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erroneously rescinded the driver’s license suspension of Respondent Jason Boyd (“Boyd”).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.
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.
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Decision, in which he rescinded Boyd’s suspension.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:
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.
this Court lack the authority to reverse the DMVH’s Final Order and Decision?
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?
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 (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).
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).
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)).
Authority to Reverse the DMVH’s Final Order and Decision
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.
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, 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.
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 Boyd’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 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.
these reasons, this Court will not, as Boyd 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
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.”).
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
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.
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.
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.
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, the Zero Tolerance Advisement informs motorists that their licenses must be
suspended for at least six months if they refuse testing.
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
is hereby ordered that the DMVH’s Final Order and Decision is REVERSED.
AND IT IS SO ORDERED.
CAROLYN C. MATTHEWS
July 16, 2007
Columbia, South Carolina