Saturday, November 22, 2014

SC Administrative Law Court Decisions

CAPTION:
SCDMV vs. Andrew Moseley Tash

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Appellants:
Mount Pleasant Police Department and South Carolina Department of Motor Vehicles

Respondent:
Andrew Moseley Tash
 
DOCKET NUMBER:
06-ALJ-21-0907-AP

APPEARANCES:
n/a
 

ORDERS:

ORDER

STATEMENT OF THE CASE

The South Carolina Department of Motor Vehicles (Department) appeals from a Final Order and Decision of the South Carolina Division of Motor Vehicle Hearings (DMVH). The DMVH issued its order 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 The Department claims that the DMVH hearing officer erroneously rescinded the suspension of the driver’s license of Andrew Moseley Tash. 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 DMVH order is reversed.

BACKGROUND

On July 8, 2006, Officer Andrew Harris of the Mount Pleasant Police Department arrested Tash for driving under the influence (DUI) and transported him to the Mount Pleasant Police Department. Officer Eric Postell, a certified DataMaster operator, administered a breath test for Tash after reading to him from the Advisement of Implied Consent Rights form and providing a copy of the form to Tash. Tash gave a breath sample that showed a .16 percent blood alcohol concentration. Based on the breath test result, Officer Postell issued Tash 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), Tash requested an administrative hearing to challenge the suspension. On November 6, 2006, the DMVH held an administrative hearing. Officers Harris and Postell appeared at the hearing on behalf of the Department but were not assisted by counsel.

On November 13, 2006, the DMVH hearing officer served the parties with her order rescinding Tash’s suspension based on her conclusion that the Department failed to meet its burden of proof:

I find that Officer Postell stated that he read the Implied Consent Advisement to Respondent, but offered no evidence to corroborate what advisement was given. There was no evidence of what rights were given to Respondent. There are several versions of the Implied Consent Advisement and without evidence of such; [sic] there is no way to determine if the Respondent was properly advised of the proper rights. He further testified that a written copy was given to Respondent, but that was not offered at the hearing.

Also, Officer Postell did not offer any evidence other than a statement saying the machine was working properly. Without some corroborating evidence (i.e. DataMaster Ticket) or document I cannot conclude from the testimony given that the machine was working properly.

Therefore, for these reasons, I conclude as a matter of law that the Petitioner has not met its 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).[1]

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. See, e.g., S.C. Dep’t of Motor Vehicles v. Kirschmann, 06-ALJ-21-0185-AP (June 20, 2006). 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 Tash 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,[2] and the rights set forth in Section 56-5-2950 are commonly referred to as “implied consent” rights.[3] However, according to Implied Consent Policy 8.12.5(D) of the South Carolina Law Enforcement Division (SLED),[4] 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 Postell provided the following testimony, without objection, regarding the implied consent advisement that he provided to Tash:

He was then read and given a copy of the Advisement of Implied Consent Rights as stated in SLED policies Section 56-5-2950.

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,[5] Officer Postell specified that it was the advisement as stated in Section 56-5-2950 that he provided to Tash.[6] He did not testify that he provided the Felony DUI advisement or any other specific advisement to Tash. Further, Officer Harris testified that he arrested Tash for DUI. He never testified that he arrested Tash for Felony DUI or for any other violation. Moreover, nothing in the record even suggests that Officer Postell 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 Postell had selected to provide to Tash. 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 Tash neither cross-examined Officer Postell nor otherwise impeached him as a witness. Neither did he present evidence contradicting Officer Postell’s testimony, and nothing in the record is remotely inconsistent with it. Additionally, because Officer Postell is a police officer and a certified DataMaster operator, his 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”). Based on the foregoing, I conclude that the Department carried its burden of proving that Officer Postell properly advised Tash in writing of the rights enumerated in Section 56-5-2950.

Corroboration of Testimony

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

Officer Postell testified without objection that the DataMaster machine was working properly as indicated by the three lines on the DataMaster ticket and by no error message being given. Further, Officer Postell’s testimony was not contradicted, and nothing in the record is remotely inconsistent with it. Moreover, Officer Postell was neither cross-examined regarding this testimony nor otherwise impeached as a witness. Because Officer Postell is a police officer and a certified DataMaster operator, his testimony is worthy of reliance. For these reasons, the hearing officer erred by disregarding Officer Postell’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.”).

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 arguments. 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 Tash’s driver’s license is reinstated.

AND IT IS SO ORDERED.

______________________________

November 6, 2007 JOHN D. GEATHERS

Columbia, South Carolina Administrative Law Judge



[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] 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).

[3] 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”).

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

[5] 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).

[6] Although Officer Postell misnamed Section 56-5-2950 as a SLED policy, there appear to be no SLED policies with that number. See Implied Consent Policies and Procedures and Implied Consent Regulations at http://www.sled.sc.gov. Therefore, it is more likely than not that Officer Postell meant to reference Section 56-5-2950 from the South Carolina Code.


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