Tuesday, July 22, 2014

SC Administrative Law Court Decisions

CAPTION:
SCDMV vs. Josh J. Dauss

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Appellants:
North Myrtle Beach Department of Public Safety and South Carolina Department of Motor Vehicles

Respondent:
 
DOCKET NUMBER:
06-ALJ-21-0880-AP

APPEARANCES:
n/a
 

ORDERS:

ORDER

STATEMENT OF THE CASE

This appeal by the South Carolina Department of Motor Vehicles (Department) is from a Final Order and Decision of the South Carolina Division of Motor Vehicle Hearings (DMVH). The DMVH issued its Final Order and Decision following an administrative hearing conducted pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (2006). The Department claims that the DMVH hearing officer erroneously rescinded the suspension of the driver’s license of Respondent Josh J. Dauss. The Administrative Law Court (ALC or Court) has jurisdiction to hear this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2006). For the following reasons, the Final Order and Decision of the DMVH is reversed.

BACKGROUND

On September 5, 2006, Officer Michael Swarthout,[1] a police officer for the North Myrtle Beach Department of Public Safety, observed a white Nissan, South Carolina tag 3455VK, traveling on South Ocean Boulevard within the City of North Myrtle Beach. The Nissan proceeded past a stop sign and slid into the intersection on a very hard stop. It then made a left turn and proceeded into the path of another vehicle traveling in the opposite direction, requiring the other vehicle’s driver to apply brakes. After observing the Nissan drifting back and forth in its lane of travel, Officer Swarthout stopped the Nissan and noticed an odor of alcohol coming from its driver, Dauss. Officer Swarthout asked Dauss to perform three field sobriety tests, and Dauss failed all three tests. Officer Swarthout arrested Dauss for driving under the influence (DUI) and transported him to the North Myrtle Beach Department of Public Safety.

Officer Amy Zymislicky, a certified DataMaster operator, administered a breath test for Dauss after reading to him the DUI advisement from the Advisement of Implied Consent Rights form and providing a copy of the form to Dauss. The process was videotaped. Dauss gave a breath sample that showed a .21 percent blood alcohol concentration. Based on the breath test result, Officer Zymislicky issued Dauss a Notice of Suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (2006). Pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (2006), Dauss requested an administrative hearing to challenge the suspension. On November 13, 2006, the DMVH held an administrative hearing. Officers Swarthout and Zymislicky appeared at the hearing on behalf of the Department but were not assisted by counsel.

On November 17, 2006, the DMVH hearing officer served the parties with his order rescinding Dauss’s suspension based on his conclusion that the Department failed to meets its burden of proof:

There was testimony entered into the record by the DataMaster Operator that the Respondent was read and given a copy of a DUI advisement. S.C. Code Ann. § 56-5-2950 (2006) states that the Respondent must be given a copy of the appropriate Implied Consent Advisement in writing. No evidence was presented as to the “Driving Under the Influence Advisement” of the Implied Consent Advisement being given to the Respondent in writing. There are several versions of advisements based on the nature of the arrest. It is unclear of what rights the Respondent was advised. The DataMaster Operator testified that the machine was operating properly. No exhibit (i.e. the Breath Alcohol Analysis Test Report) was introduced into the record to corroborate the DataMaster Operator’s testimony as to the machine working properly. There was no evidence that the DataMaster Operator was able to conclude from his [sic] own expertise that a DataMaster machine is or not working correctly. Without the admission of the test report, I cannot conclude that the statutory requirements were met. I conclude as a matter of law that the Petitioners have failed to meet their burden of proof. Accordingly, the relief requested by the Respondent must be granted.

The Department appeals.

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 DMVH decisions. See S.C. Code Ann. § 1-23-380 (Supp. 2006). 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]

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

Implied Consent

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 & -2951 (2006). Section 56-5-2950 declares that a person who drives a motor vehicle in this state implicitly consents to a chemical test of his breath, blood or urine for the purpose of determining the presence of alcohol or drugs. The statute requires that, at the direction of the arresting officer, a breath test be administered to a motorist arrested for DUI. 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:

(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 has an alcohol concentration of fifteen one-hundredths of one percent or more 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) consented to taking a test pursuant to Section 56-5-2950, and the: (a) reported alcohol concentration at the time of testing was fifteen one-hundredths of one percent or more; (b) individual who administered the test or took samples was qualified pursuant to Section 56-5-2950; (c) tests administered and samples obtained were conducted pursuant to Section 56-5-2950; and (d) machine was working properly. S.C. Code Ann. § 56-5-2951(F) (2006).

In an administrative hearing conducted pursuant to Section 56-5-2951, the Department bears the burden of proof. S.C. Dep’t of Motor Vehicles v. Kirschmann, 06-ALJ-21-0185-AP (June 20, 2006); see also Summersell v. S.C. Dep’t of Pub. Safety, 334 S.C. 357, 368, 513 S.E.2d 619, 625 (Ct. App. 1999) (with respect to S.C. Code Ann. § 56-5-2950(E) (1991), a precursor to the current Section 56-5-2951(F), once the Department has made a showing as to the three elements, jurisdiction has been established), vacated in part on other grounds, 337 S.C. 19, 522 S.E.2d 144 (1999). However, once prima facie evidence is offered to show that law enforcement officers complied with a specific Section 56-5-2950 requirement, the burden shifts to the motorist to produce evidence demonstrating noncompliance. Cf. State v. Parker, 271 S.C. 159, 164, 245 S.E.2d 904, 906 (1978) (discussing common law requirements for laying foundation to introduce results of breath test in criminal prosecution); Ponce v. Commonwealth, Dep’t of Transp., Bureau of Driver Licensing, 685 A.2d 607, 610-11 (Pa. Commw. Ct. 1996) (interpretation of Pennsylvania’s implied consent statute in a license suspension proceeding); Johnson v. Director of Revenue, 168 S.W.3d 139, 142 (Mo. Ct. App. 2005) (applying Missouri’s implied consent statute). 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).

In the instant case, the hearing officer concluded that the Department failed to meet its burden of proof because there was insufficient evidence that the DataMaster Operator advised Dauss in writing of the rights enumerated in Section 56-5-2950 and because the DataMaster Operator’s testimony that the machine was working properly was not corroborated by other evidence. For the reasons that follow, I conclude that the Department met its burden of proof on these questions and that the hearing officer’s conclusion to the contrary was clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.

Implied Consent Advisement

Section 56-5-2950 is widely called the “implied consent” statute,[3] and the rights set forth in Section 56-5-2950 are commonly referred to as “implied consent” rights.[4] However, according to Implied Consent Policy 8.12.5(D) of the South Carolina Law Enforcement Division (SLED),[5] 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, the DUI Advisement 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).

In the instant case, Officer Zymislicky provided the following testimony, without objection, regarding the implied consent advisement that she provided to Dauss:

I then read the DUI advisement, which I have a copy of here. The implied consent form and a copy was given to Mr. Dauss in writing immediately following.

While one Advisement of Implied Consent Rights form contains both the DUI advisement and the Felony DUI advisement and at least one other Implied Consent Rights form contains other advisements drafted by SLED,[6] Officer Zymislicky specified that it was the DUI advisement that she read to Dauss. She did not testify that she read the Felony DUI advisement or any other specific advisement to Dauss. Significantly, the hearing officer included in his order a finding of fact stating “The Respondent was read a DUI advisement, and a copy of this advisement was given to the Respondent.” Officer Swarthout testified that he arrested Dauss for DUI. He never testified that he arrested Dauss for Felony DUI or for any other violation. Nothing in the record even suggests that Officer Zymislicky either read the wrong advisement or misunderstood any of the facts relevant to determining which advisement to read. Therefore, the hearing officer had no reason to question which advisement Officer Zymislicky had selected to provide to Dauss. See, e.g., S.C. Nat’l Bank v. Florence Sporting Goods, Inc., 241 S.C. 110, 115-16, 127 S.E.2d 199, 202 (1962) (absent proof to contrary, public officers are presumed to have properly discharged duties of their offices and to have faithfully performed duties with which they are charged).

Counsel for Dauss neither cross-examined Officer Zymislicky nor otherwise impeached her as a witness. Neither did he present evidence contradicting her testimony, and nothing in the record is remotely inconsistent with it. Additionally, because Officer Zymislicky is a police officer and a certified DataMaster operator, her testimony is worthy of reliance. See, e.g., Mackey v. Montrym, 443 U.S. 1, 14 (1979) (in a case involving the implied consent law of Massachusetts, the risk of erroneous observation or deliberate misrepresentation of the facts by a law enforcement officer in the ordinary case seemed “insubstantial”). While the Advisement of Implied Consent Rights form was not introduced into evidence at the hearing, Officer Zymislicky testified that she had a copy of the form with her. Officer Swarthout testified that he had the form, as well as the DataMaster room videotape, with him at the hearing. Therefore, the hearing officer knew that the form and the videotape were available for review if he had any concern about the adequacy of Officer Zymislicky’s testimony. Based on the foregoing, I conclude that the Department carried its burden of proving that Officer Zymislicky properly advised Dauss in writing of the rights enumerated in Section 56-5-2950.

Corroboration of Testimony

The Department argues that the hearing officer erred when he disregarded Officer Zymislicky’s sworn testimony on whether the DataMaster machine was properly working simply because the testimony was not corroborated by other evidence. I agree.

Zymislicky testified without objection that the DataMaster machine conducted internal tests indicating that the machine was working properly. She also testified that the breath alcohol analysis test report ticket showed verification of the machine’s internal testing and its indication that it was working properly. Further, Officer Zymislicky’s testimony was not contradicted, and nothing in the record is remotely inconsistent with it. Moreover, Officer Zymislicky was neither cross-examined regarding this testimony nor otherwise impeached as a witness. Because Officer Zymislicky is a police officer and a certified DataMaster operator, her testimony is worthy of reliance. For these reasons, the hearing officer erred by disregarding Officer Zymislicky’s testimony. See, e.g., Cheatham v. Gregory, 227 Va. 1, 313 S.E.2d 368, 370 (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 . . . .”); Elwood Constr. Co. v. Richards, 265 S.C. 228, 234, 217 S.E.2d 769, 771 (1975) (“[W]hile it is true that the court does not always have to accept uncontradicted evidence as establishing the truth, the same should be accepted unless there is reason for disbelief.”). In any event, Officer Swarthout testified that he had the breath alcohol analysis test report ticket with him at the hearing. Therefore, the hearing officer knew that it was available for review if he had any concern about the adequacy of Officer Zymislicky’s testimony.

Based on the foregoing, the hearing officer’s conclusion that the Department failed to carry its burden of proof was clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record. Because the resolution of this issue is dispositive, this Court need not address Appellant’s remaining argument. See Commander Health Care Facilities, Inc. v. S.C. Dep’t of Health & Envtl. Control, 370 S.C. 296, 634 S.E.2d 664 (Ct. App. 2006) (citing Whiteside v. Cherokee County Sch. Dist. No. One, 311 S.C. 335, 428 S.E.2d 886 (1993)) (declining to address remaining argument after resolving dispositive issue).

ORDER

IT IS THEREFORE ORDERED that that the Final Order and Decision of the DMVH is REVERSED and the Department’s suspension of Dauss’s driver’s license is reinstated.

AND IT IS SO ORDERED.

______________________________

November 1, 2007 JOHN D. GEATHERS

Columbia, South Carolina Administrative Law Judge



[1] The DMVH hearing transcript contains two different spellings of this police officer’s surname, and the order contains a third spelling. It is unclear from the record which spelling is correct.

[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] 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).

[4] 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”).

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

[6] See Ronnie M. Cole & James B. Huff, Handling Traffic Cases in South Carolina 341-342 (Candice Koopman Lockman ed., 4th ed. 2005) (showing DUI Advisement and Felony DUI Advisement on same form and other advisements on a separate form).


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