Tuesday, September 30, 2014

SC Administrative Law Court Decisions

CAPTION:
James L. Gariepy vs. SCDMV, et al

AGENCY:
South Carolina Department of Motor Vehicles

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

Petitioners,

of whom South Carolina Department of Motor Vehicles is

Appellant,

vs.

James L. Gariepy,

Respondent.
 
DOCKET NUMBER:
06-ALJ-21-0911-AP

APPEARANCES:
n/a
 

ORDERS:

FINAL ORDER

STATEMENT OF THE CASE

The South Carolina Department of Motor Vehicles appeals from a Final Order and Decision of the South Carolina Division of Motor Vehicle Hearings (DMVH).[1] 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 The Department claims that the DMVH hearing officer erroneously rescinded the suspension of the driver’s license of Respondent James L. Gariepy. 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 Final Order and Decision of the DMVH is reversed.

BACKGROUND

On September 11, 2006, Police Officer Jason Brandon of the Mount Pleasant Police Department observed a black vehicle swerving within its lane of travel on Highway 17 South near Bowman, South Carolina. As Officer Brandon followed the vehicle, it abruptly changed lanes. Officer Brandon stopped the vehicle, which was driven by Gariepy, and observed a cooler in the vehicle’s back seat with two open containers of beer in it. Officer Brandon observed an odor of alcohol and also observed that Gariepy had bloodshot eyes and slurred speech. Officer Brandon then asked Gariepy to perform three field sobriety tests. Gariepy performed poorly on the tests. Officer Brandon arrested Gariepy for driving under the influence (DUI) and transported him to the Mount Pleasant Police Department.

Officer Michelle Johnson, a certified DataMaster operator, administered a breath test for Gariepy after reading to him from the Advisement of Implied Consent Rights form and providing a copy of the form to Gariepy. The process was videotaped. Gariepy gave a breath sample, and, based on the breath test result, Officer Johnson issued to Gariepy a Notice of Suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (2006).

Subsequently, pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (2006), Gariepy filed a request for an administrative hearing to challenge the suspension. On November 27, 2006, the Division of Motor Vehicle Hearings conducted an administrative hearing. Officers Brandon and Johnson appeared at the hearing on behalf of the Department but were not assisted by counsel. On December 1, 2006, the DMVH hearing officer served the parties with her order rescinding Gariepy’s suspension based on her conclusion that the Department failed to meets its burden of proof:

I find that Officer Johnson stated that she 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. The Implied Consent Advisement was not offered into evidence.

Also, Officer Johnson did not offer any evidence other than a statement saying the machine printed three lines. 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 the DMVH order.

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). 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).[2] 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).

DISCUSSION

General Law in Implied Consent Cases

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 (2006) and S.C. Code Ann. § 56-5-2951 (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) the machine was working properly.

S.C. Code Ann. § 56-5-2951(F) (2006).

Burden of Proof in Implied Consent Cases

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). “The term ‘burden of proof’ has been used to describe two related but distinct concepts: the burden of production and the burden of persuasion.” 29 Am. Jur. Evidence § 155 (1994); see also Dir., Office of Workers’ Comp. Programs, Dep’t of Labor v. Greenwich Collieries, 512 U.S. 267, 272 (1994). The burden of persuasion refers to the duty to prove the truth of an issue by the quantum of evidence the law demands in the case in which the issue arises.[3] Alex Sanders & John S. Nichols, Trial Handbook for S.C. Lawyers, § 9.1 at 369 (2d ed. 2001). The burden of production, or burden of going forward with the evidence, refers to the obligation of a party to proceed with evidence, at any stage of the trial, to make or meet a prima facie case. Id. 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 Exch., Fort Jackson, 207 S.C. 258, 272, 35 S.E.2d 838, 844 (1945).

As a trial progresses, the burden of production may shift from one side to the other as the respective parties present evidence. Sanders & Nichols, supra, § 9.1 at 370. The burden of persuasion, however, does not generally shift. Id. at 369.

South Carolina courts have recognized that once a party establishes a prima facie case, the burden of production shifts to the opposing party. See Browning v. Browning, 366 S.C. 255, 262, 621 S.E.2d 389, 392 (Ct. App. 2005); Daisy Outdoor Adver. Co., Inc. v. S.C. Dep’t of Transp., 352 S.C. 113, 118, 572 S.E.2d 462, 465 (Ct. App. 2002);[4] Hadfield v. Gilchrist, 343 S.C. 88, 100, 538 S.E.2d 268, 274 (Ct. App. 2000); S.C. Dep’t of Motor Vehicles v. Powers, 06-ALJ-21-0578-AP, 2007 WL 268784 (Admin. Law Ct., Jan. 10, 2007). Moreover, many other state courts have held in the specific context of driver’s license suspension hearings that the burden shifts to the motorist once the state agency establishes a prima facie case. See Powers at n.4 (cataloguing such cases).

The Department’s prima facie case in an implied consent hearing consists of those elements included as a prerequisite to license suspension under section 56-5-2951(A), which may be enumerated as follows:

(1) a person;

(2) operating a motor vehicle;

(3) in South Carolina;

(4) be arrested for an offense arising out of acts alleged to have been committed while the person was driving under the influence of alcohol, drugs, or both; and

(5) refuses to submit to alcohol or drug testing or has an alcohol concentration of fifteen one-hundredths of one percent or more.

See S.C. Code Ann. § 56-5-2951(A) (2006) (“The Department of Motor Vehicles must suspend the driver’s license, permit, or nonresident operating privilege of . . . a person who drives a motor vehicle and refuses to submit to a test provided for in Section 56-5-2950 or has an alcohol concentration of fifteen one-hundredths of one percent or more.”); S.C. Dep’t of Motor Vehicles v. Nelson, 364 S.C. 514, 523, 613 S.E.2d 544, 549 (Ct. App. 2005) (citing §§ 56-5-2950, -2951) (listing elements of Department’s prima facie case of suspension for refusal to consent to testing and excluding items listed in S.C. Code Ann. § 56-5-2951(F), which are cited as being properly within scope of administrative hearing); S.C. Dep’t of Motor Vehicles v. McLeod, 06-ALJ-21-0659-AP, 2007 WL 1219382 (Admin. Law Ct., April 4, 2007) (citing Nelson and holding that the required elements to establish prima facie case of suspension for refusal to consent to testing are not coextensive with items listed in S.C. Code Ann. § 56-5-2951(F)); cf. State v. Cuccia, 353 S.C. 430, 578 S.E.2d 45 (Ct. App. 2003) (listing elements of statutory case for suspension under S.C. Code Ann. § 56-1-286 and excluding implied consent rights listed in section 56-1-286(I)(1)-(5)); but cf. Summersell v. S.C. Dep’t of Pub. Safety, 334 S.C. 357, 369, 513 S.E.2d 619, 625 (Ct. App. 1999) (addressing previous version of S.C. Code Ann. § 56-5-2950 and suggesting that Department must affirmatively prove all of “scope of the hearing” issues as part of its case in chief), vacated in part on other grounds, 337 S.C. 19, 522 S.E.2d 144 (1999).

Once the Department establishes a prima facie case by introducing evidence as to the five elements listed above, the burden of production shifts to the motorist to present evidence, by cross-examination or otherwise, that supports one or more of the statutory defenses permitted by S.C. Code Ann. § 56-5-2951(F).

Gariepy’s Burden of Production

In the instant case, the hearing officer concluded that the Department failed to meet its burden of proof based on insufficient evidence that the DataMaster Operator advised Gariepy of the rights enumerated in section 56-5-2950 and that the breathalyzer machine was working properly. However, these are issues on which Gariepy had the burden of production because they were not elements of the Department’s prima facie case. Rather, they were affirmative defenses permitted by section 56-5-2951(F). Because Gariepy presented no evidence on either issue, the Department was not required to present evidence on those issues.[5]

The hearing officer’s conclusion that the Department failed to carry its burden of proof was based on an error of law and prejudiced substantial rights of the Department under S.C. Code Ann. 1-23-380 (Supp. 2006). Therefore, this Court must reverse the DMVH order. Because the resolution of this issue is dispositive, this Court need not address Appellant’s remaining arguments. See Commander Health Care Facs., 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 the Final Order and Decision of the DMVH is REVERSED and the Department’s suspension of Gariepy’s driver’s license is reinstated. IT IS FURTHER ORDERED that the caption of this matter is amended as reflected above.

AND IT IS SO ORDERED.

______________________________

December 20, 2007 JOHN D. GEATHERS

Columbia, South Carolina Administrative Law Judge



[1] Because a Notice of Appeal has not been filed on behalf of the Mount Pleasant Police Department, the caption of this matter is amended as reflected above.

[2] 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).

[3] In an administrative hearing, the burden of proof is generally a preponderance of the evidence. Anonymous (M-156-90) v. State Bd. of Med. Exam’rs, 329 S.C. 371, 375, 496 S.E.2d 17, 19 (1998).

[4] While the Daisy court stated that the “burden of proof” shifts once the Department establishes a prima facie case, it appears that the court used this term in its secondary sense referring to the burden of production, not the strict sense referring to the burden of persuasion. See Sanders & Nichols, supra, § 9.1 at 369 (discussing two uses of the term “burden of proof,” including the secondary sense meaning the burden of going forward with the evidence); Daisy, 352 S.C. at 118, 572 S.E.2d at 465 (“Daisy had the burden of coming forward with evidence . . . .”).

[5] It is true that evidence that the machine was working properly is required as part of the foundation to be laid for the introduction of the breath test results. See State v. Parker, 271 S.C. 159, 163, 245 S.E.2d 904, 906 (1978) (setting forth items, including proper working order of machine, necessary for laying a foundation for introduction of breath test results). However, Gariepy’s counsel made no contemporaneous objection to the Department’s failure to lay a foundation, and the hearing officer admitted the breath test results into evidence. Because Gariepy has not appealed this evidentiary ruling, it is the law of the case. See, e.g., Charleston Lumber Co. v. Miller Housing Corp., 338 S.C. 171, 175, 525 S.E.2d 869, 871 (2000) (finding that an unappealed ruling, right or wrong, is the law of the case and requires affirmance).


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