Friday, June 22, 2018

SC Administrative Law Court Decisions

SCDMV vs. Chuck Ryan Faulkenberry

South Carolina Department of Motor Vehicles

South Carolina Department of Motor Vehicles

Chuck Ryan Faulkenberry





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 The Department claims that the DMVH erroneously rescinded the driver’s license suspension of Respondent Chuck Ryan Faulkenberry (“Faulkenberry”).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.

Thereafter, 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.

On July 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 appeals.


1.      Did 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?[1]

2.      Should 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 testing?[2]


The 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).[3] 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) (Supp. 2006).

A 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).

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, 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.


Summary of Applicable Law

The 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).

Consistent 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).[4] 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).

If 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).

Failure to Specify Which Implied Consent Rights Advisement Was Given

Section 56-5-2950 is widely called the “implied consent” statute,[5] and the rights set forth in Section 56-5-2950 are commonly referred to as “implied consent” rights.[6] However, according to SLED Implied Consent Policy 8.12.5(D),[7] 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” notification.[8] 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.[9] Officer Howard further testified that he explained to Faulkenberry “several times” the option of refusing testing and the penalty for doing so.[10] 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.[11] 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);[12] 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 its face.”).[13]

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”).

Failure to Offer DataMaster Ticket into Evidence

Faulkenberry, 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.

Officer 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 is reinstated.



John D. Geathers

Administrative Law Judge

May 14, 2007

Columbia, South Carolina

[1] Although the Department presented additional issues on this appeal, because this issue is dispositive, the other issues need not be addressed. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (noting that an appellate court need not address remaining issues when a prior issue is dispositive).

[2] This issue was raised by Faulkenberry. According to the South Carolina Supreme Court, “a respondent — the ‘winner’ in the lower court — may raise on appeal any additional reasons the appellate court should affirm the lower court’s ruling, regardless of whether those reasons have been presented to or ruled on by the lower court.” I’On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 419, 526 S.E.2d 716, 723 (2000).

[3] Pursuant to S.C. Code Ann. § 1-23-380(B) (Supp. 2006), administrative law judges must conduct appellate review in the same manner prescribed in Section 1-23-380(A).

[4] Blood and urine tests may be administered to motorists arrested for DUI only if certain other conditions are met. See S.C. Code Ann. § 56-5-2950(a) (2006).

[5] See State v. Haase, 367 S.C. 264, 267, 625 S.E.2d 634, 635 (2006); State v. Frey, 362 S.C. 511, 516, 608 S.E.2d 874, 877 (Ct. App. 2005); Bacote, 331 S.C. at 329, 503 S.E.2d at 162; Kelly v. S.C. Dep’t of Highways, 323 S.C. 334, 336, 474 S.E.2d 443, 444 (Ct. App. 1996); S.C. Dep’t of Highways and Pub. Transp. v. Sanford, 318 S.C. 44, 45, 455 S.E.2d 710, 711 (Ct. App. 1995); State v. Baker, 310 S.C. 510, 511, 427 S.E.2d 670, 671 (1993); State v. Cribb, 310 S.C. 518, 520, 426 S.E.2d 306, 308 (1992); State v. Hunter, 305 S.C. 560, 561, 410 S.E.2d 242, 242 (1991); Shumpert v. S.C. Dep’t of Highways and Pub. Transp., 306 S.C. 64, 65, 409 S.E.2d 771, 772 (1991); State v. Williams, 297 S.C. 290, 293, 376 S.E.2d 773, 774 n.1 (1989).

[6] See Taylor, 368 S.C. at 35, 627 S.E.2d at 752; Nelson, 364 S.C. at 517, 613 S.E.2d at 546; Sponar, 361 S.C. at 36-37, 603 S.E.2d at 413; see also Haase, 367 S.C. at 266; 625 S.E.2d at 634 (calling Section 56-5-2950 rights “implied consent warnings”); but see State v. Cuevas, 365 S.C. 198, 201, 616 S.E.2d 718, 720 (Ct. App. 2005) (“Officers gave Cuevas the implied consent warnings for felony DUI . . .”).

[7] SLED’s implied consent policies can be found at

[8] This notification, unlike the DUI Advisement, is required by S.C. Code Ann. § 56-5-2934 (2006). Its purpose is to inform the motorist that his license will be suspended if he refuses or fails the DataMaster test, and to notify him of his right to a hearing concerning any such suspension. Haase, 367 S.C. at 267, 625 S.E.2d at 635. Although this notification is not as comprehensive as the DUI Advisement, the fact that Officer Howard read this notification to Faulkenberry shows that he took steps consistent with a DUI arrest.

[9] Notably, the name of each implied consent advisement is set forth in bold, capital letters at the top of each advisement. See Cole & Huff, supra, at 236, 341-42 (setting forth copies of the eight different implied consent advisements). Moreover, each advisement clearly states the statutory violation for which the individual has been detained. See id. For instance, the first bulleted item in the BUI Advisement reads: “You are under arrest for Boating Under the Influence, Section 50-21-112, South Carolina Code of Laws 1976, as amended.” See Cole & Huff, supra, at 236.

[10] Unlike the DUI Advisement, the Felony DUI Advisement does not advise motorists that they have the right to refuse chemical testing. See Cole & Huff, supra, at 341 (setting forth copy of Felony DUI Advisement); see also S.C. Code Ann. § 56-5-2946 (2006).

[11] For instance, on the Notice of Suspension, Officer Howard checked the “Refusing to submit to a breath, blood or urine test” box that was located under the heading, “Any age under arrest for DUI.” Notably, he did not check the “Refusing to submit to a breath, blood or urine test” box that was located under the heading, “Under the Age of Twenty-One (21) and not under Arrest for DUI,” which would have been appropriate for a Zero Tolerance refusal situation. See Cole & Huff, supra, at 342 (setting forth copy of Zero Tolerance Advisement); see also S.C. Code Ann. § 56-1-286 (2006) (“Zero Tolerance” statute). Moreover, under “Vehicle Type,” Officer Taylor checked “Noncommercial.”

[12] Importantly, as SLED policy clearly indicates, one portion of the breath test administration process is the provision of the implied consent rights advisement. See SLED Implied Consent Policy 8.12.5(C)(1).

[13] This presumption has been recognized in South Carolina. See 30 S.C. Jur. Evidence § 29 (2006) (“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) (same); 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.”); Steele v. Atkinson, 14 S.C. 154, 161 (1880) (“The rule of law undoubtedly is that, in the absence of any evidence to the contrary, the presumption is that a public officer has done his duty — not that he has violated it.”). Moreover, this presumption has been applied to law enforcement officers. See, e.g., Steele, supra (applying presumption to a sheriff); Fisk v. Dep’t of Motor Vehicles, 179 Cal. Rptr. 379 (Cal. Ct. App. 1981) (applying presumption to a highway patrol officer and stating that presumption “may help lay the foundation for admissibility of evidence”); State v. Hensley, 600 N.E.2d 849 (Ohio Ct. App. 1992) (applying presumption to law enforcement officials); Barnes v. State, 763 So.2d 216 (Miss. Ct. App. 2000) (same). Furthermore, the South Carolina Supreme Court has held that state highway patrol officers and troopers fall within the common law definition of “public officer.” See State v. Bridgers, 329 S.C. 11, 495 S.E.2d 196 (1997).