This
matter is an appeal by the South Carolina Department of Motor Vehicles
(Department) from an Order of Dismissal of the South Carolina Division of Motor
Vehicle Hearings (DMVH). The DMVH’s Order of Dismissal was issued in
connection with an administrative hearing that it held pursuant to S.C. Code
Ann. § 56-5-2951(B)(2) (2006). The Administrative Law Court (ALC) has
jurisdiction to hear this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp.
2005). Upon consideration of the briefs, this case is dismissed as set forth
below.
“In South Carolina,
operating a motor vehicle is a privilege of the State, not a right of the
individual.” Taylor v. South Carolina Dept. of Motor Vehicles,
368 S.C. 33, 36, 627 S.E.2d 751, 753 (Ct. App. 2006). Consistent with this
principle, S.C. Code Ann. § 56-5-2950(a) (2006) provides that:
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.
Under S.C. Code Ann. § 56-5-2951(A)
(2006), the license of a motorist who refuses to submit to the above test or
who registers an alcohol concentration of 0.15% or more on such test must be immediately
suspended. However, under Section 56-5-2951(B)(2), the motorist may request an
administrative hearing to challenge such a suspension.
Prior
to January 1, 2006, the Department’s Office of Administrative Hearings (OAH) was
intricately involved in the adjudication, as well as the prosecution, of
matters relating to the suspension of a motorist’s driver’s license under
Section 56-5-2951. For instance, OAH hearing officers conducted hearings
relating to these matters, and OAH staff members notified law enforcement of
such hearings. However, in the summer of 2005, S.C. Code Ann. § 1-23-660 was
extensively amended by Act No. 128, § 22, 2005 S.C. Acts 1503. Pursuant to Act
No. 128, the DMVH was created as a division of the ALC and, as of January 1,
2006, “the duties, functions, and responsibilities of all hearing officers and
associated staff” of the Department were transferred to the DMVH. See S.C. Code Ann. § 1-23-660 (Supp. 2005). Importantly, the amended Section
1-23-660 requires DMVH hearing officers to conduct their hearings in accordance
with the Administrative Procedures Act (APA) and the ALC’s rules of procedure. Id.
Respondent
was arrested for driving a motor vehicle while under the influence of alcohol.
Respondent was issued a written Notice of Suspension based on his refusal to
submit to a breath test as required under Section 56-5-2950(a). Pursuant to Section
56-5-2951(B)(2), Respondent filed a request for an administrative hearing to
challenge the suspension. The DMVH issued a Notice of Hearing, which stated
that Respondent’s hearing would be held on January 31,
2006, at the Myrtle Beach Magistrates Office, Myrtle Beach , S.C. Both the Department and Respondent were served with copies of
this Notice of Hearing. The DMVH hearing officer held the hearing, as
scheduled, on January 31, 2006. Because
neither the Department, nor the arresting officer, attended the hearing, the
DMVH hearing officer entered an Order of Dismissal against the Department
pursuant to ALC Rule 23.
1. Does the caption accurately reflect the nature of this action?
2. Did the Department of Motor Vehicle Hearings wrongfully fail to notify
law enforcement of the hearing?
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, 466 S.E.2d 357 (1996), citing Kearse v. State
Health and Human Services Finance Comm'n, 318 S.C. 198, 456 S.E.2d 892
(1995). Furthermore, the reviewing court is prohibited from substituting its
judgment for that of the agency as to the weight of the evidence on questions
of fact. Grant v. South Carolina Coastal Council, 319 S.C. 348, 461
S.E.2d 388 (1995), citing Gibson v. Florence Country Club, 282
S.C. 384, 318 S.E.2d 365 (1984). Finally, the party challenging an agency
action has the burden of proving convincingly that the agency's decision is
unsupported by substantial evidence. Waters, supra, citing Hamm v. AT&T, 302 S.C. 210, 394 S.E.2d 842 (1994).
DISCUSSION
Amended
Caption
The
Department argues that the hearing officer incorrectly listed the Department as
the “Petitioner” in the caption of his order. The Department argues that,
since the motorist requested the administrative hearing, the motorist is the
“Petitioner.” Notably, this issue is fundamentally tied to the question of
which party bears the burden of proof in this case. In enforcement actions, to
clarify that the burden of proof lies with the agency, the caption is drafted
to reflect that the agency is the “Petitioner” and the party subject to the
enforcement is the “Respondent,” despite the fact that it was not the agency
that filed the request for a contested case hearing. See Randy R.
Lowell and Stephen P. Bates, South Carolina Administrative Practice
and Procedure 201 (2004). Thus, if the burden of proof in this case lies
with the Department, then it was proper for the hearing officer to list the
Department as the “Petitioner” in the caption of his order.
Interestingly,
in its Notice of Appeal, the Department claimed that the motorist, and not the
Department, bore the burden of proof in this case. However, in its brief, the
Department dropped this claim, and simply argued that the caption should be
amended to reflect the proper standing of the parties. Nevertheless, the
caption issue cannot be resolved without first determining which party bears
the burden of proof in this case.
Generally
speaking, South Carolina law requires that the party that maintains “the
affirmative of the issue” bear the burden of proof. See Carter v. Columbia and Greenville R.R. Co., 1883 WL 4856, at * 6 (S.C. 1883). It could be argued
that, because Section 56-5-2951(A) mandates that the Department automatically suspend a motorist’s driver’s license when the motorist either refuses to
submit to a blood, breath or urine test or has an alcohol concentration of more
than 0.15%, the motorist is, in actuality, the party “maintaining the
affirmative of the issue” and, therefore, the burden of proof should be on the
motorist. Some state courts have come to such a conclusion. For instance, in Jess
v. State, Dept. of Justice, Motor Vehicle Div., 841 P.2d 1137 (Mont. 1992) overruled
on other grounds by Bush v. Mont. Dept. of Justice, Motor Vehicle Div.,
968 P.2d 716 (Mont. 1998), the Montana Supreme Court held in an action for
reinstatement of a summarily suspended driver's license pursuant to Montana’s
implied consent law, that the burden was on the petitioning motorist to prove
that the suspension of the license was invalid.
In Jess, the statute providing for the review of suspended driver's
licenses did not state who had the burden of proof. Nevertheless, the Court
recognized that under Montana’s implied consent law there was a presumption of
correctness to the state’s action of suspension or revocation of a driver's
license until otherwise shown to be improper. Therefore, the Court held that
the “burden of proof falls upon the appellant to prove the invalidity of the State's
action, rather than require the State to justify its act of revocation.” 841
P.2d at 1140.
However,
in South Carolina there is no such presumption. In fact, S.C. Code Ann.
§56-5-2950 (e) (2006) sets forth that if an officer fails to follow the policies,
procedures, or regulations promulgated by SLED, the result of any tests shall
be excluded if the “hearing officer finds that such failure materially affected
the accuracy or reliability of the tests results or the fairness of the testing
procedure.”
Additionally,
in People v. Orth, 530 N.E.2d 210 (1988), the Illinois Supreme Court
considered whether placing the burden of proof upon the motorist whose license
was summarily suspended violated due process of law. In making its
determination, the Court considered:
(1) the significance of the private interest which will be
affected by the official action, (2) the risk of the erroneous deprivation of
such interest through the procedures used, and probable value, if any, of
additional or substitute procedural safeguards, and (3) the significance of the
State interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural safeguards
would entail.
530 N.E.2d at 214. After
considering those factors, the Court held that placing the burden of proof upon
the suspended motorist did not violate his due process rights. Id. In reaching its decision, the Orth Court held that “however, our
conclusion is heavily influenced by our holding later in this opinion that the
State will have the burden of showing the reliability of test results if the
motorist first makes a prima facie showing that the results were unreliable.” See
also People v. Ullrich, 767 N.E.2d 411 (Ill. App. Ct. 2002).
To
the contrary, the ALC has consistently held that, in enforcement actions, the
agency is the moving party, and, therefore, the agency bears the burden of
proof. In fact, to clarify that state agencies bear the burden of proof in
enforcement actions, the ALC amended its rules of procedure in 1998 to add ALC
Rule 29(B), which states: “In matters involving the assessment of civil
penalties, the imposition of sanctions, or the enforcement of administrative
orders, the agency shall have the burden of proof.” (emphasis added.)
Thus, because the Department is actively seeking to enforce its suspension
order pursuant Section 2951(A), it should bear the burden of proof.
Furthermore, the Montana and Illinois Supreme Courts notwithstanding, most state courts, in similar
situations, have concluded that the burden of proof should be placed on the
state agency that suspends the license. For instance, in Joyner v. Garrett,
182 S.E.2d 553 (N.C. 1971), Joyner refused to take a Breathalyzer test after
being arrested for operating a motor vehicle on a public highway while under
the influence of an intoxicant. Afterwards, the Department of Motor Vehicles notified
Joyner that his driving privilege was to be immediately revoked for sixty days
unless he requested an administrative hearing within three days. Upon Joyner’s
request, an administrative hearing was held and the hearing officer affirmed
the suspension. In a de novo hearing, the Superior Court, in confirming the
hearing officer’s decision, found that the burden of proof was on Joyner. On
appeal, the North Carolina Supreme Court held that the Department of Motor
Vehicles had the burden of proof at the administrative hearing, and that it also
had the burden of proof at the de novo hearing in the Superior Court. Id.
Other cases that
contain similar holdings include Harris v. Tex. Dep’t of Pub. Safety,
2005 WL 3359729 (Tex. App. 2005) (“To uphold a license suspension [pursuant to Texas’ implied consent law], an ALJ must find that [the Department of Public Safety] has
proven all elements of section 724.042 by a preponderance of the evidence.”); Spinner v. Dir. of Revenue, 165
S.W.3d 228 (Mo. Ct. App. 2005) (The burden of proof was on the Missouri Director
of Revenue to establish grounds for the suspension or revocation of driving
privileges); Willis v. State, 701 P.2d 10, 11 (Ariz. Ct. App. 1985) (in
a proceeding involving an automatic driver’s license suspension for refusal to
submit to a breath test in violation of Arizona’s implied consent law, the
burden of proof was on the State); Ex parte Boykin, 643 So.2d 986, 987
(Ala. 1993) (in a proceeding involving a summary driver’s license suspension
for refusal to submit to a chemical test pursuant to Alabama’s implied consent
statute, the Alabama Supreme Court concluded that “the Department failed to
carry its burden of proof”); Sipes v. State ex rel. Dep’t of Pub. Safety,
950 P.2d 881 (Okla. Ct. App. 1997) (in a proceeding involving a driver’s
license suspension for refusal to submit to a chemical test in violation of Oklahoma’s
implied consent statute, the Oklahoma court held that the district court may review
the evidence “to decide whether [the Department of Public Safety] has in fact met
its threshold burden of proof”); Browning v. State ex rel. Dep’t of Pub.
Safety, 812 P.2d 1372 (Okla. Ct. App. 1991) (the Oklahoma Department of
Public Safety must prove compliance with the testing procedures used in the administration
of a breath test); Coombs v. Pierce, 2 Cal. Rptr. 2d 249 (1991) (California
DMV bore the burden of proof at an administrative proceeding to establish the
validity of breath test results); Cole v. Driver and Motor Vehicles Services
Branch, 87 P.3d 1120, 1131 (Or. 2004) (in a proceeding involving a summary
driver’s license suspension for driving with a blood alcohol concentration
above the legal limit, the Oregon Supreme Court held that the DMV bore the
burden of proof); Montpetit v. Comm’r of Pub. Safety, 392 N.W.2d 663,
667 (Minn. Ct. App. 1986) (the Minnesota Commissioner of Public Safety bore the
burden of proof in a proceeding involving a driver’s license suspension for
driving with a blood alcohol concentration above the legal limit).
Finally,
there are several policy reasons for placing the burden of proof on the
Department, and not the motorist. First, by placing the burden of proof on the
Department, the risk of erroneous suspension of the driver’s license is
lessened. See Orth, 530 N.E.2d at 214-15. Second, driver’s
licenses are quite important to individuals and, therefore, the process of
taking away a driver’s license should not be taken lightly. For instance, in Bell v. Burson, 402 U.S. 535, 539 (1971), the United States Supreme Court
explained:
Once licenses are issued . . . their
continued possession may become essential in the pursuit of a livelihood.
Suspension of issued licenses thus involves state action that adjudicates
important interests of the licensees. In such cases the licenses are not to be
taken away without that procedural due process required by the Fourteenth
Amendment.
Similarly, in Berlinghieri
v. Dep’t of Motor Vehicles, 657 P.2d 383, 387-88 (Cal. 1983), the
California Supreme Court described in detail the practical importance of a
driver's license:
In our present travel-oriented society,
the retention of a driver's license is an important right to every person who
has obtained such a license.... [T]he reality of contemporary society is that
public transportation systems may not meet the needs of many travelers and
other forms of transportation, such as taxicabs, are not economically feasible
for a large portion of the population. Whether a driver's license is required
only for delivering bread, commuting to work, transporting children or the
elderly, meeting medical appointments, attending social or political functions,
or any combination of these or other purposes, the revocation or suspension of
that license, even for a six-month period, can and often does constitute a
severe personal and economic hardship.
Third, it simply
seems that the more just approach would be to require the State of South Carolina to establish the elements of a violation rather than to compel the motorist
to prove his innocence or risk suspension of his driver’s license. See Peabody
Coal Co. v. Ralston, 578 N.E.2d 751, 754 (Ind. Ct. App. 1991) (“Similar to
the rationale for affixing the ultimate burden of proof on the state in
criminal matters, it would be a fundamentally unfair procedure to shift the
burden of persuasion to one charged with a violation to prove his innocence.”).
Notably in this regard, it could be very difficult for a motorist to prove
certain Section 56-5-2951(F) elements, such as that the machine used to conduct
the blood, breath or urine test was working improperly.
For these reasons, I
find that the burden of proof should be placed on the Department in cases
involving summary driver’s license suspensions pursuant to Section
56-5-2951(A). Therefore, because I find that the Department bore the burden of
proof in this case, it was not error for the DMVH hearing officer to list the
Department as the “Petitioner” in the caption of his order.
Notification
of Law Enforcement
A hearing was held
before a DMVH hearing officer on January 31, 2006. However, neither the Department
nor the arresting officer attended the DMVH hearing. Moreover, the DMVH
was not informed that the arresting officer would not be appearing.
The Department argues that neither it nor the arresting officer was properly
notified of the hearing. However, the Department (and not the DMVH)
scheduled the time and date of the hearing, and prepared and sent out the
Notice of Hearing. Notably, the Notice of Hearing was sent from the
Department to Charles Anthony Fowler and is dated December 21, 2005 (prior to
the date that the duties of the Department’s hearing officers were transferred
to the DMVH). Moreover, it appears that a copy of the Notice of Hearing
was faxed to the arresting officer, Daniel J. Toney on January 4, 2006.
Additionally, “[o]ne cannot complain of a due process violation if he has
recourse to a constitutionally sufficient administrative procedure but merely
declines or fails to take advantage of it.’ Zaman v. S.C. State Bd. of Medical Examiners, 305 S.C. 281, 408 S.E.2d 213, 215 (1991).
Furthermore, to prove the denial of due process, a party must show that it has
been substantially prejudiced by the administrative process. Palmetto
Alliance, Inc. v. S. C. Public Service Comm’n., 282 S.C. 430, 319 S.E.2d 695
(1984). Here, the Department scheduled the hearing and notified the
officer of the hearing. If there was any deficiency in the notice is was
the responsibility of the Department. Moreover, the Department should
have appeared at the hearing and presented its concerns if it had
objections. Thus, for the Department to now argue that neither it nor the
arresting officer was properly notified of the January 31st hearing,
and that the Notice of Hearing was deficient in certain respects, is simply
groundless.
Having found that the department’s claims that the arresting officer was not
notified are groundless and that any deficiency in the Notice of Hearing was
due to the own Department’s error, I find it is not necessary to address its
claim that DMVH has a duty to notify the arresting officer of the hearing
scheduled before its hearing officer. Therefore, this
case must be dismissed.
ORDER
IT IS THEREFORE
ORDERED that this case is DISMISSED.
AND IT IS SO ORDERED.
______________________________
Ralph
King Anderson, III
Administrative
Law Judge
June 20, 2006
Columbia, South Carolina