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) (Supp. 2004). The Department claims that the
DMVH erroneously rescinded the driver’s license suspension of Respondent
Kenneth L. Russell (“Russell”). 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.
December 7, 2005, Officer Steve Grainger (“Officer Grainger”), a 16-year
veteran member of the South Carolina Highway Patrol, stopped Russell’s vehicle,
a Pontiac, for speeding. As Russell rolled down the window of his vehicle, Officer
Grainger noticed “a strong odor of alcohol” coming from the vehicle. When
asked by Officer Grainger, Russell, a 44 year-old man, admitted that he had
been drinking alcohol. Officer Grainger performed several field sobriety tests
on Russell. Based on Russell’s performance on the tests, Officer Grainger
concluded that Russell “had too much to be driving.” Officer Grainger arrested
Russell and transported him to the Berkeley County Detention Center for a breath test. Russell refused testing. Based on this refusal, Russell was issued
a Notice of Suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (Supp. 2004).
pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (Supp. 2004), Russell filed a
request for an administrative hearing to challenge the suspension. An administrative
hearing was held on January 24, 2006. Officer Grainger testified at the
hearing on behalf of the Department. Russell neither testified nor presented any
other evidence. On February 22, 2006, the DMVH hearing officer issued a Final
Order and Decision, in which she rescinded Russell’s suspension. Specifically,
There is no
evidence or testimony that that [sic] the Officer advised Respondent of the
Implied Consent Advisement in writing. There being no evidence corroborating
the investigating officer’s testimony concerning the Advisement of Implied
Consent, I conclude as a matter of law that the Petitioner has failed to meet
its burden of proof. Accordingly, the relief requested by the Respondent must
The Department now appeals.
this Court lack the authority to reverse the DMVH’s Final Order and Decision?
the DMVH hearing officer err by concluding that the Department failed to meet
its burden of proof with respect to demonstrating that Russell was given the
implied consent advisement in writing?
the DMVH’s Final Order and Decision be affirmed since Officer Grainger failed
to specifically testify as to which implied consent advisement was given to
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. S.C. State Hwy. Dep’t v. Harbin, 226 S.C. 585, 595, 86 S.E.2d 466, 470 (1955).
However, it cannot be revoked arbitrarily or capriciously. Id.
with these principles, the Legislature enacted S.C. Code Ann. § 56-5-2950 (Supp.
2004) and S.C. Code Ann. § 56-5-2951 (Supp. 2004). 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) (Supp. 2004).
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) (Supp. 2004).
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) (Supp. 2004). 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) (Supp.
2004). 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) (Supp. 2004); S.C. Dep’t of Motor Vehicles v. Nelson, 364
S.C. 514, 526, 613 S.E.2d 544, 550 (Ct. App. 2005).
Authority to Reverse the DMVH’s Final Order and Decision
an initial matter, Russell argues that this Court does not have the authority
to reverse the DMVH’s Final Order and Decision because the Department has
failed to argue and, according to Russell, “nothing in this record even
remotely suggests” that substantial rights of the Department were prejudiced by
the DMVH’s Final Order and Decision. I disagree.
to Section 1-23-380(A)(5), the ALC may reverse a decision of the DMVH where an
error has caused (1) substantial rights of the appellant (2) to be prejudiced.
With respect to the first requirement, the right of the Department, as a State
agency, to implement the administrative suspension of a motorist who refuses to
submit to chemical testing is a substantial right. This is because the State
has a strong interest in maintaining the safety of its roads, and the “primary goal” of administratively suspending a motorist’s license for
refusing to submit to chemical testing is to protect those who use such roads.
in Mackey v. Montrym, 443 U.S. 1 (1979), the United States Supreme Court
explained how, with respect to the Massachusetts implied consent law, a State’s
interest in public safety is “substantially served” by the summary suspension
of those motorists who refuse to submit to breath testing:
First, the very
existence of the summary sanction of the statute serves as a deterrent to
drunken driving. Second, it provides strong inducement to take the breath-analysis
test and thus effectuates the Commonwealth’s interest in obtaining reliable and
relevant evidence for use in subsequent criminal proceedings. Third, in
promptly removing such drivers from the road, the summary sanction of the
statute contributes to the safety of public highways.
443 U.S. at 18. Similarly, the South Carolina Court of Appeals has also
recognized the important function that such suspensions serve. See Nelson,
364 S.C. at 522, 613 S.E.2d at 548-49 (“Were drivers free to refuse alcohol and
drug testing without suffering penalty, the current system of detecting,
testing, and prosecuting drunk drivers would simply fail.”). Therefore, as the
aforementioned cases make clear, the Department’s right to implement Russell’s
administrative suspension is a substantial right.
regard to the second requirement, errors that affect the outcome of a case are
prejudicial. See, e.g., State v. Covert, 368 S.C. 188,
628 S.E.2d 482 (Ct. App. 2006) (remanding case after finding that legal error
“could have reasonably affected the result of the trial”). Here, the hearing
officer based her decision to rescind Russell’s suspension solely on her
conclusion that the Department failed to meet its burden of proof with respect
to demonstrating that Russell was given the implied consent advisement in
writing. Therefore, if, as the Department argues, her conclusion was
erroneous, then the Department was prejudiced by this error, unless, of course,
the additional sustaining ground raised by Russell has merit.
these reasons, this Court will not, as Russell urges, affirm the DMVH’s Final
Order and Decision without addressing the substantive issues on appeal.
Consent Rights Advisement
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 (“FUI”) Advisement; and (8) Shooting
Under the Influence (“SUI”) 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
“In Writing” Requirement
Department argues that the DMVH hearing officer erred by concluding that the Department
failed to meet its burden of proof with respect to demonstrating that Russell was
given the implied consent advisement in writing. I agree.
the hearing, Officer Grainger provided the following testimony:
[Russell] his implied consent and while reading it to him, he was also given
a copy, which is on the videotape showing him reading it, the copy as I’m
added). This testimony was not contradicted, and Officer Grainger was not
cross-examined at the hearing. Moreover, in her Findings of Fact, the hearing
officer made the following finding:
read the Implied Consent Advisement to Respondent. Respondent was given a
copy to read along with.
light of the foregoing, the hearing officer’s conclusion that the Department
failed to sufficiently prove that Russell was given the implied consent
advisement in writing is both odd and erroneous. While it is true that a
tribunal does not always have to accept uncontradicted evidence as establishing
the truth, the same should be accepted unless there is reason for disbelief. Elwood
Constr. Co. v. Richards, 265 S.C. 228, 234, 217 S.E.2d 769, 771 (1975). In
this case, the record discloses no reason to disbelieve Officer Grainger’s
testimony. Therefore, Officer Grainger’s testimony alone was sufficient to
establish that Russell was given the implied consent advisement in writing. See Cheatham v. Gregory, 313 S.E.2d 368, 370 (Va. 1984) (“A trier of fact
must determine the weight of the testimony and the credibility of witnesses,
but may not arbitrarily disregard uncontradicted evidence of unimpeached
witnesses which is not inherently incredible and not inconsistent with facts in
the record . . .”); see also Mackey, 443 U.S. at 14 (opining that
“the risk of erroneous observation or deliberate misrepresentation of the facts
by the reporting officer in the ordinary case seems insubstantial”).
Russell, however, argues that the DMVH’s Final Decision
and Order should be affirmed even if the hearing officer erred on other grounds
since Officer Grainger failed to specifically testify as to which implied
consent advisement was given to Russell. I disagree.
Absent any proof to the contrary, prima facie evidence is
sufficient to establish that law enforcement complied with Section 56-5-2950 in
administering a breath test. 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). 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 Russell was given the DUI Advisement. First, Officer Grainger testified
that he read Russell “his implied consent,” and that he handed
Russell a copy of it as well. Importantly, determining which implied consent advisement
to give to a motorist in a certain situation does not appear to be difficult.
For instance, the name of each 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). In addition, each advisement clearly states the statutory
violation for which the individual has been detained. See id.
For example, the first bulleted item in the FUI Advisement reads: “You are
under arrest for operating or acting as a flightcrew member of aircraft while
under the influence of alcohol or drugs, Section 55-1-100, South Carolina Code
of Laws 1976, as amended.” See Cole & Huff, supra, at 236.
Second, the evidence in the record shows that Officer
Grainger took actions that were consistent with a DUI refusal situation, and
that were inconsistent with other “implied consent” refusal situations. For
instance, on the Notice of Suspension, Officer Grainger 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.” 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 S.C. Code Ann. § 56-1-286 (2006) (“Zero Tolerance”
statute); see also Cole & Huff, supra, at 342 (setting forth
copy of Zero Tolerance Advisement). Moreover, under “Vehicle Type,” Officer
Grainger checked “Noncommercial,” rather than “Commercial.” Furthermore, to penalize Russell for refusing testing, Officer Grainger suspended
Russell’s driver’s license. Notably, the BUI, FUI and SUI statutes do not list
suspension of one’s driver’s license as a possible penalty for refusing testing. See S.C. Code Ann. § 50-21-114(E) (Supp. 2005) (stating that the penalty
for refusing the BUI implied consent test is 180-day suspension of privilege to
operate a water device); S.C. Code Ann. § 55-1-100(B) (Supp. 2005) (stating
that the penalty for refusing the FUI implied consent test is fine of $200 or
imprisonment for a period between 48 hours and 30 days, or both); S.C. Code
Ann. §§ 23-31-400 to 23-31-420 (Supp. 2005) (not setting forth a punishment for
refusing the SUI implied consent test); see also Cole & Huff, supra,
at 236, 342 (setting forth copies of BUI, FUI and SUI advisements).
Finally, Officer Grainger provided the following,
uninterrupted testimony: “At that point in time [Russell] refused the test, filled
the form out and signed the following stating that he did refuse.” This
testimony demonstrates that Russell refused testing, and it also appears to
show that Russell was allowed to do so without any resistance from Officer
Grainger. This is relevant because, unlike the DUI Advisement, the Felony DUI
Advisement does not mention a right to refuse testing; instead, it actually
states that motorists “must” submit to chemical testing. See Cole &
Huff, supra, at 341 (setting forth a copy of the Felony DUI Advisement); see also S.C. Code Ann. § 56-5-2946 (Supp. 2004) (“Notwithstanding
any other provision of law, a person must submit to either one or a
combination of chemical tests of his breath, blood, or urine for the purpose of
determining the presence of alcohol, drugs, or a combination of alcohol or
drugs if there is probable cause to believe that the person violated or is
under arrest for a violation of [the Felony DUI statute]”) (emphasis added). Thus, the aforementioned testimony seems to undermine any notion that Officer
Grainger read Russell the Felony DUI Advisement.
Taken together, the foregoing constituted prima facie
evidence that Russell was given the DUI Advisement. The fact that Officer
Grainger did not specifically testify as to the name of the implied consent
advisement given to Russell did not mandate the rescission of Russell’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”); 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.”).
The Department is not required, in its case in chief, to anticipate and address
every conceivable argument for rescission that a motorist might make in his
closing argument or on appeal. See Bacote, 331 S.C. at 333, 503
S.E.2d at 164 (stating that an implied consent hearing “should be a summary
administrative proceeding designed to handle license revocation matters
quickly”). Here, Russell had the opportunity, through cross-examination, to
elicit more specific testimony from Officer Grainger regarding the implied
consent advisement given to Russell. However, Russell chose not to utilize
this opportunity. Moreover, there is simply nothing in the record that
suggests that Officer Grainger misunderstood any of the facts relevant to
determining which advisement to give to Russell. In fact, the evidence
demonstrates just the opposite. For these reasons, this Court will not affirm
the rescission of Russell’s suspension simply because the record does not
completely rule out the possibility that Officer Grainger, a 16-year veteran of
the South Carolina Highway Patrol, handed the wrong implied consent advisement
to Russell and, despite also reading a copy of such advisement to Russell,
never corrected his error.
is hereby ordered that the DMVH’s Final Order and Decision is REVERSED.
AND IT IS SO ORDERED.
John D. McLeod
May 21, 2007
Columbia, South Carolina