ORDERS:
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 Office of Motor Vehicle Hearings (“OMVH”) issued on May 11, 2007. The Department argues that the OMVH hearing officer erred by rescinding the administrative suspension of Respondent’s driver’s license under S.C. Code Ann. § 56-5-2951(A) (2006) based solely upon Petitioners’ failure to show precisely which implied consent advisement was given to Respondent. The Administrative Law Court (“ALC”) has jurisdiction to review this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2008). Upon consideration of this matter, the OMVH’s Final Order and Decision is reversed.
BACKGROUND
Near midnight on April 1, 2007, Officer Burbage of the Mount Pleasant Police Department arrested Respondent for driving under the influence (“DUI”) and transported him to the Mt. Pleasant Police Department. Upon arriving there, Officer Burbage directed Officer Evensen to administer a DataMaster test to Respondent. Respondent subsequently refused to submit to the DataMaster test. As a result of his refusal, Respondent’s driver’s license was suspended pursuant to Section 56-5-2951(A).
Thereafter, Respondent requested an administrative hearing to challenge his suspension. The hearing was held on May 7, 2007 before an OMVH hearing officer. At the hearing, Officer Evensen testified that he advised Respondent of “his implied consent rights.” However, Officer Evensen did not specify which implied consent advisement he gave to Respondent, and no implied consent advisement form was introduced into evidence. Respondent did not testify at the hearing.
On May 11, 2007, the OMVH hearing officer issued a Final Order and Decision rescinding the suspension of Respondent’s driver’s license. Specifically, she stated in pertinent part:
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 affected.
The Department now appeals.
ISSUE ON APPEAL
Did the OMVH hearing officer err by rescinding Respondent’s suspension on the grounds that Petitioners failed to offer evidence to show that the correct implied consent advisement was given to Respondent?
STANDARD OF REVIEW
The OMVH is authorized by law to determine contested cases arising from the Department. See S.C. Code Ann. § 1-23-660 (Supp. 2008). Therefore, the OMVH is an “agency” under the Administrative Procedures Act (“APA”). See S.C. Code Ann. § 1-23-505(2) (Supp. 2008). As such, the APA’s standard of review governs appeals from decisions of the OMVH. See S.C. Code Ann. § 1-23-380 (Supp. 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) (Supp. 2008). See S.C. Code Ann. § 1-23-600(E) (Supp. 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) (Supp. 2008).
Thus, pursuant to the APA, this court’s review is limited to deciding whether the OMVH’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 Resources Conservation Comm’n, 321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996).
DISCUSSION
South Carolina’s Implied Consent Laws
The license to operate a motor vehicle upon the public highways of this State is not a property right, but a mere privilege that is subject to reasonable regulations in the interests of public safety and welfare. S.C. State Hwy. Dep’t v. Harbin, 226 S.C. 585, 595, 86 S.E.2d 466, 470 (1955); 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. Harbin, 226 S.C. at 595, 86 S.E.2d at 470; Sponar v. S.C. Dep’t of Pub. Safety, 361 S.C. 35, 39, 603 S.E.2d 412, 415 (Ct. App. 2004). However, it cannot be revoked arbitrarily or capriciously. Harbin, 226 S.C. at 595, 86 S.E.2d at 466.
Consistent with these principles, the General Assembly enacted S.C. Code Ann. § 56-5-2950 (2006) and S.C. Code Ann. § 56-5-2951 (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). 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). Under the law in force at the time of Respondent’s arrest, if such a hearing was requested, the scope of the hearing was to 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); S.C. Dep’t of Motor Vehicles v. Nelson, 364 S.C. 514, 526, 613 S.E.2d 544, 550 (Ct. App. 2005).
Petitioners’ Failure to Show the Precise Implied
Consent Advisement Given to Respondent
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 Advisement; and (8) Shooting Under the Influence Advisement. SLED Implied Consent Policy 8.12.5(D). Of these eight different advisements, it is the DUI Advisement that sets forth the rights enumerated in Section 56-5-2950. See Ronnie M. Cole & James B. Huff, Handling Traffic Cases in South Carolina 341 (Candice Koopman Lockman ed., 4th ed. 2005) (setting forth copy of DUI Advisement).
In this case, the Department argues that the OMVH hearing officer erred by rescinding Respondent’s suspension on the grounds that Petitioners failed to show which implied consent advisement was given to Respondent. The court agrees.
At the hearing, Officer Evensen testified that he advised Respondent of “his implied consent rights.” Additionally, Officer Evensen testified that he was certified to administer DataMaster tests. Respondent neither argued nor presented any evidence to show that he received the wrong advisement. In fact, at no point during the hearing did Respondent claim that Petitioners failed to adequately demonstrate that he received the correct advisement.
For several reasons, the court concludes that the OMVH hearing officer erred by rescinding Respondent’s suspension on the grounds that she did. First, although law enforcement’s compliance with Section 56-5-2950 is one of the issues that OMVH hearing officers may consider in rendering their decisions, compliance with Section 56-5-2950 is not one of the elements of the State’s prima facie case. See S.C. Dep’t of Motor Vehicles v. Nelson, 364 S.C. 514, 523, 613 S.E.2d 544, 549 (Ct. App. 2005) (setting forth the requirements for an administrative suspension for refusal to consent to breath testing). Thus, unless a motorist specifically raises the issue of law enforcement’s compliance with Section 56-5-2950, nothing can be inferred from the State’s failure to present evidence on the issue. Here, as noted above, Respondent never argued that he received the wrong advisement.
Second, even if Petitioners had been required to prove compliance with Section 56-5-2950 as part of its prima facie case, Officer Evensen’s testimony constituted prima facie evidence that he gave Respondent the correct implied consent advisement. In State v. Parker, 271 S.C. 159, 245 S.E.2d 904 (1978), the South Carolina Supreme Court held 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. Id. at 163-64, 245 S.E.2d at 906. As SLED policy makes clear, one portion of the DataMaster test administration process is the provision of the implied consent advisement. See SLED Implied Consent Policy 8.12.5(C)(1). Therefore, the OMVH hearing officer erred by concluding that Petitioners failed to present prima facie evidence to show that Respondent was given the proper implied consent advisement.
Moreover, because there is nothing in the record that shows that Respondent received the wrong implied consent advisement, the fact that Officer Evensen did not specifically testify as to the name of the advisement given to Respondent did not mandate the rescission of Respondent’s suspension. Once the State establishes a prima facie case (as it did here), it is entitled to judgment unless the motorist presents evidence that rebuts the State’s case. Cf. Moffitt v. Commonwealth, 434 S.E.2d 684, 687 (Va. Ct. App. 1993) (holding, with respect to a habitual offender proceeding, that “[o]nce 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”). Additionally, it is well settled that “[i]n 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.” Felder v. Johnson, 127 S.C. 215, 217, 121 S.E. 54, 54 (1924); see also S.C. Dep’t of Motor Vehicles v. Galloway, Op. No. 2009-UP-063 (S.C. Ct. App. filed February 3, 2009) (unpublished decision) (applying Felder presumption in a case similar to the present case). Here, Officer Evensen’s testimony that he advised Respondent of his implied consent rights must be construed as meaning that he gave Respondent the correct advisement, since there is nothing in the record that supports an opposite conclusion.
Finally, our Court of Appeals has held that a violation of Section 56-5-2950 will not lead to the rescission of an administrative suspension absent prejudice to the motorist. See Taylor v. S.C. Dep’t of Motor Vehicles, 368 S.C. 33, 36, 627 S.E.2d 751, 753 (Ct. App. 2006), aff’d, Op. No. 26637 (S.C. Sup. Ct. filed Apr. 20, 2009) (Shearouse Adv. Sh. No. 17). In this case, the OMVH hearing officer found that the fairness of the refusal procedure was materially affected by the lack of evidence concerning the particular implied consent advisement given to Respondent. That finding, however, has two critical flaws. First, it assumes that the wrong advisement was given to Respondent. As discussed above, such an assumption cannot validly be made based upon the existing record. Second, even assuming arguendo that Respondent received the wrong advisement, the hearing officer’s finding of prejudice is nonetheless unsupported by substantial evidence. The record clearly demonstrates that Respondent exercised both his right to refuse testing and his right to request an administrative hearing. Additionally, the record also shows that Respondent was advised of his right to have a qualified person of his own choosing conduct an additional independent test. Therefore, 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 Respondent’s decision to refuse. However, Respondent did not testify at the hearing about how he reached his decision to refuse testing. Moreover, prejudice cannot simply be assumed in this case. The court notes that 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. Although nothing in the record indicates that Respondent received the Zero Tolerance Advisement, if the evidence is insufficient to show that Respondent received the DUI Advisement, then it is also insufficient to rule out the possibility that Respondent received the Zero Tolerance Advisement. Accordingly, the OMVH hearing officer erred by finding prejudice in this case.
ORDER
For the reasons discussed above, it is hereby ORDERED that the OMVH’s Final Order and Decision is REVERSED.
AND IT IS SO ORDERED.
______________________________
Carolyn C. Matthews
Administrative Law Judge
June 3, 2009
Columbia, South Carolina
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