Saturday, June 23, 2018

SC Administrative Law Court Decisions

SCDMV vs. Jason Boyd

South Carolina Department of Motor Vehicles

South Carolina Department of Motor Vehicles

Jason Boyd





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 The Department claims that the DMVH erroneously rescinded the driver’s license suspension of Respondent Jason Boyd (“Boyd”).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


On July 1, 2006, Officer Robert Batchelor (“Trooper Batchelor”) of the South Carolina Highway Patrol responded to a traffic accident that occurred on Highway 22 in Horry County. When he arrived at the scene, he observed that Boyd’s vehicle was in a ditch, and that Boyd was lying down “like he was passed out.” According to Trooper Batchelor, Boyd smelled of alcohol and had slurred speech. Boyd admitted that he was driving his vehicle when it went off the road and into a ditch. Trooper Batchelor read Boyd his Miranda rights and asked him to submit to field sobriety testing. Boyd refused. Officer Bachelor arrested Boyd for driving under the influence (“DUI”) and transported him to a detention center for a breath test. Boyd was subsequently issued a Notice of Suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (2006) for refusing to submit to breath testing.

Thereafter, pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (2006), Boyd filed a request for an administrative hearing to challenge the suspension. An administrative hearing was held on July 31, 2006. Trooper Batchelor testified at the hearing on behalf of the Department. Boyd neither testified nor presented any other evidence. On August 8, 2006, the DMVH hearing officer issued a Final Order and Decision, in which he rescinded Boyd’s suspension. Specifically, he held:

Trooper Batchelor testified that he read an Implied Consent Advisement to the Respondent before any testing began; however, there was no corroborating evidence introduced into the record as to which specific Implied Consent Advisement was given to the Respondent. The Petitioner’s Witness failed to prove that the appropriate Implied Consent Advisement was given to the Respondent in writing. 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.


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

2.      Was it error for the DMVH hearing officer to rescind Boyd’s suspension on the grounds that Trooper Batchelor failed to show which implied consent advisement was given to Boyd?


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).[1] 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. 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 (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).[2] 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) (2006). 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); see also S.C. Dep’t of Motor Vehicles v. Nelson, 364 S.C. 514, 526, 613 S.E.2d 544, 550 (Ct. App. 2005) (discussing S.C. Code Ann. § 56-5-2951(H) (Supp. 2002), a precursor to S.C. Code Ann. § 56-5-2951(F) (2006)).

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

As an initial matter, Boyd 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 Boyd, “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. The State has a strong interest in maintaining the safety of its roads,[3] and the purpose of administratively suspending a motorist’s license for refusing to submit to chemical testing is to protect those who use such roads.[4]

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 Boyd’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 his decision to rescind Boyd’s suspension solely on his conclusion that the Department failed to meet its burden of proof with respect to demonstrating that Boyd was given the appropriate implied consent advisement. Therefore, if, as the Department argues, his conclusion was erroneous, then the Department was prejudiced by this error.

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

Implied Consent Rights Advisement

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 (“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).

The Department argues that the DMVH hearing officer erred by rescinding Boyd’s suspension on the grounds that Trooper Batchelor failed to show which implied consent advisement was given to Boyd. I agree.

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 Boyd was given the DUI Advisement. First, Trooper Batchelor testified that he arrested Boyd for DUI and that he read Boyd “his roadside implied advisement.” The “roadside implied advisement” is required by S.C. Code Ann. § 56-5-2934 (2006) for DUI and Felony DUI arrests only. 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 the “roadside implied advisement” is not as comprehensive as the DUI Advisement, the fact that Trooper Batchelor read it to Boyd shows that he took steps consistent with a DUI arrest.

Second, Trooper Batchelor testified that, at the detention center, he read Boyd “his implied consents,” and that he gave Boyd a copy of such before offering the breath test to him. With respect to this testimony, it should be noted that determining which implied consent advisement form to use in a certain situation appears to be relatively straightforward. For instance, 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). 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.

Finally, Trooper Batchelor testified that he was trained and certified to administer DataMaster tests. As SLED policy makes clear, one portion of the DataMaster test administration process is the provision of the implied consent advisement. See SLED Implied Consent Policy 8.12.5(C)(1).

Taken together, the foregoing constituted prima facie evidence that Boyd was given the DUI Advisement. 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). The fact that Trooper Batchelor did not specifically testify as to the name of the implied consent advisement given to Boyd did not mandate the rescission of Boyd’s suspension. See 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] 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. 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, Boyd had the opportunity, through cross-examination, to elicit more specific testimony from Trooper Batchelor regarding the implied consent advisement form that he used. However, Boyd chose not to utilize this opportunity. See State v. Hyder, 242 S.C. 372, 131 S.E.2d 96 (1963) (rejecting defendant’s claim that trial court erred by admitting into evidence field glasses that were identical with the ones used by State’s witness where defendant simply speculated that the original field glasses might have been defective and did not cross-examine State’s witness on the issue). Moreover, Boyd did not object to the admission of the testimony regarding his refusal. See State v. Frey, 362 S.C. 511, 516 n.1, 608 S.E.2d 874, 878 (Ct. App. 2005) (where, in finding that State failed to establish compliance with Section 56-5-2950 in obtaining blood sample from motorist, Court of Appeals took into consideration the fact that the admission of the blood test results was “subject to repeated defense objections”). Therefore, the DMVH hearing officer erred by rescinding Boyd’s suspension.

Furthermore, reversal of the DMVH hearing officer’s Final Order and Decision is also warranted by the Court of Appeals’ decision in Taylor, supra. In Taylor, the Court of Appeals, in a case involving a motorist’s refusal to submit to chemical testing, held that “a violation of section 56-5-2950 without resulting prejudice will not lead to a suppression of the evidence obtained pursuant to [Section 56-5-2950].” Taylor, 368 S.C. at 38, 627 S.E.2d at 754.[9]

In this case, even if this Court were to presume that Boyd was given the wrong implied consent advisement, based on the existing record, a finding of prejudice would not be warranted.[10] The record clearly demonstrates that Boyd exercised both his right to refuse testing and his right to request an administrative hearing. Additionally, the record also shows that Boyd was advised of his right to have a qualified person of his own choosing conduct an additional independent test.[11] Thus, the only plausible way prejudice could have occurred is if the information contained in the implied consent advisement regarding the consequences of refusing testing affected Boyd’s decision to refuse. However, without knowing which incorrect advisement was given, it is simply impossible to make a credible determination as to whether the advisement affected Boyd’s decision. For example, while the DUI Advisement informs motorists that their licenses must be suspended for at least ninety days if they refuse testing,[12] the Zero Tolerance Advisement informs motorists that their licenses must be suspended for at least six months if they refuse testing.[13] Thus, receiving the Zero Tolerance Advisement, rather than the DUI Advisement, would likely make a motorist less inclined to refuse testing — not more so. Accordingly, for this reason as well, the DMVH’s Final Order and Decision must be reversed.


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




Administrative Law Judge

July 16, 2007

Columbia, South Carolina

[1] 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).

[2] 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).

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

[4] State v. Kerr, 330 S.C. 132, 150, 498 S.E.2d 212, 221 (Ct. App. 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).

[5] 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).

[6] 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] 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).

[9] See also S.C. Code Ann. § 56-5-2950(e) (2006) (“The failure to follow . . . the provisions of this section, shall result in the exclusion from evidence any tests results, if the trial judge or hearing officer finds that such failure materially affected the accuracy or reliability of the tests results or the fairness of the testing procedure.”).

[10] The DMVH hearing officer’s Final Order and Decision contains no findings with respect to whether or not Boyd suffered prejudice.

[11] All eight implied consent advisements inform motorists that they have the right to have a qualified person of their own choosing conduct additional independent tests at their expense. See Cole & Huff, supra, at 236, 341-42 (setting forth copies of the eight different implied consent advisements). Thus, Boyd would have been advised of this right regardless of which implied consent advisement he received.

[12] See Cole & Huff, supra, at 341 (setting forth copy of DUI Advisement); see also S.C. Code Ann. § 56-5-2950(a) (2006).

[13] See Cole & Huff, supra, at 342 (setting forth copy of Zero Tolerance Advisement); see also S.C. Code Ann. § 56-1-286(I) (2006).