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) (Supp. 2007). The Department claims that the
DMVH erroneously rescinded the driver’s license suspension of Respondent Terry
Gay Hatcher (“Hatcher”). The Administrative Law Court (“ALC” or “Court”) has
jurisdiction to hear this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp.
2007). Upon consideration of the briefs, the DMVH’s Final Order and Decision
is reversed.
BACKGROUND
On
May 17, 2007, Officer Donald Lubert (“Officer Lubert”) responded to an accident
on Middle Street in Sullivan’s Island, South Carolina. Upon arriving at the
scene of the accident, Officer Lubert observed that Hatcher’s vehicle had run
off the end of the road. As he approached the vehicle, Officer Lubert asked
Hatcher if she was uninjured. Hatcher was unresponsive to Officer Lubert’s
questions and was unable to produce her driver’s license when prompted. As a
result, Officer Lubert escorted Hatcher from her vehicle. While doing so, he
noted a strong odor of alcohol emanating from Hatcher’s person. Based on these
observations, Officer Lubert asked Hatcher to perform several field sobriety
tests. Because of her condition, Officer Lubert concluded that Hatcher was
unable to perform field testing and subsequently placed her under arrest for
Driving Under the Influence (“DUI”). He informed Hatcher of her implied consent
rights, her Miranda rights, and then transported her to the Isle of Palms
Police Department where he instructed Officer Danny Calvert (“Officer Calvert”)
to offer her a breathalyzer test. While at the Isle of Palms Police Department,
Officer Calvert discovered that the DataMaster machine was not functioning properly,
whereupon both Officers transported Hatcher to the Mt. Pleasant Police
Department in order to conduct the test.
Officer
Calvert is certified DataMaster operator. At the hearing, he provided the
following testimony:
I went over to the
Isle of Palms Police Department, went inside, advised [Hatcher] that she was
being video recorded, read her her advisement of implied consent, along with
her Miranda warning….Checked her mouth for any foreign material to which there
was none, waited 20 minutes, entered the biographical data into the BAC
DataMaster and gave her the full two minutes to submit to the sobriety or to
the DataMaster. She refused. I still gave her the full two minutes. She refused
again….The DataMaster card, if you want to enter that into evidence. That was
performed over at the Mount Pleasant Police Department. As Officer [Lubert]
said, the Isle of Palms Datamaster or the machine was for some reason out of
service. Went over to Mt. Pleasant and it was successfully ran and she refused
at the time to provide a breath sample.
(R. at 10-11).
Based
on her refusal, Hatcher was issued a Notice of Suspension pursuant to S.C. Code
Ann. § 56-5-2951(A) (Supp. 2007).
Thereafter, pursuant to S.C. Code Ann. § 56-5-2951(B)(2)
(2006), Hatcher filed a request for an administrative hearing to challenge the
suspension. An administrative hearing was held on June 26, 2007. Officers Lubert
and Calvert testified at the hearing on behalf of the Department. Hatcher was
represented by her attorney at the hearing.
On June
29, 2007, the DMVH hearing officer issued a Final Order and Decision, in which she
held the following:
I find that the
Petitioner has not met the burden of proof in this case. Officer Lubert
testified that Respondent was transported to the Mt. Pleasant Police Department
for the Datamaster test because the machine would not accept the BA ticket at
the Isle of Palms Police Department. When Officer Calvert presented his
testimony he did not state if he reinstated the breath test sequence as
required by SLED policy. SLED Policy 8.12.6 (A)(3) states that if a person is
transported to another facility because of equipment [failure] or other issues,
the officer will re-initiate the breath test sequence….From the testimony given
I cannot determine if Officer Calvert performed the test sequence as required
by SLED policies….I conclude the refusal should be excluded from evidence
because the fairness of the testing procedure has not been
shown....Accordingly, the relief requested by the Respondent must be granted.
(R. at 28).
The Department
now appeals.
ISSUE
ON APPEAL
1. Was
it error for the DMVH hearing officer to rescind Hatcher’s suspension on the
grounds that Officer Calvert’s testimony has not been sufficient to establish
that he had properly initiated the breath test sequence?
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. 2007). 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. 2007); 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. 2007).
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. 2007).
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).
SLED
Policy 8.12.6 (A)(3) provides that if an “officer transports the subject to
another breath testing site because of equipment or other issues, the officer
will re-initiate the breath testing sequence. If necessary to comply with
statutory requirements related to breath site video recording, the advisement
process should be repeated at the new site.” SLED Policy 8.12.6 (A)(3) (Rev. 2003).
The Department argues that the DMVH hearing officer
erred when she determined that Officer Calvert’s testimony has not been
sufficient to establish that he had properly initiated the breath test
sequence. I agree.
Once prima facie evidence is offered to show that a
motorist was advised of the rights enumerated in Section 56-5-2950, the burden shifts
to the motorist to produce evidence showing that she was not advised in the
proper manner. 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,
the Department presented prima facie evidence to show that Hatcher was advised
in the proper manner. Officer Lubert testified that, after arresting Hatcher,
he “…escorted her to the Isle of Palms Police Department to have a BA done.
Officer Calvert came over to do the BA and he could not get the ticket to feed
into the BA machine….we then escorted her to Mt. Pleasant Police Department
where we did a BA and she refused.” (R. at 9). Officer Calvert’s testimony
established that he complied with the requisite procedures, including those requiring
advisement of implied consent and Miranda rights. See (R. at 10-11).
Furthermore, it is incontrovertible that Officer Calvert is a certified DataMaster
operator. See (R. at 11). Notably, neither Officer Lubert’s nor Officer
Calvert’s testimony clearly establish where the breath test sequence was
initiated.
Taken
together, and in light of the fact that there is nothing in the record that clearly
suggests that the test was not performed according to the proper
procedures, the above testimony constitutes prima facie evidence that the test
was performed in accord with SLED Policy 8.12.6 (A)(3). 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 Officer Calvert complied with the requirements enumerated
in SLED Policy 8.12.6 (A)(3), the burden shifted to Hatcher to present evidence
showing that proper procedures were not followed. Hatcher did not present any
such evidence. Therefore, the DMVH hearing officer erred by rescinding Hatcher’s
suspension.
Moreover,
assuming, arguendo, that Officer Calvert did not re-initiate the breath
test sequence as required by SLED Policy 8.12.6 (A)(3), it remains likely that Hatcher’s
suspension would 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 driver’s 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, 627 S.E.2d at
753. Importantly, the Court noted that a violation of 56-5-2950, without
resulting prejudice, will not warrant the rescission of a driver’s license
suspension. Id. at 754.
Here, Hatcher does not argue that she would have submitted
to testing if Officer Calvert had re-initiated the breath test sequence prior
to the Mt. Pleasant test. In other words, it is clear that Hatcher was not
prejudiced here. Accordingly, for this reason as well, the DMVH hearing
officer’s Final Order and Decision must be reversed.
ORDER
It
is hereby ordered that the DMVH’s Final Order and Decision is REVERSED and
the Department’s suspension of Hatcher’s driver’s license is reinstated.
AND IT IS SO ORDERED.
______________________________
February 11, 2008 John D. McLeod
Columbia, SC Administrative
Law Judge
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