SC Administrative Law Court Decisions

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”) issued May 24, 2007. The DMVH’s Final Order and Decision was issued following an administrative hearing held pursuant to S.C. Code Ann. § 56-1-1090(c) (Supp. 2007). The Administrative Law Court (“ALC”) has jurisdiction to hear this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2007). Upon careful review of this matter,[2] the DMVH’s Final Order and Decision is reversed.

BACKGROUND

On April 14, 2007, Officer John Poston, a police officer for the Charleston Police Department, arrested Lauren Beth Klayman (“Klayman”) for driving under the influence (“DUI”). He transported Klayman to the Charleston Police Department for a breath test. Upon reaching the Charleston Police Department, Officer Poston read the implied consent form to Klayman and provided her a written copy. Officer Poston then asked Klayman if she was going to submit to a breath test; Klayman refused. Officer Poston charged Klayman with DUI.

Pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (2006), Klayman filed a request for an administrative hearing to challenge the suspension. The DMVH held an administrative hearing on May 22, 2007. At the hearing, Officer Poston testified that he reviewed the implied consent form with Klayman and gave her a copy. However, he did not enter into evidence the signed implied consent form he gave to Klayman. Klayman’s attorney did not cross-examine Officer Poston. Klayman did not appear at the hearing, although she was represented by counsel.

On May 24, 2007, the DMVH Hearing Officer issued a Final Order and Decision rescinding Klayman’s suspension. Specifically, the DMVH Hearing Officer stated:

[Officer Poston] did not submit any documents or testimony to show what Implied Consent Advisement was read to Respondent. The officer said that he read the Implied Consent to Respondent. There was no evidence that the Respondent was told of the consequences of the [sic] 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%. Therefore, I conclude that prima facie evidence was not presented to show the Respondent was advised of the DUI Advisement. Without evidence of such, the fairness of the refusal procedure is materially informed decision [sic]. Therefore, I conclude that the Respondent was prejudiced by not receiving his [sic] rights in writing. I conclude that the Officer has not met the burden of proof because the requirements of S.C. Code Ann. § 56-5-2950 were not satisfied.

The Department now appeals.

ISSUES ON APPEAL

1.      Did the DMVH Hearing Officer err in rescinding Klayman’s suspension based on her finding that Officer Poston failed to offer evidence that he had given Klayman the correct implied consent advisement?

2.      Did the DMVH Hearing Officer err in finding that Klayman was prejudiced by not receiving her implied consent rights in writing?

3.      Did the DMVH Hearing Officer err in holding a hearing allowing less than thirty days’ notice?

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). The DMVH is an “agency” under the Administrative Procedures Act (“APA”).[3] See S.C. Code Ann. § 1-23-505(2) (as amended 2008). As such, the APA’s standard of review governs appeals from decisions of the DMVH. See S.C. Code Ann. § 1-23-600(E), -380 (as amended 2008); 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(5) (as amended 2008). See S.C. Code Ann. § 1-23-600(E) (as amended 2008) (directing administrative law judges to conduct appellate review in the same manner prescribed in § 1-23-380). 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(5).

Thus, pursuant to the APA, this court’s review is limited to deciding whether the DMVH’s Final Order and Decision is unsupported by substantial evidence or is affected by an error of law. Bass v. Kenco Group, 366 S.C. 450, 457, 622 S.E.2d 577, 581 (Ct. App. 2005). Substantial evidence is not a mere scintilla of evidence, nor the evidence viewed blindly from one side of the case, but is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion the agency reached in order to justify its action. Hargrove v. Titan Textile Co., 360 S.C. 276, 289, 599 S.E.2d 604, 611 (Ct. App. 2004). The possibility of drawing two inconsistent conclusions from the evidence does not prevent the agency’s findings from being supported by substantial evidence. Id. at 290, 599 S.E.2d at 611. The party challenging an agency’s decision has the burden of proving convincingly that the agency’s decision is unsupported by substantial evidence. Waters v. S.C. Land Res. Conservation Comm’n, 321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996).

DISCUSSION

Section 56-5-2950(a) of the South Carolina Code provides:

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.[4]

S.C. Code Ann. § 56-5-2950(a) (2006). Section 56-5-2950(a) further states that:

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 license of a motorist who refuses to submit to a test conducted pursuant to 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 § 56-5-2950; and (3) refused to submit to a test pursuant to § 56-5-2950. S.C. Code Ann. § 56-5-2951(F) (Supp. 2007).

1. Appropriate Implied Consent

The Department argues that the DMVH Hearing Officer erred in rescinding Klayman’s suspension based on her finding that Officer Poston did not present evidence specifically as to what implied consent advisement he provided to Klayman. The court agrees.

Rescission of Klayman’s suspension was not warranted simply because Officer Poston failed to testify which implied consent advisement form he read to, and handed to, Klayman. The South Carolina Court of Appeals has held that the

requirements for suspension for refusal to consent are: (1) a person (2) operating a motor vehicle (3) in South Carolina (4) be arrested for an offense arising out of acts alleged to have been committed while the person was driving under the influence of alcohol, drugs, or both, and (5) refuse to submit to alcohol or drug testing.

S.C. Dep’t of Motor Vehicles v. Nelson, 364 S.C. 514, 523, 613 S.E.2d 544, 549 (Ct. App. 2005) (citing S.C. Code Ann. §§ 56-5-2950 and -2951). Notably, the Court of Appeals did not include the provision of the implied consent rights enumerated in S.C. Code Ann. § 56-5-2950 as a required element that must be affirmatively proven to enforce a suspension in a refusal case. Thus, once the Department establishes a prima facie case by introducing evidence as to the five elements listed in Nelson,[5] the burden of production shifts to the motorist to present evidence, by cross-examination or otherwise, that supports one or more of the statutory defenses permitted by S.C. Code Ann. § 56-5-2951(F). See Browning v. Browning, 366 S.C. 255, 262, 621 S.E.2d 389, 392 (Ct. App. 2005) (recognizing that once a party establishes a prima facie case, the burden of production shifts to the opposing party).

This conclusion is further supported by the case of State v. Cuccia, 353 S.C. 430, 578 S.E.2d 45 (Ct. App. 2003). In Cuccia, the Court of Appeals examined the question of whether a criminal prosecution for DUI following the administrative suspension of a driver’s license violated the constitutional prohibitions against double jeopardy. The DUI statutes at issue in Cuccia were S.C. Code Ann. § 56-1-286, which requires suspension of a license of a motorist under the age of twenty-one who refuses to submit to chemical testing, and § 56-1-2930, the general DUI statute. To decide the double jeopardy issue, the Cuccia court compared the elements required for an administrative suspension with the requisite elements to prove the crime of DUI. Consistent with Nelson where it listed the essential elements for suspension of a license under §§ 56-5-2950 and -2951, the Court of Appeals in Cuccia did not include the provision of implied consent rights as an essential element of a statutory case for suspension under § 56-1-286.[6] Cuccia, 353 S.C. at 438-39, 578 S.E.2d at 50.

Both Nelson and Cuccia indicate that the required elements to establish a prima facie case of suspension for refusal to consent to testing are not coextensive with the items listed by the General Assembly as being properly within the scope of the administrative hearing. See S.C. Code Ann. § 56-5-2951(F); S.C. Code Ann. § 56-1-286(O); but cf. Summersell v. S.C. Dep’t of Pub. Safety, 334 S.C. 357, 369, 513 S.E.2d 619, 625 (Ct. App.) (addressing a previous version of § 56-5-2950 and suggesting that the Department must affirmatively prove all of the “scope of the hearing” issues as part of its case in chief), vacated in part on other grounds, 337 S.C. 19, 522 S.E.2d 144 (1999). The conclusion that they are not equivalent is also supported by the statutory language itself. Section 56-5-2950(a) provides that “[n]o tests may be administered or samples obtained unless the person has been informed in writing” of the five enumerated implied consent rights. § 56-5-2950(a)(1)-(5) (emphasis added). It does not, however, expressly prohibit the Department from suspending the motorist’s license if the implied consent rights are not provided. To the contrary, § 56-5-2951(A) provides that the Department “must suspend the driver’s license . . . of . . . a person who drives a motor vehicle and refuses to submit to a test . . . .” § 56-5-2951(A) (emphasis added).

Thus, the statutes, read together, indicate that the legislature intended the implied consent advisement to be a prerequisite to testing, not to suspension. Our appellate courts have implicitly recognized this by their treatment of the statutory implied consent advisement as a safeguard against forced or unfair testing. See Nelson, 364 S.C. at 522, 613 S.E.2d at 548 (noting that the implied consent statute strikes “a balance” by allowing law enforcement officers “to test and prosecute suspected drunk drivers while protecting individuals from such tests, should they choose to refuse them”) (emphasis added); City of Florence v. Jordan, 362 S.C. 227, 233, 607 S.E.2d 86, 90 (Ct. App. 2004) (stating that “the clear policy objectives” underlying the implied consent statute are “to ensure suspects are informed of their rights to refuse any test and, if consent is obtained, to ensure the tests are conducted in an accurate, reliable, and fair manner”) (emphasis added).

Accordingly, the statutory framework suggests that the failure to provide the appropriate implied consent advisement is a defense to suspension, and that the provision of these rights is not an essential element to enforce a suspension. Rather than making the provision of the implied consent rights an essential element to enforce a suspension, the legislature provided a procedure for the motorist to challenge the statutorily required suspension by contesting the validity of his refusal in an administrative hearing, the scope of which may include, if raised by the motorist, whether he was “advised in writing of the rights enumerated in Section 56-5-2950.”[7] See S.C. Code Ann. § 56-5-2951(F)(2). However, although the burden of production shifts to the motorist to introduce evidence challenging the element of refusal, the burden of persuasion remains on the Department, once the motorist has done so, to convince the Hearing Officer by a preponderance of the evidence that the refusal was valid because the implied consent rights were properly provided.[8]

The court therefore concludes that once the Department establishes a prima facie case of suspension for refusal under § 56-5-2950 by presenting evidence as to each of the statutory elements as defined in Nelson, the burden of going forward shifts to the motorist. See S.C. Dep’t of Motor Vehicles v. Powers, 06-ALJ-21-0578-AP, 2007 WL 268784 (Admin. Law Ct., Jan. 10, 2007). Under § 56-5-2951(F), a challenge to the validity of the refusal may include evidence, by cross-examination or otherwise, that the law enforcement officer failed to fully or properly advise the motorist of the implied consent rights enumerated in § 56-5-2950. Adjudication of this defense is properly within the scope of the hearing under § 56-5-2951(F).

In this case, Klayman offered no evidence whatsoever tending to prove that Officer Poston provided her the incorrect set of implied consent rights.[9] Moreover, Klayman introduced no evidence that Officer Poston’s provision of her implied consent rights was incomplete. Accordingly, the record does not contain substantial evidence to support a conclusion that she was not provided the appropriate implied consent advisement, particularly in the face of Officer Poston’s undisputed testimony that he provided Klayman a copy in writing. Because there was no evidence that Officer Poston read the wrong advisement, it was error for the Hearing Officer to rescind Klayman’s suspension on that basis.[10]

2. Writing

The Hearing Officer’s finding that Klayman was “prejudiced by not receiving his [sic] rights in writing” is also unsupported by substantial evidence. First, the DMVH Hearing Officer specifically made the factual finding that Officer Poston “supplied Respondent a copy to read along with.” This flatly contradicts her conclusion that Klayman was prejudiced by not receiving her implied consent rights in writing. Furthermore, rescission of Klayman’s suspension was not warranted simply because Officer Poston failed to offer into evidence the signed implied consent form.[11] Officer Poston’s testimony that he provided Klayman with a copy of the implied consent advisement form was uncontradicted, and he was not cross-examined on this issue. 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.”); see also Mackey v. Montrym, 443 U.S. 1, 14 (1979) (noting that, in a case involving Massachusetts’s implied consent law, because law enforcement officers are personally subject to criminal penalties for willful misrepresentation of the facts, they have “every incentive to ascertain accurately and truthfully report the facts”); Cheatham v. Gregory, 227 Va. 1, 4, 313 S.E.2d 368, 370 (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 . . .”); Hankerson v. Moody, 229 Va. 270, 274-75, 329 S.E.2d 791, 794 (1985) (“A court may not base its findings on a suspicion which is contrary to undisputed positive testimony.”). Moreover, as noted above, the standard of proof in administrative proceedings such as the one held below is simply a preponderance of the evidence. See Anonymous (M-156-90) v. State Bd. of Med. Exam’rs, 329 S.C. 371, 375, 496 S.E.2d 17, 19 (1998) (holding that, absent an allegation of fraud or a statute or a court rule requiring a higher standard, the standard of proof in administrative hearings is generally a preponderance of the evidence). For these reasons, Officer Poston’s uncontroverted testimony alone was sufficient to establish that he advised Klayman of her implied consent rights in writing.

Finally, even if there were substantial evidence supporting a finding that Officer Poston did not provide Klayman with her implied consent rights in writing, the decision by the South Carolina Court of Appeals in Taylor v. S.C. Department of Motor Vehicles, 368 S.C. 33, 627 S.E.2d 751 (Ct. App. 2006), requires that the motorist allege and prove that she was prejudiced by the officer’s failure to provide those rights in writing. Taylor, 368 S.C. at 38, 627 S.E.2d at 754. Klayman made no allegation of prejudice and offered no evidence establishing any prejudice. Accordingly, under Taylor, the DMVH Hearing Officer erred in rescinding her suspension on that basis.

3. Thirty Days’ Notice

The Department argues that the DMVH Hearing Officer erred in holding a hearing allowing less than thirty days’ notice in violation of S.C. Code Ann. § 1-23-320(a). This argument was not presented to the DMVH Hearing Officer and is not properly preserved for review. Kiawah Resort Assocs. v. S.C. Tax Comm’n, 318 S.C. 502, 505, 458 S.E.2d 542, 544 (1995) (holding that issues that are neither raised to, nor ruled upon by, the administrative agency are not preserved for appellate review).

ORDER

For the foregoing reasons, it is

ORDERED that the DMVH’s Final Order and Decision is REVERSED and the Department’s suspension of Klayman’s driver’s license is reinstated.

IT IS SO ORDERED.

______________________________

Paige J. Gossett

Administrative Law Judge

June 20, 2008

Columbia, South Carolina