Thursday, November 27, 2014

SC Administrative Law Court Decisions

CAPTION:
SCDMV vs. Kenneth L. Russell

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Appellant:
South Carolina Department of Motor Vehicles

Respondent:
Kenneth L. Russell
 
DOCKET NUMBER:
06-ALJ-21-0335-AP

APPEARANCES:
n/a
 

ORDERS:

ORDER

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) (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 The Department claims that the DMVH erroneously rescinded the driver’s license suspension of Respondent Kenneth L. Russell (“Russell”).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.

BACKGROUND

On 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).

Thereafter, 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 On February 22, 2006, the DMVH hearing officer issued a Final Order and Decision, in which she rescinded Russell’s suspension.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, she held:

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 be granted.

The Department now appeals.

ISSUES ON APPEAL

1.      Does this Court lack the authority to reverse the DMVH’s Final Order and Decision?

2.      Did 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?

3.      Should 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 Russell?[1]

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 (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).[2] 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.

DISCUSSION

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. 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.

Consistent 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).[3] 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).

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) (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).

ALC’s Authority to Reverse the DMVH’s Final Order and Decision

As 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.

Pursuant 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,[4] 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.[5]

Notably, 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.

Mackey, 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.

With 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.

For these reasons, this Court will not, as Russell urges, affirm the DMVH’s Final Order and Decision without addressing the substantive issues on appeal.

Implied Consent Rights Advisement

a. Generally

Section 56-5-2950 is widely called the “implied consent” statute,[6] and the rights set forth in Section 56-5-2950 are commonly referred to as “implied consent” rights.[7] However, according to SLED Implied Consent Policy 8.12.5(D),[8] 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 Advisement).

b. “In Writing” Requirement

The 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.

At the hearing, Officer Grainger provided the following testimony:

After reading [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 reading it.

(emphasis 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:

Officer Grainger read the Implied Consent Advisement to Respondent. Respondent was given a copy to read along with.

(emphasis added).

In 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”).

c. Appropriateness

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.”[9] 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).[10] 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.”).[11] 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.

ORDER

It is hereby ordered that the DMVH’s Final Order and Decision is REVERSED.

AND IT IS SO ORDERED.

______________________________

John D. McLeod

Administrative Law Judge

May 21, 2007

Columbia, South Carolina



[1] This issue was raised by Russell as an additional sustaining ground. 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).

[2] 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).

[3] 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) (Supp. 2004).

[4] S.C. Dep’t of Motor Vehicles v. Nelson, 364 S.C. 514, 522, 613 S.E.2d 544, 548 (Ct. App. 2005).

[5] State v. Price, 333 S.C. 267, 273, 510 S.E.2d 215, 219 (1998). As South Carolina courts have noted, driving while under the influence of alcohol or drugs poses a significant risk to others. See State v. Martin, 275 S.C. 141, 146, 268 S.E.2d 105, 107 (1980) (noting that an individual who drives while intoxicated “presents a clear and present danger to the community”); Lydia v. Horton, 343 S.C. 376, 393, 540 S.E.2d 102, 111 (Ct. App. 2000) (noting that there is a “general understanding that driving while intoxicated presents an unreasonable risk of physical harm to the driver and others”), rev’d on other grounds, 355 S.C. 36, 583 S.E.2d 750 (2003).

[6] See, e.g., 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); State v. Bacote, 331 S.C. 328, 329, 503 S.E.2d 161, 162 (1998); 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).

[7] See e.g., Taylor v. S.C. Dep’t of Motor Vehicles, 368 S.C. 33, 35, 627 S.E.2d 751, 752 (Ct. App. 2006); Nelson, 364 S.C. at 517, 613 S.E.2d at 546; Sponar v. S.C. Dep’t of Pub. Safety, 361 S.C. 35, 36-37, 603 S.E.2d 412, 413 (Ct. App. 2004); 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 . . .”).

[8] SLED’s implied consent policies can be found at http://www.sled.sc.gov.

[9] A Commercial Driver’s License “implied consent” situation occurs when a person is arrested for having a measurable amount of alcohol in his body while driving a commercial motor vehicle. See S.C. Code Ann. §§ 56-1-2120 to 56-1-2130 (Supp. 2004); see also Cole & Huff, supra, at 342 (setting forth copy of Commercial Driver’s License Advisement).

[10] Pursuant to the Felony DUI statute, S.C. Code Ann. § 56-5-2945 (Supp. 2004), a person who, while under the influence of alcohol, drugs, or the combination of alcohol and drugs, drives a vehicle and when driving does any act forbidden by law or neglects any duty imposed by law in the driving of the vehicle, which act or neglect proximately causes great bodily injury or death to a person other than himself, is guilty of a felony.

[11] 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).


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