OF THE CASE
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claims that the DMVH hearing officer erroneously rescinded the suspension of the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.
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
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
The Department appeals.
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 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).
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).
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 &
-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
S.C. Code Ann. §
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).
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
However, according to Implied Consent Policy 8.12.5(D) of the South Carolina
Law Enforcement Division (SLED), 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
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.
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, Officer Postell specified that it was the advisement as stated in Section
56-5-2950 that he provided to Tash.
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
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.
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.
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.”).
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).
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.
IT IS SO ORDERED.
November 6, 2007 JOHN
Columbia, South Carolina Administrative