.C. Code Ann. § 56-5-2951(B)(2) (2006), Johnson filed a request for an
administrative hearing to challenge the suspension. An administrative hearing
was held on August 8, 2006. Among other testimony he provided at the hearing,
Trooper Hubbard testified that “Mr. Johnson was advised of his implied consent
rights.” Trooper Hubbard also testified that he did not videotape Johnson’s conduct
at the detention center because he had “a problem” with the video system.
Johnson neither testified at the hearing nor presented any other evidence.
On September 28, 2006,
the DMVH hearing officer issued a Final Order and Decision rescinding Johnson’s
suspension. Specifically, the hearing officer held:
The officer failed to prove he advised Respondent of the
Implied Consent Advisement Rights in writing prior to a breath test. He
testified that he advised Respondent of the Implied Consent Advisement but
failed to specify the manner he advised him. There were no documents offered
into evidence to support his allegations. Also, the testing process was not
videotaped. I conclude as a matter of law that the investigating officer
failed to meet his burden of proof.
The Department
now appeals.
ISSUES
ON APPEAL
1. Did the DMVH hearing officer err by rescinding Johnson’s suspension on
the grounds that the Department failed to demonstrate that Johnson was given
the implied consent advisement in writing?
2. Did the
DMVH hearing officer err by rescinding Johnson’s suspension on the grounds that
Trooper Hubbard failed to videotape the testing process?
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).
A decision is supported
by “substantial evidence” when the record as a whole allows reasonable minds to
reach the same conclusion reached by the agency. Bilton v. Best Western
Royal Motor Lodge, 282 S.C. 634, 641, 321 S.E.2d 63, 68 (Ct. App. 1984). A
decision will not be set aside simply because reasonable minds may differ on
the judgment. Lark v. Bi-Lo, Inc., 276 S.C. 130, 136, 276 S.E.2d 304,
307 (1981). The fact that the record, when considered as a whole, presents the
possibility of drawing two inconsistent conclusions from the evidence does not
prevent the agency’s findings from being supported by substantial evidence. Waters
v. S.C. Land Resources Conservation Comm’n, 321 S.C. 219, 226, 467 S.E.2d
913, 917 (1996); Grant v. S.C. Coastal Council, 319 S.C. 348, 353, 461
S.E.2d 388, 391 (1995).
In
applying the substantial evidence rule, the factual findings of the
administrative agency are presumed to be correct. Rodney v. Michelin Tire
Co., 320 S.C. 515, 519, 466 S.E.2d 357, 359 (1996) (citing Kearse
v. State Health and Human Servs. Fin. Comm’n, 318 S.C. 198, 200, 456 S.E.2d
892, 893 (1995)). The party challenging an agency action has the burden of
proving convincingly that the agency’s decision is unsupported by substantial
evidence. Waters, 321 S.C. at 226, 467 S.E.2d at 917.
DISCUSSION
Summary
of Applicable Law
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 & Supp. 2006). Section 56-5-2950 declares that
a motorist arrested for DUI implicitly consents to a chemical test of his
breath, blood or urine for the purpose of determining the presence of alcohol
or drugs, and it requires that, at the direction of the arresting officer, a breath
test be administered to a motorist so arrested. 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 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.
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) (Supp. 2006).
In
an administrative hearing held 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) (holding that the
Department bears the burden of proof in a Section 56-5-2951 hearing); S.C.
Dep’t of Motor Vehicles v. Boyle, 06-ALJ-21-0340-AP (September 11, 2006)
(same); S.C. Dep’t of Motor Vehicles v. Heyward, 06-ALJ-21-0533-AP
(February 9, 2007) (same); S.C. Dep’t of Motor Vehicles v. Witt,
06-ALJ-21-0630-AP (July 5, 2007) (same). However, once the Department
establishes a prima facie case, the burden shifts to the motorist to present
evidence to rebut the Department’s case. See, e.g., Johnson
v. Director of Revenue, 168 S.W.3d 139, 142 (Mo. Ct. App. 2005); Ponce v. Commonwealth, Dep’t of Transp., Bureau of Driver Licensing, 685 A.2d
607, 610-11 (Pa. Commw. Ct. 1996). If the Department establishes a prima facie
case and the motorist fails to present any evidence to rebut it, then judgment
must go in the Department’s favor. See, e.g., Threlkeld v. Breaux Ballard Inc., 177
S.W.2d 157, 161 (Ky. 1944) (“It is the settled rule of law that once a party
establishes a prima facie case, judgment will go in his favor unless the
opposite party produces evidence sufficient to overcome the prima facie
presumption.”); Moffitt v. Commonwealth, 434 S.E.2d 684, 687 (Va. Ct.
App. 1993) (“Once the Commonwealth has established a prima facie case, it is
entitled to judgment, unless the respondent goes forward with evidence that
refutes an element of the Commonwealth’s case or rebuts the prima facie
presumption.”).
Implied
Consent Rights Advisement
In this case, the
Department argues that the DMVH hearing officer erred by rescinding Johnson’s
suspension on the grounds that Trooper Hubbard failed to specify the manner in
which he advised Johnson of his implied consent rights. Specifically, the
Department contends that even if Johnson was merely orally advised of his
implied consent rights, rescission of Johnson’s suspension was not warranted since
Johnson failed to demonstrate prejudice. In making this argument, the
Department cites Taylor v. S.C. Dep’t. of Motor Vehicles, 368
S.C. 33, 627 S.E.2d 751 (Ct. App. 2006), cert. granted, Shearouse Adv.
Sh. No. 35 (2007). Johnson, however, claims that “[t]he ruling of the AHO
specifically states that his factual determination was that the testimony
presented by Trooper Hubbard was insufficient to establish that the Defendant
was properly advised of his implied consent rights, either written, or by other
format.”
a.
Evidence of Oral Advisement
Absent
any proof to the contrary, prima facie evidence is sufficient to establish that
law enforcement complied with Section 56-5-2950 in administering a breath
test. See State v. Parker, 271 S.C. 159, 164, 245 S.E.2d
904, 906 (1978). 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, Trooper Hubbard
testified – and the DMVH hearing officer found – that Johnson was
“advised” of his implied consent rights.
Trooper Hubbard’s testimony was not contradicted, and there is nothing in the
record that is remotely inconsistent with it. Moreover, Trooper Hubbard was
neither cross-examined regarding this testimony nor otherwise impeached as a
witness. Furthermore, because Trooper Hubbard is a law enforcement officer and
a certified DataMaster operator, his uncontradicted testimony is worthy of
reliance. See Mackey v. Montrym, 443 U.S. 1, 14 (1979)
(concluding, in a case involving Massachusetts’ implied consent law, that the
risk of erroneous observation or deliberate misrepresentation of the facts by a
law enforcement officer in the ordinary case seemed “insubstantial”). For
these reasons, the substantial evidence established that Bennett was, at the
very least, orally advised of his implied consent rights. See, e.g., 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.”); Cheatham v. Gregory, 313 S.E.2d
368, 370 (Va. 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 . . .”). Having made
this conclusion, I will now discuss the applicability of the Taylor decision to the present case.
b.
Taylor Decision
In Taylor, a
motorist’s driver’s license was suspended pursuant to Section 56-5-2951(A) based
on the motorist’s refusal to submit to a blood test after being arrested for
driving under the influence. Although the arresting officer orally read the
Section 56-5-2950(a) rights listed in the implied consent form to the motorist,
the officer did not provide him with a written copy of the form. The motorist
challenged the suspension because he was not informed of the implied consent rights
in writing as provided by Section 56-5-2950. In addressing that claim, the
Court of Appeals held that:
Taylor does not argue that he did not receive the implied
consent rights, or that he would have provided a blood test if he had received
the implied consent rights in writing. Therefore, Taylor was not prejudiced by
the fact that Officer Hamm read the implied consent rights out loud. Because Taylor was not prejudiced, the trial court erred in reversing the administrative hearing
officer’s order.
Taylor, 368 S.C. at 38, 627
S.E.2d at 754.
Here, as discussed
above, the record demonstrates that Johnson was, at the very least, orally
advised of his implied consent rights prior to refusing to submit to the
DataMaster test. Therefore, pursuant to Taylor, any failure by Trooper
Hubbard to advise Johnson in writing of his implied consent rights did
not warrant rescission of Johnson’s suspension since there is no evidence in
the record that demonstrates that Johnson suffered prejudice as a result. As
mentioned above, Johnson neither testified at the hearing nor presented any
other evidence.
Johnson, however, claims
that the present case “addresses a situation distinctively different from the
basis of the ruling in Taylor.” Specifically, Johnson argues that,
unlike in Taylor, the administrative hearing officer in this case
“clearly” found that Johnson suffered prejudice as a result of not being
advised in writing of his implied consent rights. Johnson further argues that
this Court is precluded from “substituting its judgment” for that of the
hearing officer.
This argument is unpersuasive.
In this case, the hearing officer made no findings of fact as to whether Johnson
suffered prejudice. Moreover, as mentioned above, there is no evidence in the
record that indicates that Johnson suffered prejudice. Therefore, it would be
unreasonable for this Court to conclude that the hearing officer made a
determination that Johnson suffered prejudice.
Accordingly, pursuant
to Taylor, the mere fact that Trooper Hubbard failed to specify at the
hearing the manner in which he advised Johnson of his implied consent rights
did not warrant the rescission of Johnson’s suspension.
Failure
to Tape Johnson’s Conduct at the DataMaster Site
The Department also
argues that the DMVH hearing officer erred by rescinding Johnson’s suspension
on the grounds that the DataMaster testing process was not videotaped as
required by S.C. Code Ann. § 56-5-2953 (2006).
Specifically, the Department argues that, because Section 56-5-2951(F) limits
the scope of the administrative hearing to a handful of issues, none of which
includes the issue of whether law enforcement complied with Section 56-5-2953,
the DMVH hearing officer should not have rescinded Johnson’s suspension based
on Trooper Hubbard’s failure to comply with Section 56-5-2953. I agree.
A similar issue was
addressed by the Court of Appeals in S.C. Dep’t of Motor Vehicles v. Nelson,
364 S.C. 514, 613 S.E.2d 544 (Ct. App. 2005). In that case, a motorist who was
arrested for DUI had his driver’s license suspended pursuant to Section
56-5-2951 after he refused to submit to a breath test. The Department’s
hearing officer upheld the suspension. However, the circuit court reversed,
concluding that the breath test was not offered within three hours of the
arrest as required by Section 56-3-2953. The Court of Appeals subsequently
reversed the circuit court’s decision and reinstated the suspension. In doing
so, the Court of Appeals acknowledged that law enforcement did not comply with
Section 56-5-2953. Nonetheless, the Court held that law enforcement’s
non-compliance with Section 56-5-2953 did not warrant the rescission of the
motorist’s administrative suspension. In making this holding, the Court of
Appeals explained:
. . . [N]othing in the code instructs that a failure to
comply with section 56-5-2953 warrants the dismissal of prosecution for failure
to submit to testing pursuant to section 56-5-2950 . . . Because Nelson did
not consent to testing, the scope of the hearing was limited to whether Nelson
(1) was lawfully arrested, (2) was advised in writing of his section 56-5-2950
rights, and (3) refused to submit to a test. The hearing officer determined
that Nelson had been lawfully arrested, had been advised of his rights, and had
refused to submit to the test offered in accordance with section 56-5-2950. The
circuit court’s reversal of the hearing officer was outside the purview of the
proper scope of review. Accordingly, we find the only relevant issues at the
administrative hearing were not in dispute. The circuit court erred in
considering the violation of the three-hour videotaping requirement.
Nelson, 364 S.C. at 524-26,
613 S.E.2d at 549-550.
Likewise,
in this case, as Section 56-5-2951(F) makes clear, the scope of the hearing
simply did not include the issue of whether or not Section 56-5-2953 was
violated. Therefore, because compliance with Section 56-5-2953 was not a
proper issue to be considered at the hearing, the DMVH hearing officer should
not have rescinded Johnson’s suspension based on Trooper Hubbard’s failure to
comply with that provision.
For these reasons, the DMVH’s Final Order and Decision must
be reversed.
ORDER
IT
IS THEREFORE ORDERED that the DMVH’s Final Order and Decision is REVERSED.
IT
IS SO ORDERED.
______________________________
Ralph
K. Anderson, III
Administrative
Law Judge
December 31, 2007
Columbia, South Carolina
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