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 erred by
rescinding the driver’s license suspension of Respondent Bobby Pittman on the
grounds that Petitioners failed to adequately prove that law enforcement
properly advised Pittman of his implied consent rights. 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 April 19, 2007, Officer
Bordallo of the North Charleston Police Department arrested Pittman for driving
under the influence (DUI) and transported him to a detention center for a breath
test. Another North Charleston police officer, Officer Wallace, administered
the breath test to Pittman. When Pittman was given the opportunity to provide
a breath sample, he refused. Based on that refusal, Pittman 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), Pittman filed a request for an
administrative hearing to challenge the suspension. An administrative hearing
was held on May 22, 2007. Officer Bordallo testified at the hearing, but
Officer Wallace did not. Pittman neither testified nor presented any other
evidence. On May 24, 2007, the DMVH hearing officer issued a Final Order and
Decision, in which she rescinded Pittman’s suspension. Specifically, she held
in pertinent part:
. . . Officer Bordallo did not submit any documents or
testimony to show what Implied Consent Advisement was read to Respondent. The
officer said that the Datamaster operator read the Implied Consent to
Respondent. There was no evidence that the Respondent was told of the consequences
of refusing the test. There was no evidence that the Respondent was told of
the other consequences involved in the Implied Consent advisement such as the
lesser suspension for taking the test and registering over a 0.15%. There was
no evidence that the Respondent was provided with a written copy. Therefore, I
conclude that prima facie evidence was not presented to show the Respondent was
advised of the DUI Advisement.
The Department now appeals.
ISSUES
ON APPEAL
1. Did
the DMVH hearing officer err by concluding that Petitioners failed to adequately
demonstrate that Pittman was given the implied consent advisement in writing?
2. Did
the DMVH hearing officer err by concluding that Petitioners failed to adequately
demonstrate that the correct implied consent advisement was given to Pittman?
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
Implied
Consent Laws - Generally
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). A prima
facie case is made by presenting 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); see also Mack v. Branch No. 12, Post Exchange, Fort Jackson,
207 S.C. 258, 272, 35 S.E.2d 838, 844 (1945) (“The words [prima facie evidence]
import that the evidence produces for the time being a certain result; but that
result may be repelled.”).
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.”).
Implied
Consent Rights Advisement
a.
“In Writing” Requirement
The
Department argues that the DMVH hearing officer erred by determining that “[t]here
was no evidence” that Pittman was provided with a written copy of the
implied consent advisement. (emphasis added). I agree.
At
the hearing, Officer Bordallo testified on direct that “Mr. Pittman was advised
of his Miranda rights and implied consent.” During the cross-examination of Officer
Bordallo, the following exchange occurred between Officer Bordallo and
Pittman’s attorney, Michael O’Neal:
O’Neal: Did you see whether or not
Officer Wallace gave Mr. Pittman a copy . . . of the implied consent rights
advisement form?
Officer Bordallo: Yes, sir.
O’Neal: Are you sure about that?
Officer Bordallo: Yes, sir.
O’Neal: You saw him hand him a
copy?
Officer Bordallo: Yes, sir.
O’Neal: Did Mr. Pittman hold it in
his hands?
Officer Bordallo: Yes, he did.
O’Neal: Did he read it?
Officer Bordallo: I assume that he
did; he looked at it.
O’Neal: Okay. You had it right
there right in front of him and he could have looked at it if he wanted to?
Officer Bordallo: Yes.
None of Officer Bordallo’s
testimony was contradicted at the hearing.
As
set forth above, a hearing officer’s factual determinations should only be
reversed when the party challenging those determinations has clearly shown that
the DMVH’s decision is unsupported by substantial evidence. Waters, 321
S.C. at 226, 467 S.E.2d at 917. Moreover, simply because testimony in the
record is uncontradicted does not render it unsupported by the evidence. Hoard
v. Roper Hosp., Inc., --- S.E.2d ----, 2008 WL 1848424 (Ct. App. 2008).
Rather, “[t]he question of the inherent probability of the testimony and the
credibility of the witness remains.” **.
On the other hand, while a tribunal does not have to accept uncontradicted
evidence as establishing the truth, the evidence should be accepted unless
there is evidence in the record establishing a reason for disbelief. Elwood
Constr. Co. v. Richards, 265 S.C. 228, 234, 217 S.E.2d 769, 771 (1975); Jackson v. State, 342 S.C. 95, 535 S.E.2d 926 (2000). Based on the
foregoing, I conclude that the hearing officer’s determination that “[t]here was
no evidence” that Pittman was provided with a written copy of the implied
consent advisement was clearly erroneous in view of the reliable, probative,
and substantial evidence on the whole record. In this case, the record
discloses no reason to justify disbelieving Officer Bordallo’s testimony.
b.
Appropriateness
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.
Here, the DMVH hearing
officer found that “Officer Bordallo testified that Officer Wallace advised
Respondent of his . . . Implied Consent.” Nevertheless, she found that there
was no evidence submitted to show which specific implied consent advisement was
given to Pittman. Therefore, she found Pittman’s favor. As noted above, the
possibility of drawing two inconsistent conclusions from the evidence presented
does not prevent the agency’s findings from being supported by substantial
evidence. However, in this case, there is no conflicting evidence from which
to reach two possible conclusions. Although different implied consent
advisements exist, there is no evidence that Pittman was given the wrong
advisement. Moreover, at no point during the hearing did Pittman ever raise
the issue of the appropriateness of the implied consent advisement.
Furthermore,
the evidence that is in the record strongly suggests that Officer Wallace
did in fact give Pittman the DUI Advisement. For instance, Officer Bordallo
testified that Pittman was arrested for DUI and that he was advised of his “implied
consent.” In addition, the Notice of Suspension, as completed, is consistent
with a DUI refusal situation. Moreover, Officer Bordallo testified that Officer Wallace was certified to
administer DataMaster tests, and one portion of the DataMaster administration
process is the provision of the implied consent advisement. See SLED
Implied Consent Policy 8.12.5(C)(1).
Taken together, the
foregoing evidence was sufficient to establish a prima facie case that Pittman
was given the DUI Advisement. See State v. Parker, 271 S.C. 159,
163-64, 245 S.E.2d 904, 906 (1978) (testimony that breath test operator 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). Therefore, because none of this evidence was
contradicted or weakened in any way, 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.[11]
Additionally, Pittman’s
failure to respond to Officer Bordallo’s testimony is even more significant in
light of the evidence in dispute. In the absence of any proof to the contrary,
public officers are presumed to have properly discharged the duties of their
offices and to have faithfully performed the duties with which they are
charged.[12] S.C. Nat’l Bank v. Florence Sporting Goods, Inc., 241 S.C. 110, 115-16,
127 S.E.2d 199, 202 (1962); 30 S.C. Jur. Evidence § 29 (2006); see also Felder v. Johnson, 127 S.C. 215, 217, 121 S.E. 54, 54 (1924)
(“In the absence of evidence to the contrary, courts are bound to presume that
public officers have properly discharged their duties and that their acts are
in all respects regular.”). Importantly, the South Carolina Supreme Court has
held that state highway patrol officers and troopers, as well as city police
officers, fall within the common law definition of “public officer.” See State v. Bridgers, 329 S.C. 11, 495 S.E.2d 196 (1997) (state highway
patrol officers and troopers); State v. Crenshaw, 274 S.C. 475, 266
S.E.2d 61 (1980) (city police officers).[13]
As with a prima facie case, the burden of producing evidence to rebut this
presumption rests on the person who asserts unlawful or irregular conduct. 31A
C.J.S. Evidence § 160 (1996). Furthermore, unless the presumption is
rebutted, it becomes conclusive. Id.
Consequently,
it was error for the DMVH hearing officer to rescind Pittman’s suspension on
the grounds that Petitioners failed to sufficiently establish that the correct implied
consent advisement was given to Pittman. 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.
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
May 28, 2008
Columbia, South Carolina
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