OF THE CASE
This matter is an appeal by Jonas Lonzell Scott, Jr. (“Scott”)
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).
Scott claims that the DMVH erroneously upheld his driver’s license suspension.
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 affirmed.
On November 26, 2006, while traveling west on Rice
Avenue Extension, Sergeant Terry Davis (“Officer Davis”) of the City of Union
Public Safety Department observed Scott’s vehicle traveling east. As the
vehicle approached, Officer Davis observed Scott’s vehicle come toward and
subsequently cross the yellow center line of the road. Soon thereafter, Officer
Davis witnessed Scott’s vehicle turn across a lane in front of another vehicle,
causing the other vehicle to apply its brakes. Officer Davis initiated a traffic
stop. As he approached Scott’s vehicle, Officer Davis noticed a strong odor of
alcohol coming from the vehicle. He also noticed that Scott appeared to have
very glassy eyes. Officer Davis asked Scott to step from his vehicle at which
time he (Officer Davis) read Scott his Miranda rights and asked Scott to
perform several field sobriety tests. Scott performed poorly on the tests.
Officer Davis arrested Scott for driving under the influence (“DUI”) and “read
his DUI advisement” See (R. at 5). Officer Davis then transported Scott
to the Union County police department where he was again read his Miranda
rights. Officer Davis read Scott his implied consent form, a copy of which was
then given to Scott. After observing Scott for twenty (20) minutes, Scott stated
that he would not submit to a breath test. Based on this refusal, Officer Davis
issued Scott a Notice of Suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (2006).
Thereafter, pursuant to S.C. Code Ann. § 56-5-2951(B)(2)
(2006), Scott filed a request for an administrative hearing to challenge the
suspension. An administrative hearing was held on January 7, 2007. Officer Davis
appeared at the hearing on behalf of the Department, but was not assisted by
counsel. Scott was represented by his attorney at the hearing.
the hearing, Officer Davis testified that he read Scott “his DUI advisement,” which
was subsequently clarified as being a “short version” or “road version” of the implied
consent advisement. He also introduced into evidence a completed copy of the SLED-issued
“Driving Under the Influence Advisement” form. The advisement form was signed
by Officer Davis and by Scott. Scott’s attorney did not present any evidence at
the hearing, but contended that the “short form” of the implied consent rights
was inadequate and thus did not comply with the requirements of S.C. Code Ann.
§ 56-5-2950 (2006).
19, 2007, the DMVH hearing officer issued a Final Order and Decision, in which he
found the following:
I conclude as a
matter of law that the Petitioners have met the burden of proof. The Respondent
was lawfully arrested for driving under the influence; the Respondent was read
the appropriate Implied Consent Advisement; and the Respondent refused to
submit to a breath test. A copy of the appropriate Implied Consent Advisement
was entered in as an exhibit. There was no testimony that the Respondent was
given a copy of the advisement in writing; however, I find no prejudice to
it error for the DMVH hearing officer to conclude that Officer Davis complied
with the requisite implied consent procedures as set forth by S.C. Code Ann. § 56-5-2950
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).
pursuant to the APA, this Court’s review is limited to deciding whether the
DMVH’s Final Order and Decision is unsupported by substantial evidence or is affected
by an error of law. Bass v. Kenco Group, 366 S.C. 450, 457, 622 S.E.2d
577, 581 (Ct. App. 2005). Substantial evidence is not a mere scintilla of
evidence, nor the evidence viewed blindly from one side of the case, but is
evidence which, considering the record as a whole, would allow reasonable minds
to reach the conclusion the agency reached in order to justify its action. Hargrove
v. Titan Textile Co., 360 S.C. 276, 289, 599 S.E.2d 604, 611 (Ct. App.
2004). The possibility of drawing two inconsistent conclusions from the
evidence does not prevent the agency’s findings from being supported by substantial
evidence. Id. at 290, 599 S.E.2d at 611. The party challenging an
agency’s decision has the burden of proving convincingly that the agency’s
decision is unsupported by substantial evidence. Waters v. S.C. Land Resources Conservation Comm’n, 321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996).
Scott argues that the DMVH hearing officer erred in finding that the South
Carolina Department of Motor Vehicles and Union Department of Public Safety
(“Respondents”) met their burden of proof because the Record is devoid of
testimony that he was given the implied consent advisement in writing.
Code Ann. § 56-5-2950(a) (2006) addresses implied consent to testing. It
provides, in pertinent part:
A person who drives a motor vehicle in
this State is considered to have given consent to chemical tests of his breath,
blood, or urine for the purpose of determining the presence of alcohol or drugs
or the combination of alcohol and drugs if arrested for an offense arising out
of acts alleged to have been committed while the person was driving a motor
vehicle while under the influence of alcohol, drugs, or a combination of
alcohol and drugs. A breath test must be administered at the direction of a
law enforcement officer who has arrested a person for driving a motor vehicle
in this State while under the influence of alcohol, drugs, or a combination of
alcohol and drugs.
Section 56-5-2950(a) continues:
No tests may be
administered or samples obtained unless the person has been 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
S.C. Code Ann. § 56-5-2950 (2006).
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 Advisement; and (8) Shooting Under
the Influence 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).
Respondents essentially contend that Officer Davis’ testimony at the hearing
constituted prima facie evidence that Scott was advised in writing of his
Section 56-5-2950 rights. According to the Respondents, because Scott did not
present any evidence to refute this evidence, rescission of Scott’s suspension
is not warranted. I agree.
prima facie evidence is offered to show that a motorist was advised in writing
of the rights enumerated in Section 56-5-2950, the burden shifts to the
motorist to produce evidence showing that he was not so advised. 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); Johnson v. Director of Revenue, 168
S.W.3d 139, 142 (Mo. Ct. App. 2005). 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).
the Respondents presented prima facie evidence to show that Scott was given the
DUI Advisement in writing. In his testimony, Officer Davis indicated that Scott
“was read his implied consent. He was given a copy of it and the
Datamaster machine was time stamped.” (R. at 7) (emphasis added). Furthermore,
as evidenced by his signature on the SLED-issued “Driving Under the Influence
Advisement” form, it is highly reasonable to conclude that Scott was given the
same in writing. See (R. at 30). Thus, because the Respondents presented
prima facie evidence to show that Scott was advised in writing of the rights
enumerated in Section 56-5-2950, the burden shifted to Scott to present
evidence showing that he was not so advised. Scott did not present any such
assuming, arguendo, that Scott was not given a written copy of the form,
it remains likely that his suspension would be upheld. In Taylor v. S.C.
Dep’t. of Motor Vehicles, 368 S.C. 33, 627
S.E.2d 751, (Ct. App. 2006), a motorist’s drivers license was suspended
after he refused to submit to a blood test after being arrested for Driving Under
the Influence. The arresting officer read the implied consent advisement but
neglected to provide a written copy of the form to the motorist. In upholding
the suspension, the Court concluded that the motorist was not prejudiced by the
fact that the arresting officer did not provide a written copy of the
advisement. See Taylor, 368 S.C. at 38, 627 S.E.2d at 753. Notably, the Court
stated that “a violation of section 56-5-2950 without resulting prejudice will
not lead to a suppression of the evidence obtained pursuant to this section.” Taylor, 627 S.E.2d at 754.
Here, as in Taylor, Scott does not argue that he did
not receive the implied consent rights, or that he would have provided a blood
test if he had received the same in writing. Id. In other words, it is
clear that Scott was not prejudiced. Thus, even if Officer Davis failed to
provide Scott a written copy of his implied consent rights, I find that the
DMVH’s decision should be affirmed.
further contends that he was unlawfully arrested and detained because Office
Davis read a “short form” of the implied consent advisement. I disagree. Scott
was read his implied consent advisement twice, once at the time of detainment
and once at the police department. See (R at 5, 7). Scott was also
given a copy of the form as evidenced by his signature. See (R. at 30). Overall,
I find that there is substantial evidence in the Record that Officer Davis
complied with the procedures required by §56-5-2950. Even if, as Scott
contends, Officer Davis’ use of the “short form” advisement is deemed to be
inadequate, I find that the suspension would nevertheless be upheld based upon
the principles set forth in Taylor, supra.
based on the foregoing, the DMVH hearing officer’s Final Order and Decision
must be affirmed.
is hereby ordered that the DMVH’s Final Order and Decision is AFFIRMED.
AND IT IS SO ORDERED.
John D. McLeod
November 26, 2007
Columbia, South Carolina