OF THE CASE
This matter is an appeal by the South Carolina Department of
Motor Vehicles (“Department”) 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). The Department claims that the DMVH
erroneously rescinded the driver’s license suspension of Respondent Donald
Keith Porter (“Porter”). 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
reversed as set forth below.
On December 25, 2006, while stopped at a red light at
the Mathis Ferry Road and Highway 17 intersection in Mt. Pleasant, South Carolina, Officer Daniel P. Eckert (“Officer Eckert”) of the Mt. Pleasant Police
Department observed Porter’s vehicle stop at a green light. As an approaching
vehicle passed, Porter’s vehicle proceeded through the light and up Highway 17
North in “quick manner”. Soon thereafter, Officer Eckert witnessed Porter’s
vehicle repeatedly switch lanes and eventually run off the road. Officer Eckert
initiated a traffic stop. As he approached Porter’s vehicle, Officer Eckert
noticed empty beer cans in the back of Porter’s truck. Upon making contact with
Porter, Officer Eckert noticed a strong odor of alcohol coming from his person.
Officer Eckert asked Porter to step from his vehicle and subsequently told him
that he was under investigation for driving under the influence of alcohol.
Officer Eckert proceeded to read Porter his Miranda rights and asked Porter to perform
several sobriety tests. Porter consented. However, at the onset of the testing,
Porter expressed his desire not to engage in the testing and requested to speak
with his lawyer. At that time, Officer Eckert arrested Porter for Driving Under
the Influence and “read him his implied consent right[s].” (R. at 7). Officer
Eckert then transported Porter to the Mt. Pleasant Police Department where he
instructed Officer M. J. Johnson (“Officer Johnson”) to offer him a
Officer Johnson is certified DataMaster operator. Prior to
testing, Porter was again read his Miranda rights and informed that he was
being videotaped. Porter was also given a copy of the advisement of implied
consents rights and Officer Johnson read him the same. (R. at 9). Porter
subsequently refused to sign the implied consent advisement and again requested
to speak with his lawyer. He repeatedly refused to submit to any breath
testing. Based on this refusal, Officer Johnson issued Porter a Notice of Suspension
pursuant to S.C. Code Ann. § 56-5-2951(A) (2006), which Porter also refused to
pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (2006), Porter filed a request for
an administrative hearing to challenge the suspension. An administrative
hearing was held on February 5, 2007. Officers Eckert and Johnson appeared at
the hearing on behalf of the Department, but were not assisted by counsel.
Porter was represented by his attorney at the hearing.
the hearing, Officer Eckert testified that, after arresting Porter for DUI, he
read Porter “his implied consent right[s].” (R. at 7). Officer Johnson
testified that she gave Porter “a copy of the advisement of implied consent
rights…so that he could read along with me as I read them to him.” (R. at 9).
attorney did not introduce any evidence at the hearing. During his closing
statement, Porter’s attorney argued that Officer Johnson’s failure to offer
evidence as to which implied consent advisement was given to Porter warranted the
rescission of Porter’s suspension.
9, 2007, the DMVH hearing officer issued a Final Order and Decision, in which she
rescinded Porter’s suspension. In doing so, she explained that the Department
did not meet its “burden of proof in this case. Officer Johnson…provided
Respondent a copy of the Implied Consent Advisement…she did not specify which
Implied Consent Advisement she read to Respondent.” See (R. at 25). The
Department now appeals.
it error for the DMVH hearing officer to rescind Porter’s suspension on the
grounds that Officer Johnson failed to offer documentation to prove that the
proper implied consent advisement was given in writing?
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).
license to operate a motor vehicle upon South Carolina’s public highways is not
a property right, but is a mere privilege subject to reasonable regulations in
the interests of public safety and welfare. Sponar v. S.C. Dep’t of Pub.
Safety, 361 S.C. 35, 39, 603 S.E.2d 412, 415 (Ct. App. 2004) (quoting Summersell
v. S.C. Dep’t of Pub. Safety, 334 S.C. 357, 366, 513 S.E.2d 619, 624 (Ct.
App. 1999), vacated in part on other grounds, 337 S.C. 19, 522 S.E.2d
144 (1999)), cert. granted, (Nov. 17, 2005). Consistent with this
principle, S.C. Code Ann. § 56-5-2950(a) (2006) 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. § 56-5-2951(A) (2006), the driver’s license of a motorist who
refuses to submit to the testing required under Section 56-5-2950(a) must be immediately
suspended. However, under S.C. Code Ann. § 56-5-2951(B)(2) (2006), a motorist who has his
license so suspended may request an administrative hearing to challenge the
suspension. If such a hearing is requested, the scope of the hearing must be
limited to whether the person: (1) was lawfully arrested or detained; (2) was
advised in writing of the rights enumerated in Section 56-5-2950; and (3)
refused to submit to a test pursuant to Section 56-5-2950. S.C. Code Ann. §
56-5-2951(F) (2006); S.C. Dep’t of Motor Vehicles v. Nelson, 364 S.C.
514, 526, 613 S.E.2d 544, 550 (Ct. App. 2005). According to the South Carolina
Supreme Court, Section 56-5-2951(B)(2) hearings should be designed so as to
handle license revocation matters quickly. See State v.
Bacote, 331 S.C. 328, 333, 503 S.E.2d 161, 164 (1998).
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).
The Department argues that the DMVH hearing officer
erred by rescinding Porter’s suspension on the grounds that Officer Johnson
failed to submit any documentation to prove that the proper implied consent advisement
was given to Porter in writing. The Department essentially contends that Officer
Johnson’s testimony at the hearing constituted prima facie evidence that Porter
was advised in writing of his Section 56-5-2950 rights. According to the
Department, because Porter did not present any evidence to refute this evidence,
rescission of Porter’s suspension was 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).
the Department presented prima facie evidence to show that Porter was given the
DUI Advisement in writing. Officer Eckert testified that, after arresting
Porter for DUI, he read Porter “his implied consent right[s].” (R. at 7). Furthermore,
Officer Johnson testified that she gave Porter “a copy of the advisement of
implied consent rights…so that he could read along with me as I read them to
him.” (R. at 9). Lastly, Officer Johnson testified that she is “certified by
SLED to perform filed breath tests…” (R. at 9).
together, and in light of the fact that there is nothing in the record that
suggests that Officer Johnson gave Porter the wrong advisement, this testimony constituted prima facie evidence that Porter was given the DUI
Advisement in writing. See, e.g., Parker, 271 S.C. at
163-64, 245 S.E.2d at 906 (holding that a breath test operator’s testimony that
he had been certified by the South Carolina Law Enforcement Division constituted
prima facie evidence that the breath test was administered by a qualified
person in the proper manner); see also 29 Am. Jur. 2d Evidence § 203 (1994) (“In the absence of
evidence to the contrary, the law assumes that public officials have performed
their duties properly, unless the official act in question appears irregular on
Thus, because the Department presented prima facie
evidence to show that Porter was advised in writing of the rights enumerated in
Section 56-5-2950, the burden shifted to Porter to present evidence showing
that he was not so advised. Porter did not present any such evidence. Therefore,
the DMVH hearing officer erred by rescinding Porter’s suspension.
Furthermore, reversal of the DMVH hearing officer’s
Final Order and Decision is also warranted by the Court of Appeals’ recent decision
in Taylor, supra note 5. In Taylor, the Court of Appeals
held that a violation of Section 56-5-2950, without resulting prejudice, will
not lead to the suppression of evidence obtained pursuant to Section 56-5-2950. Taylor, 368 S.C. at 38, 627 S.E.2d at 754.
There is no evidence of prejudice to Porter in the
record here. Accordingly, for this reason as well, the DMVH hearing officer’s
Final Order and Decision must be reversed.
is hereby ordered that the DMVH’s Final Order and Decision is REVERSED and the
Department’s suspension of Porter’s driver’s license is reinstated.
AND IT IS SO ORDERED.
John D. McLeod
November 29, 2007
Columbia, South Carolina