Sunday, September 21, 2014

SC Administrative Law Court Decisions

CAPTION:
Jonas Lonzell Scott, Jr. vs. SCDMV, et al

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Appellant:
Jonas Lonzell Scott, Jr.

Respondents:
South Carolina Department of Motor Vehicles and Union Department of Public
Safety
 
DOCKET NUMBER:
07-ALJ-21-0085-AP

APPEARANCES:
n/a
 

ORDERS:

ORDER

STATEMENT 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.

BACKGROUND

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.

At 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).

On January 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 respondent.

See (R. at 27).

Scott now appeals.

ISSUE ON APPEAL

1.      Was 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 (2006)?

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 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).[1] 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 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).

Thus, 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).

DISCUSSION

Primarily, 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.

S.C. 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 Program.

S.C. Code Ann. § 56-5-2950 (2006).

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 SLED Implied Consent Policy 8.12.5(D),[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, 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).

The 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.

Once 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).

Here, 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 evidence.

Moreover, 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.

Scott 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.

Accordingly, based on the foregoing, the DMVH hearing officer’s Final Order and Decision must be affirmed.

ORDER

It is hereby ordered that the DMVH’s Final Order and Decision is AFFIRMED.

AND IT IS SO ORDERED.

______________________________

John D. McLeod

Administrative Law Judge

November 26, 2007

Columbia, South Carolina



[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); Bacote, 331 S.C. at 329, 503 S.E.2d at 162; 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”); but see State v. Cuevas, 365 S.C. 198, 201, 616 S.E.2d 718, 720 (Ct. App. 2005) (“Officers gave Cuevas the implied consent warnings for felony DUI . . .”).

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


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