South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
SCDMV vs. David L. Johnson

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Appellant:
South Carolina Department of Motor Vehicles

Respondents:
David L. Johnson
 
DOCKET NUMBER:
06-ALJ-21-0809-AP

APPEARANCES:
n/a
 

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 The Department contends that the DMVH hearing officer erroneously rescinded the driver’s license suspension of Respondent David L. Johnson (Johnson).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.[1] 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?[2]

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).[3] 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).[4] 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.[5] 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).[6] 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. [7]

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



[1] Specifically, Trooper Hubbard testified:

I had a problem with the video system before the test was administered. I was not advised that SLED changed the video system from VHS to digital where anybody can view it online. I have no training in that either. I was not advised. It was my first time running the video machine.

[2] It is unclear whether the DMVH hearing officer considered Trooper Hubbard’s failure to videotape the testing process to be a separate ground for rescission of Johnson’s suspension or whether the DMVH hearing officer mentioned it solely to lend support to his conclusion that the Department failed to sufficiently prove that Johnson was advised of his implied consent rights in writing. Nevertheless, because the Department has raised this issue as a separate issue, it will be addressed as such.

[3] Pursuant to S.C. Code Ann. § 1-23-380(B) (Supp. 2006), administrative law judges must conduct appellate review in the same manner prescribed in Section 1-23-380(A).

[4] Blood and urine tests may be administered to motorists arrested for DUI only if certain other conditions are met. See S.C. Code Ann. § 56-5-2950(a) (2006).

[5] In his findings of fact, the DMVH hearing officer expressly found that “Trp. Hubbard advised Respondent of his Implied Consent Rights . . .” Therefore, this Court disagrees with Johnson’s claim that the hearing officer found that the testimony presented by Trooper Hubbard was insufficient to establish that Johnson was properly advised of his implied consent rights in any format. Instead, it is this Court’s view that the DMVH hearing officer rescinded Johnson’s suspension on the grounds that the Department failed to sufficiently prove that Johnson was advised in writing of his implied consent rights.

[6] Section 56-5-2953(A) states that “a person who violates Section 56-5-2930, 56-5-2933, or 56-5-2945 must have his conduct at the incident site and the breath test site videotaped.” Although Section 56-5-2953(B) sets forth exceptions to this rule, the Department has not argued that any of the exceptions apply here.

[7] The South Carolina Supreme Court also recently addressed the application of Section 56-5-2953 in City of Rock Hill v. Suchenski, 374 S.C. 12, 646 S.E.2d 879 (2007). In that case, the defendant, who was charged with a violation of S.C. Code Ann. § 56-5-2933, argued that the arresting officer’s failure to provide a complete videotape of the incident-site events as required by Section 56-5-2953 mandated dismissal of his charges. On appeal, the South Carolina Supreme Court agreed with the defendant. Specifically, the court reasoned:

[Section 56-5-2953(B)] provides, “Failure by the arresting officer to produce the videotapes required by this section is not alone a ground for dismissal of any charge made pursuant to Section 56-5-2930, 56-5-2933, or 56-5-2945 if [exceptions apply] ...” (emphasis added). Conversely, failure to produce videotapes would be a ground for dismissal if no exceptions apply.

Suchenski, 374 S.C. at 16, 646 S.E.2d at 881 (emphasis added). However, in the present case, unlike in Suchenski, the underlying hearing was not held to adjudicate a “charge made pursuant to Section 56-5-2930, 56-5-2933, or 56-5-2945.” Moreover, unlike in Suchenski, there is an applicable statute – Section 56-5-2951(F) – that states that compliance with Section 56-5-2953 is not a relevant issue in hearings such as the one held below. Therefore, Suchenski is inapplicable to the present case.


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