SCDL Number: 007851648
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(B)(2) (2006). The Administrative Law Court (“ALC”) has jurisdiction to review this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2005). Upon consideration of the briefs, the DMVH’s Final Order and Decision is reversed.
The license to operate a motor vehicle upon South Carolina’s public highways is not a property right, but is a mere privilege subject to reasonable regulations in the interests of public safety and welfare. Sponar v. S.C. Dep’t of Pub. Safety, 361 S.C. 35, 39, 603 S.E.2d 412, 415 (Ct. App. 2004) (quoting Summersell v. S.C. Dep’t of Pub. Safety, 334 S.C. 357, 366, 513 S.E.2d 619, 624 (Ct. App. 1999), vacated in part on other grounds, 337 S.C. 19, 522 S.E.2d 144 (1999)), cert. granted, (Nov. 17, 2005). Consistent with this principle, S.C. Code Ann. § 56-5-2950(a) (2006) provides in pertinent part:
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.
Section 56-5-2950(a) continues:
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.
Thus, under S.C. Code Ann. § 56-5-2951(A) (2006), the license of a motorist who refuses to submit to the testing required under 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 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) (2006).
On March 25, 2006, Officer Brian Cozene, a Myrtle Beach police officer, arrested the Respondent, Clint A. Pearson (“Pearson”), for driving under the influence (“DUI”). He transported Pearson to the Myrtle Beach Police Department for a breath test. Upon reaching the Myrtle Beach Police Department, Officer Cozene, who is a certified DataMaster operator, reviewed the implied consent form with Pearson. As he did so, he asked Pearson if he was going to submit to a breath test. Pearson refused. Based on this refusal, he issued Pearson a notice of suspension pursuant to Section 56-5-2951(A).
Pursuant to Section 56-5-2951(B)(2), Pearson filed a request for an administrative hearing to challenge the suspension. The DMVH held an administrative hearing on May 2, 2006. At the hearing, Officer Cozene testified that he went through the implied consent form with Pearson. However, he did not specifically testify as to which implied consent advisement he discussed with Pearson, nor did he specifically testify that he gave Pearson a tangible copy of the implied consent form. Although Officer Cozene testified that he had the implied consent form with him at the hearing, he did not offer it into evidence. Pearson did not conduct cross-examination of Officer Cozene. Pearson neither testified at the hearing nor presented any other evidence.
On May 16, 2006, the DMVH Hearing Officer issued a Final Order and Decision rescinding Pearson’s suspension. The DMVH Hearing Officer found that “[t]here was testimony that Officer Cozene read an Implied Consent form to the Respondent; however, there was no evidence corroborating Officer Cozene’s testimony as to the Respondent being given the appropriate Implied Consent Advisement in writing.” The Department now appeals.
ISSUES ON APPEAL
1. Was it error for the DMVH Hearing Officer to rescind Pearson’s suspension based on Officer Cozene’s failure to specify which implied consent advisement was given to Pearson?
2. Was it error for the DMVH Hearing Officer to rescind Pearson’s suspension based on Officer Cozene’s failure to testify that Pearson was advised in writing of his implied consent rights?
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 (amended by 2006 S.C. Act No. 387). 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(A) (amended by 2006 S.C. Act No. 387); 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 to review agency decisions is provided by S.C. Code Ann. §1-23-380(A)(5) (amended by 2006 S.C. Act No. 387). See S.C. Code Ann. § 1-23-380(B) (amended by 2006 S.C. Act No. 387) (directing Administrative Law Judges to conduct a review “in the same manner prescribed in [§1-23-380](A)”). 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) (amended by 2006 S.C. Act No. 387).
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 Resources Conservation Comm’n, 321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996).
Failure to Specify Which Implied Consent Rights Advisement Was Given
The Department argues that Officer Cozene’s failure to specify which implied consent advisement he gave to Pearson does not mandate rescission of Pearson’s suspension. The Department points out that Officer Cozene testified at the hearing that he informed Pearson that he was being arrested for DUI. According to the Department, this testimony, combined with Officer Cozene’s testimony that he went through the implied consent form with Pearson, was sufficient evidence to establish that Pearson was provided the correct implied consent advisement. The court agrees.
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. 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.”); State ex rel. George v. City Council of Aiken, 42 S.C. 222, 241, 20 S.E. 221, 228 (1894) (“It is presumed that public officials will discharge the duties of office in a lawful manner, until the contrary appears.”). South Carolina appellate courts have applied this presumption to law enforcement officers. See, e.g., Steele v. Atkinson, 14 S.C. 154 (1880) (applying presumption to a sheriff). The South Carolina Supreme Court has held that city police officers fall within the common law definition of “public officer.” See State v. Crenshaw, 274 S.C. 475, 266 S.E.2d 61 (1980).
The presumption is rebuttable by affirmative evidence of irregularity or failure to perform duty. Huntley v. Potter, 255 N.C. 619, 122 S.E.2d 681 (1961); see also 31A C.J.S. Evidence § 160 (1996). However, the burden of producing such evidence rests on the person who asserts unlawful or irregular conduct. Maines v. City of Greensboro, 300 N.C. 126, 265 S.E.2d 155 (1980); see also 31A C.J.S. Evidence § 160 (1996). Unless the presumption is rebutted, it becomes conclusive. Binson v. Ga. R.R. Bank & Trust Co., 45 Ga. App. 459, 165 S.E. 321 (1932); see also Metro. Life Ins. Co. v. Goodwin, 92 F.2d 274 (4th Cir. 1937) (“Where facts required to give rise to presumption are proven, presumption must be applied until evidence sufficient to overcome presumption and prove contrary shall have been introduced.”); 31A C.J.S. Evidence § 160 (1996).
The presumption that a police officer properly discharged his duties applies in the present case. Officer Cozene established the essential statutory elements under § 56-5-2950. Absent any proof to the contrary by Pearson, Officer Cozene is presumed by law to have properly discharged those statutory duties and advised Pearson of his DUI implied consent rights, rather than, for example, the implied consent advisement for Felony DUI or Driving with Unlawful Alcohol Concentration. See, e.g., S.C. Code Ann. §§ 56-1-286(I), 56-5-2946 (2006).
Failure to Testify that Implied Consent Rights Advisement Was Given in Writing
The Department next argues that Officer Cozene’s failure to specifically testify that Pearson was advised in writing of his implied consent rights likewise does not warrant rescission of Pearson’s suspension. In support of its argument, the Department cites the recent decision of the Court of Appeals in Taylor v. S.C. Department of Motor Vehicles, 368 S.C. 33, 627 S.E.2d 751 (Ct. App. 2006).
In Taylor, a motorist’s driver’s license was suspended pursuant to Section 56-5-2951(A), the same statute at issue in the case at bar, based on the motorist’s refusal to submit to a blood test after being arrested for driving under the influence. Although the arresting officer read aloud to the motorist a form which set forth the motorist’s implied consent rights, the officer did not provide the motorist with a tangible copy of the form. The motorist subsequently requested a hearing to challenge the suspension. The hearing officer sustained the suspension of the motorist’s license, but the circuit court reversed. On further appeal to the Court of Appeals, the Department argued that the circuit court erred because the motorist did not demonstrate how he was prejudiced by the fact that he did not receive a tangible copy of the form.
The Court of Appeals reversed the circuit court, relying heavily on State v. Huntley, 349 S.C. 1, 5, 562 S.E.2d 472, 474 (2002). The Taylor court interpreted the Huntley decision as follows:
[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.
Pearson has not convinced this court that Taylor is distinguishable from the present case. Taylor, like the instant appeal, involved a situation in which a motorist challenged the administrative suspension of his driver’s license following his refusal to submit to chemical testing based on the fact that the arresting officer orally read him the implied consent advisement rather than providing it in writing. The court therefore finds Taylor to be binding. Accordingly, any argument that a showing of prejudice is not required must be addressed to the Supreme Court.
Here, the record clearly demonstrates that Pearson was orally advised of his implied consent rights. Under Taylor, any failure by Officer Cozene to advise Pearson in writing of these rights does not warrant rescission of Pearson’s suspension, since Pearson has not either argued or proven that he was prejudiced by such failure. In the absence of such showing of prejudice, the DMVH Hearing Officer erred in rescinding Pearson’s suspension based on Officer Cozene’s failure to testify that Pearson was advised in writing of his implied consent rights.
For the foregoing reasons, it is
ORDERED that the DMVH’s Final Order and Decision is REVERSED and the Department’s suspension of Pearson’s driver’s license is reinstated.
IT IS SO ORDERED.
Paige J. Gossett
Administrative Law Judge
December 18, 2006
Columbia, South Carolina