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 Department claims that the DMVH
erroneously rescinded the driver’s license suspension of Respondent Chuck Ryan
Faulkenberry (“Faulkenberry”). The Administrative Law Court (“ALC” or “Court”)
has jurisdiction to hear this matter pursuant to S.C. Code Ann. § 1-23-660
(Supp. 2006). Upon consideration of the briefs, the DMVH’s Final Order and
Decision is reversed as set forth below.
On Saturday, May 13, 2006, at approximately 1:00 a.m., Officer
Richard Howard (“Officer Howard”) of the South Carolina Highway Patrol was
dispatched to a traffic accident in Lancaster County. Upon arriving at the
scene of the accident, he observed that several mail boxes were knocked down
and that Faulkenberry’s vehicle was in a ditch. Officer Howard began speaking
with Faulkenberry. He noticed that Faulkenberry smelled of alcohol. He asked
Faulkenberry how much he had to drink. Faulkenberry stated that he had
consumed two beers at a club. Officer Howard asked Faulkenberry to perform several
field sobriety tests. Based on Faulkenberry’s performance on the tests, Officer
Howard deemed that Faulkenberry was under the influence. Officer Howard arrested
Faulkenberry for driving under the influence (“DUI”) and transported him to the
Lancaster County Detention Center for a DataMaster test. Faulkenberry was
subsequently issued a Notice of Suspension pursuant to S.C. Code Ann. §
56-5-2951(A) (2006) for refusing to submit to chemical testing.
pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (2006), Faulkenberry filed a
request for an administrative hearing to challenge the suspension. An administrative
hearing was held on June 20, 2006 before a DMVH hearing officer. At the
hearing, Officer Howard testified that he read Faulkenberry “the implied
consent” and that he handed Faulkenberry a copy of it. However, Officer Howard
did not specifically testify as to which “implied consent” was given to
Faulkenberry. Faulkenberry did not cross-examine Officer Howard regarding the
implied consent advisement, and did not introduce any evidence at the hearing.
19, 2006, the DMVH hearing officer issued a Final Order and Decision in which
he found that: (i) Faulkenberry’s arrest was lawful; (ii) Faulkenberry was given
an implied consent advisement; and (iii) Faulkenberry refused the DataMaster
test. Nevertheless, the hearing officer rescinded Faulkenberry’s suspension on
the grounds that the Department failed to offer evidence to show that the correct implied consent advisement was given to Faulkenberry. The Department now
the DMVH hearing officer err by rescinding Faulkenberry’s suspension on the
grounds that the Department failed to offer evidence to show that the correct
implied consent advisement was given to Faulkenberry?
the DMVH’s Final Order and Decision be affirmed because the Department failed to
introduce a copy of the DataMaster ticket showing that Faulkenberry refused
STANDARD OF REVIEW
DMVH is authorized by law to determine contested cases arising from the
Department. See S.C. Code Ann. § 1-23-660 (Supp. 2006). 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. 2006); 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. 2006).
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
violation of constitutional or statutory provisions;
excess of the statutory authority of the agency;
upon unlawful procedure;
by other error of law;
erroneous in view of the reliable, probative, and substantial evidence on the
whole record; or
or capricious or characterized by abuse of discretion or clearly unwarranted
exercise of discretion.
S.C. Code Ann. §
1-23-380(A)(5) (Supp. 2006).
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).
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.
of Applicable Law
license to operate a motor vehicle upon the public highways of this State is
not a right, but a mere 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); 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. Taylor v.
S.C. Dep’t of Motor Vehicles, 368 S.C. 33, 36, 627 S.E.2d 751, 753 (Ct.
App. 2006) (quoting 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. S.C. State Hwy. Dep’t v. Harbin, 226 S.C. 585, 595, 86 S.E.2d 466, 470 (1955).
with these principles, the Legislature 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).
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).
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)
(2006); S.C. Dep’t of Motor Vehicles v. Nelson, 364 S.C. 514, 526, 613
S.E.2d 544, 550 (Ct. App. 2005). According to the South Carolina Supreme Court,
a Section 56-5-2951 hearing should be “a summary administrative proceeding designed
to handle license revocation matters quickly.” State v. Bacote, 331
S.C. 328, 333, 503 S.E.2d 161, 164 (1998).
to Specify Which Implied Consent Rights Advisement Was Given
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).
The Department argues that the DMVH hearing officer
erred by rescinding Faulkenberry’s suspension on the grounds that the
Department failed to establish that Faulkenberry received the correct implied
consent advisement. I agree.
Once prima facie evidence is offered to show that a law
enforcement officer complied with a specific Section 56-5-2950 requirement, the
burden shifts to the motorist to produce evidence demonstrating noncompliance. See State v. Parker, 271 S.C. 159, 164, 245 S.E.2d 904, 906 (1978); see
also Ponce v. Commonwealth, Dep’t of Transp., Bureau of Driver
Licensing, 685 A.2d 607, 610-11 (Pa. Commw. Ct. 1996); Johnson v.
Director of Revenue, 168 S.W.3d 139, 142 (Mo. Ct. App. 2005). Prima facie
evidence is 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). “The words
[prima facie evidence] import that the evidence produces for the time being a
certain result; but that result may be repelled.” Mack v. Branch No. 12,
Post Exchange, Fort Jackson, 207 S.C. 258, 272, 35 S.E.2d 838, 844 (1945).
Here, the record contains prima facie evidence to show
that Faulkenberry was given the DUI Advisement. Officer Howard testified that
he arrested Faulkenberry for DUI and that he read him the “under arrest for DUI”
He also testified that, upon arriving at the Lancaster County Detention Center, he read Faulkenberry “the implied consent” and handed Faulkenberry a copy of
it. Officer Howard further testified that he explained to Faulkenberry “several
times” the option of refusing testing and the penalty for doing so.
Additionally, Officer Howard offered into evidence a copy of his DataMaster
card, which indicated that Officer Howard was certified to administer
DataMaster tests on the date of Faulkenberry’s arrest. Finally, the Notice of
Suspension, as completed, is consistent with a DUI refusal situation.
Taken together, the foregoing constituted prima facie evidence that Faulkenberry
was given the DUI Advisement. See Parker, 271 S.C. at 163-64,
245 S.E.2d at 906 (holding 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); see also 29 Am. Jur. 2d Evidence § 203 (1994) (“In the absence of
evidence to the contrary, the law assumes that public officials have performed
their duties properly, unless the official act in question appears irregular on
Thus, because the Department presented prima facie
evidence to show that Faulkenberry was advised in writing of the rights
enumerated in Section 56-5-2950, the burden shifted to Faulkenberry to present
evidence showing that he was not so advised. Faulkenberry did not present any
such evidence. Therefore, the hearing officer erred by rescinding Faulkenberry’s
suspension. See, e.g., 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”).
to Offer DataMaster Ticket into Evidence
however, argues that the DMVH’s
Final Decision and Order should
be affirmed even if the hearing officer erred on other grounds since the
Department failed to offer into evidence a copy of the DataMaster ticket
showing that Faulkenberry refused testing. I disagree.
Howard testified, without objection, that Faulkenberry refused to blow into the
DataMaster machine when prompted to do so. Moreover, the Notice of Suspension,
which was signed by Officer Howard on the date of Faulkenberry’s arrest,
indicates that Faulkenberry refused testing. None of this evidence was contradicted.
Therefore, the DMVH hearing officer’s finding that Faulkenberry refused the
DataMaster test was not “clearly erroneous in view of the reliable, probative,
and substantial evidence on the whole record.” See S.C. Code Ann. § 1-23-380(A)(5) (Supp. 2006). Accordingly, the DMVH’s Final Order and Decision will not be
affirmed on this ground.
It is hereby ordered that the DMVH’s Final Order and Decision
is REVERSED and the Department’s suspension of Faulkenberry’s driver’s license
AND IT IS SO ORDERED.
John D. Geathers
May 14, 2007
Columbia, South Carolina