Friday, October 24, 2014

SC Administrative Law Court Decisions

CAPTION:
SCDMV vs. Jerald Thomas McVeigh

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Appellant:
South Carolina Department of Motor Vehicles

Respondent:
Jerald Thomas McVeigh
 
DOCKET NUMBER:
06-ALJ-21-0339-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) (2006). The Department claims that the DMVH erroneously rescinded the driver’s license suspension of Respondent Jerald Thomas McVeigh (“McVeigh”). 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.

BACKGROUND

On December 1, 2005, while on routine patrol in the City of North Myrtle Beach, Officer Steve Shepard (“Officer Shepard”) of the North Myrtle Beach Public Safety Department observed McVeigh’s vehicle swerving in and out of its traffic lane while traveling south on Hwy. 17.

Soon thereafter, Officer Shepard watched as McVeigh’s vehicle made a sharp turn from lane 2 across lane 3 onto Main Street. Officer Shepard activated his lights and initiated a traffic stop, at which time McVeigh’s vehicle made two left turns without a signal and pulled into a McDonald’s parking lot. Upon stopping, McVeigh got out of the vehicle and started to walk away. Officer Shepard ordered McVeigh to return to his vehicle. As he approached McVeigh, Officer Shepard immediately smelled a strong odor of alcohol and noted that McVeigh was unsteady on his feet. After Mirandizing McVeigh, Officer Shepard asked him to perform three field sobriety tests. McVeigh performed poorly on the tests and was unsteady on his feet throughout the testing process. Officer Shepard arrested McVeigh for driving under the influence (“DUI”) and transported him to the police department for breath testing. Once at the police department, Officer Shepard, a certified DataMaster operator, took McVeigh into the DataMaster room whereupon he read the Implied Consent Advisement form to Respondent. Officer Shepard then furnished a copy of the Implied Consent Advisement form to McVeigh who subsequently refused to submit to a breath test. Based on this refusal, Officer Shepard issued McVeigh a Notice of Suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (2006).

Thereafter, in accordance with S.C. Code Ann. § 56- 5-2951(B)(2) (2006), McVeigh filed a request for an administrative hearing to challenge the suspension. An administrative hearing was held on January 17, 2006. Officer Shepard appeared at the hearing on behalf of the Department, and the Respondent did not personally appear but was represented by counsel.

At the hearing, Officer Shepard testified that, upon arriving at the police department, he “read the advisement of implied consent rights form and gave a copy to Mr. McVeigh in writing immediately following.” McVeigh’s attorney did not cross-examine Officer Shepard and waived closing arguments.

On January 17, 2006, the DMVH hearing officer issued a Final Order and Decision, in which he rescinded McVeigh’s suspension. In doing so, he explained that “Petitioner’s witness did not introduce into the record any evidence corroborating the investigating officer’s testimony concerning the…Implied Consent Advisement given to the Respondent.”[1] The Department now appeals.

ISSUE ON APPEAL

1.      Was it error for the DMVH hearing officer to rescind McVeigh’s suspension on the grounds that Officer Shepard failed to offer documentation to prove that the proper implied consent advisement was given to McVeigh?

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).

DISCUSSION

Summary of Applicable Law

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.

Under S.C. Code Ann. § 56-5-2951(A) (2006), the driver’s license of a motorist who refuses to submit to the testing required under Section 56-5-2950(a) must be immediately suspended.[3] 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); 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, Section 56-5-2951(B)(2) hearings should be designed so as to handle license revocation matters quickly. See 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,[4] and the rights set forth in Section 56-5-2950 are commonly referred to as “implied consent” rights.[5] However, according to SLED Implied Consent Policy 8.12.5(D),[6] 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 McVeigh’s suspension on the grounds that Officer Shepard failed to submit any documentation to prove that the proper implied consent advisement was given to McVeigh in writing. The Department essentially contends that Officer Shepard’s testimony at the hearing constituted prima facie evidence that McVeigh was advised in writing of his Section 56-5-2950 rights. According to the Department, because McVeigh did not present any evidence to refute this evidence, rescission of McVeigh’s suspension was not warranted. I agree.

Once prima facie evidence is offered to show that a motorist was advised in writing of the rights enumerated in Section 56-5-2950, the burden shifts to the motorist to produce evidence showing that he was not so advised. 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 Department presented prima facie evidence to show that McVeigh was given the DUI Advisement in writing. Officer Shepard testified that he arrested McVeigh for DUI and that he read the “advisement of implied consent rights form and gave a copy to Mr. McVeigh in writing immediately following.” Furthermore, Officer Shepard testified that he was a certified DataMaster operator, and that McVeigh refused testing. Overall, this testimony constituted prima facie evidence that McVeigh was given the DUI Advisement in writing. See, e.g., 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);[7] 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.”)[8]

Thus, because the Department presented prima facie evidence to show that McVeigh was advised in writing of the rights enumerated in Section 56-5-2950, the burden shifted to McVeigh to present evidence showing that he was not so advised. McVeigh did not present any such evidence. Therefore, the DMVH hearing officer erred by rescinding McVeigh’s suspension.

ORDER

It is hereby ordered that the DMVH’s Final Order and Decision is REVERSED and the Department’s suspension of McVeigh’s driver’s license is reinstated.

AND IT IS SO ORDERED.

______________________________

John D. McLeod

Administrative Law Judge

May 21, 2007

Columbia, South Carolina



[1] Although it was not entered into evidence, Officer Shepard testified that he had the requisite documentation with him at the hearing. “I’ve brought with me the case file for this incident which includes the incident report, the advisement of implied consent rights form, breath alcohol analysis test report ticket and a South Carolina notice of suspension form.”

[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] The length of the suspension period ranges from 90 days to 180 days, depending upon whether the individual has been convicted of a DUI-related offense within the past ten years. See S.C. Code Ann. § 56-5-2951(I) (2006).

[4] 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); 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).

[5] 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, 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 . . .”).

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

[7] 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).

[8] 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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