OF THE CASE
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rescinded the driver’s license suspension of Respondent Jerald Thomas McVeigh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.
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.
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).
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.
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.
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.” The
Department now appeals.
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
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).
of Applicable Law
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
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
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).
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 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); 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.”)
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.
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.
May 21, 2007
Columbia, South Carolina