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 (2006
& Supp. 2006). The Department contends that the DMVH hearing officer
erroneously rescinded the driver’s license suspension of Respondent Joshua
Wayne Bowers (Bowers). The Administrative Law Court (ALC or Court) has
jurisdiction to review 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 March 25, 2006, Trooper
R.M. McFadden (Trooper McFadden) of the South Carolina Highway Patrol arrested
Bowers for driving under the influence (DUI) and transported him to the
Lexington County Jail for a DataMaster test. Upon arriving at the jail, Trooper
McFadden, a certified DataMaster operator, began the process of administering a
DataMaster test to Bowers. When Bowers was given the opportunity to provide a
breath sample, he refused. As a result of his refusal, Bowers was issued a
Notice of Suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (2006).
Bowers subsequently filed
a request with the DMVH for an administrative hearing to challenge the
suspension. An administrative hearing was held on May 17, 2006. No motions
were made and no issues were raised at the start of the hearing. Trooper
McFadden, the sole person to testify at the hearing, provided the following relevant
testimony:
Upon arriving at the jail, Mr. Bowers was given his Miranda warnings;
I also gave him his advisement of implied consent rights. After the twenty
minute observation period, I attempted to administer the breath test to Mr.
Bowers off of the DataMaster, which he refused.
Bowers did not cross-examine Trooper
McFadden about the implied consent advisement, and the implied consent form was
not introduced into evidence. During his closing argument, Bowers argued that his
suspension should be rescinded because Trooper McFadden failed to specifically
testify that he advised Bowers in writing of his implied consent
rights. Trooper McFadden responded to Bowers’ argument by stating that “he was
informed in writing at the jail” and that “he was given the form.” However, the
record was closed at the time that Trooper McFadden made these clarifying
remarks.
On September 22, 2006,
the DMVH hearing officer issued a Final Order and Decision rescinding Bowers’
suspension. Specifically, the hearing officer held in pertinent part:
[T]he officer failed to prove that he advised Respondent of
the Implied Consent Rights in writing prior to the refusal. The officer
testified that he gave the Miranda Rights and Implied Consent Rights to
Respondent but he failed to specify the manner he gave the Advisement of
Implied Consent Rights. Accordingly, the relief requested by the [Respondent]
must be granted.
The Department
now appeals.
ISSUES
ON APPEAL
1. Does this Court lack the authority to reverse the DMVH’s Final Order and
Decision?
2. Did the DMVH hearing officer err by rescinding Bowers’ suspension on the
grounds that the Petitioners failed to demonstrate that Bowers was given the
implied consent advisement in writing?
3. Did
the Petitioners sufficiently establish that Bowers was given the correct implied consent advisement?
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).
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
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). 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). Section 56-5-2951 nevertheless 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 a Section 56-5-2951
hearing, the initial burden of proof is borne by the Department and/or the
applicable law enforcement agency. See, e.g., S.C. Dep’t of
Motor Vehicles v. Lavigne, 06-ALJ-21-0056-AP (January 10, 2007); S.C.
Dep’t of Motor Vehicles v. Boyle, 06-ALJ-21-0340-AP (September 11, 2006); S.C.
Dep’t of Motor Vehicles v. Heyward, 06-ALJ-21-0533-AP (February 9, 2007); S.C.
Dep’t of Motor Vehicles v. Witt, 06-ALJ-21-0630-AP (July 5, 2007). However,
once a prima facie case is established against the motorist, the burden shifts
to the motorist to present evidence to rebut the prima facie case. S.C.
Dep’t of Motor Vehicles v. Powers, 06-ALJ-21-0578-AP (January 10, 2007)
(explaining the application of this principle throughout the states).
Thus, if a prima facie
case is established against the motorist and the motorist fails to present any
evidence to rebut it, then judgment must go against the motorist. See Arkwright
Mills v. Clearwater Mfg. Co., 217 S.C. 530, 539, 61 S.E.2d 165, 168-69
(1950) (“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.”); accord 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.”).
ALC’s
Authority to Reverse the DMVH’s Final Order and Decision
As an initial matter, Bowers
argues that this Court does not have the authority to reverse the DMVH’s Final
Order and Decision because the Department has failed to argue and, according to
Bowers, “nothing in this record remotely suggests” that substantial rights of
the Department were prejudiced by the DMVH’s Final Order and Decision. I
disagree.
Pursuant to Section
1-23-380(A)(5), the ALC may reverse a decision of the DMVH where an error has
caused (1) substantial rights of the appellant (2) to be prejudiced. With
respect to the first requirement, the right of the Department, as a State
agency, to implement the administrative suspension 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, and the purpose of administratively suspending a motorist’s license for
refusing to submit to chemical testing is to protect those who use such roads.
In Mackey v. Montrym,
443 U.S. 1 (1979), the United States Supreme Court explained how, with respect
to Massachusetts’ implied consent law, a State’s interest in public safety is
“substantially served” by the summary suspension 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 Bowers’
administrative suspension is a substantial right.
With regard to the
second requirement, 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 was not harmless since it “could
have reasonably affected the result of the trial”). Here, the Department is
arguing that the reason given by the hearing officer for rescinding Bowers’
suspension is permeated with error. Therefore, if the Department is correct,
then the Department was prejudiced by this error.
For these reasons, this
Court will not, as Bowers urges, affirm the DMVH’s Final Order and Decision
without addressing the substantive issues on appeal.
Implied
Consent Rights Advisement
The Department argues
that the DMVH hearing officer erred by rescinding Bowers’ suspension on the
grounds that the Petitioners failed to adequately demonstrate that Bowers was advised
in writing of his implied consent rights. Specifically, the Department contends
that Trooper McFadden’s testimony sufficiently established that Bowers was, at
the very least, orally advised of his implied consent rights, and that,
therefore, any failure by Trooper McFadden to advise Bowers in writing of his implied consent rights did not warrant rescission of Bowers’ suspension
since Bowers 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).
a.
Taylor and the “In Writing” Requirement
In Taylor, a
motorist who was arrested for DUI had his driver’s license suspended pursuant
to Section 56-5-2951(A) after he refused to submit to a blood test. Prior to
the motorist’s refusal, the arresting officer read out loud to the motorist a
copy of the implied consent form, but did not provide the motorist with a
tangible copy of the form. In addressing the legal significance of the fact
that the motorist did not receive a tangible copy of the implied consent form, the
Court of Appeals, relying on State v. Huntley, 349 S.C. 1, 5, 562 S.E.2d
472, 474 (2002), stated that:
[In Huntley], the supreme court reversed the
suppression of the breathalyzer test results because the defendant was not
prejudiced by the statutory violation committed by the breathalyzer operator.
Consequently, the Huntley decision dictates that a violation of section
56-5-2950 without resulting prejudice will not lead to a suppression of the
evidence obtained pursuant to this section.
Taylor, 368 S.C. at 38, 627
S.E.2d at 754. The Court of Appeals then noted that the motorist did not argue
that he was not advised of his implied consent rights, or that he would have
provided a blood sample if he had been advised of his implied consent rights in
writing. Id. It therefore concluded that the motorist was not
prejudiced by the fact that the arresting officer did not provide him with a
tangible copy of the implied consent advisement form. Id. Thus, the
Court of Appeals held that the circuit court erred in reversing the hearing
officer’s order. Id.
Here,
the record demonstrates that Bowers was, at the very least, orally advised of
his implied consent rights. As discussed above, Trooper McFadden testified
that that he “gave [Bowers] his advisement of implied
consent rights.” Therefore, pursuant to Taylor, any failure by Trooper
McFadden to advise Bowers in writing of his implied consent rights did
not warrant rescission of Bowers’ suspension since Bowers neither argued nor
presented any evidence to show that he suffered prejudice as a result of such
failure.
b.
Evidence of Correct Advisement
Bowers argues – as an
additional sustaining ground – that the Petitioners failed to sufficiently
establish that he was advised, in any fashion, of the correct implied
consent rights and that Taylor is therefore inapplicable to this case.
I disagree.
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 (FUI) Advisement; and (8) Shooting Under the Influence (SUI)
Advisement.
All of SLED’s implied consent advisements are set forth on forms that are
provided to law enforcement agencies by SLED.
Of the eight different implied consent advisements, it is the DUI Advisement that
sets forth the rights enumerated in Section 56-5-2950. See Cole &
Huff, supra note 13, at 341 (setting forth copy of DUI Advisement form).
As discussed above, 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, the record
contains prima facie evidence to show that Bowers was given the correct implied
consent advisement, i.e., the DUI Advisement. First of all, the evidence
clearly demonstrates that Trooper McFadden, who acted as both the arresting
officer and the DataMaster operator, was aware that Bowers had been arrested
for DUI.
Second, Trooper
McFadden testified that that he gave Bowers “his advisement of implied
consent rights,” thus suggesting that he gave Bowers the implied consent advisement
that was applicable to Bowers in his current situation. Importantly,
determining which implied consent advisement to give to a motorist in a certain
situation does not appear to be difficult. For instance, the name of each
advisement is set forth in bold, capital letters at the top of each
advisement. See Cole & Huff, supra, at 236, 341-42 (setting
forth copies of the eight different implied consent advisements). In addition,
each advisement clearly states the statutory violation for which the individual
has been detained. See id. For example, the first bulleted item
in the FUI Advisement reads: “You are under arrest for operating or acting as a
flightcrew member of aircraft while under the influence of alcohol or drugs,
Section 55-1-100, South Carolina Code of Laws 1976, as amended.” See Cole & Huff, supra, at 236.
Third, the evidence in
the record shows that Trooper McFadden took actions that were consistent with a
DUI refusal situation, and that were inconsistent with other “implied consent”
refusal situations. For instance, on the Notice of Suspension, Trooper
McFadden checked the “Refusing to submit to a breath, blood or urine test” box
that was located under the heading, “Any age under arrest for DUI.” He did not check the “Refusing to submit to a breath, blood or urine test” box that
was located under the heading, “Under the Age of Twenty-One (21) and not
under Arrest for DUI,” which would have been appropriate for a Zero Tolerance
refusal situation. See S.C. Code Ann. § 56-1-286 (2006) (“Zero
Tolerance” statute); see also Cole & Huff, supra, at 342
(setting forth copy of Zero Tolerance Advisement). Moreover, under “Vehicle
Type,” Trooper McFadden checked “Noncommercial,” rather than “Commercial.”
Furthermore, to penalize Bowers for refusing testing, Trooper McFadden suspended
Bowers’ driver’s license. Notably, the BUI, FUI and SUI statutes do not list
suspension of one’s driver’s license as a possible penalty for refusing testing. See S.C. Code Ann. § 50-21-114(E) (Supp. 2006) (stating that the penalty
for refusing the BUI implied consent test is a 180-day suspension of privilege
to operate a water device); S.C. Code Ann. § 55-1-100(B) (Supp. 2006) (stating
that the penalty for refusing the FUI implied consent test is a fine of $200 or
imprisonment for a period of between 48 hours and 30 days, or both); S.C. Code
Ann. §§ 23-31-400 to 23-31-420 (Supp. 2005) (not setting forth a punishment for
refusing the SUI implied consent test); see also Cole & Huff, supra,
at 236, 342 (setting forth copies of BUI, FUI and SUI advisements). Trooper
McFadden also testified that, after Bowers refused testing, he was charged with
DUI.
Finally, Trooper
McFadden testified that he was certified to administer DataMaster tests. Importantly,
as SLED policy makes clear, one portion of the DataMaster administration
process is the provision of the implied consent rights advisement. See SLED
Implied Consent Policy 8.12.5(C)(1). Thus, the evidence presented at the
hearing demonstrated that Trooper McFadden had received training on when to
give each different implied consent advisement.
Taken together, the
foregoing constituted prima facie evidence that Trooper McFadden gave Bowers the
correct implied consent advisement. See 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.”).
Therefore, because none of this evidence was contradicted or weakened in any
way, the Petitioners were entitled to a ruling in their favor on this issue. See, e.g., Arkwright
Mills, 217 S.C. at 539, 61 S.E.2d at 168-69; Moffitt
v. Commonwealth, 434 S.E.2d at 687.
Stated
differently, Bowers’ mere speculation that the wrong advisement might have been
given to him is simply not enough to rescind Bowers’ suspension. Speculation
alone does not meet the substantial evidence standard. See Herndon
v. Morgan Mills, Inc., 246 S.C. 201, 217, 143 S.E.2d 376, 385 (1965)
(reversing lower tribunal’s determination that employee’s death was causally
connected to the accident at issue where the determination was supported only
by “speculation and surmise”). The Supreme Court’s decision in State v.
Hyder, 242 S.C. 372, 131 S.E.2d 96 (1963), illustrates this point well. In
that case, the defendant claimed on appeal that the trial court erred by
admitting into evidence field glasses that were identical to the ones used by the
State’s witness to observe events that transpired on the day of the alleged
crime. The defendant argued that it was possible that the field glasses that
were actually used could have been dropped or knocked out of focus or in some
way defective. The Supreme Court, however, rejected the defendant’s claim. In
doing so, the Supreme Court stated:
There is no evidence of such [defectiveness] in this record
nor did the appellant cross examine the witness of the State thereabout. The
fact that the field glasses as used by the State’s witness were not produced
did not deny the appellant the opportunity of cross examining the witness about
the condition of such glasses.
Hyder,
242 S.C. at 381, 131 S.E.2d at 101-02.
Similarly, in this
case, though different implied consent advisements exist, there is no evidence
in the record supporting the conclusion that the wrong advisement was given to Bowers.
In fact, the evidence strongly suggests just the opposite.
Moreover, the fact that Trooper McFadden failed to introduce the advisement
form into evidence did not prevent Bowers from cross-examining Trooper McFadden
about the specific advisement given. Therefore, the only reasonable conclusion
to be drawn from the evidence in the record is that Trooper McFadden correctly gave
Bowers the DUI Advisement. See 2 Kenneth S. Broun et al., McCormick
on Evidence § 338 (John W. Strong ed., 5th ed. 1999).
Additionally, even if
this Court were to agree with Bowers’ claim that the Petitioners failed to
adequately establish that he was given the correct implied consent
advisement (which it clearly does not), rescission of Bowers’ suspension would
still not be warranted. As discussed above, the Court held in Taylor that a violation of Section 56-5-2950, without resulting prejudice, will not
lead to the suppression of evidence obtained pursuant to Section 56-5-2950. Taylor, 368 S.C. at 38, 627 S.E.2d at 754. In this case, the record plainly
demonstrates that Bowers exercised both his right to refuse testing and his
right to request an administrative hearing. Additionally, the record also indicates
that Bowers was advised of his right to have a qualified person of his own
choosing conduct an additional independent test.
Thus, it appears that the only plausible way prejudice could have occurred is
if the information contained in the implied consent advisement regarding the
consequences of refusing testing affected Bowers’ decision to refuse.
However,
the record does not demonstrate that occurred in this case. For instance, Bowers
provided no testimony as to how he made his decision to refuse testing.
Therefore, it is unclear what, if any, effect the implied consent rights
advisement had on Bowers’ decision to refuse testing.
Moreover, in order to make a credible determination as to whether a motorist
arrested for DUI suffered prejudice as a result of receiving the wrong implied
consent advisement, it is generally important to know which specific incorrect advisement he received. For instance, while the DUI Advisement informs
motorists that their licenses must be suspended for at least ninety days if
they refuse testing, the Zero Tolerance Advisement informs motorists that their licenses must be
suspended for at least six months if they refuse testing. Thus, receiving the Zero Tolerance Advisement, rather than the DUI Advisement,
would likely make a motorist less inclined to refuse testing — not more so.
In this case, the only evidence in the record regarding the implied consent
advisement is the evidence discussed above. Certainly, if such evidence is
insufficient to show that Bowers was given the DUI Advisement, then it is also
insufficient to demonstrate that Bowers was not given the Zero Tolerance
Advisement. Consequently, based on the existing record, a finding of prejudice
in this case would be too conjectural and therefore would not be warranted.
Accordingly, for this reason as well, Bowers is not entitled to rescission of
his suspension simply because Trooper McFadden failed to expressly testify as
to which implied consent advisement he gave Bowers.
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
April 9, 2008
Columbia, South Carolina
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