OF THE CASE
South Carolina Department of Motor Vehicles 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that the DMVH hearing officer erroneously rescinded the suspension of the driver’s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 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.
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
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. §
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
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.
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
The Department appeals
the DMVH order.
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). 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)
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
(d) affected by other error
(e) clearly erroneous in
view of the reliable, probative, and substantial evidence on the whole record;
(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).
in Implied Consent Cases
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 (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
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
reported alcohol concentration at the time of testing was fifteen
one-hundredths of one percent or more;
individual who administered the test or took samples was qualified pursuant to Section 56-5-2950;
tests administered and samples obtained were conducted pursuant to Section 56-5-2950;
machine was working properly.
S.C. Code Ann. §
Proof in Implied Consent Cases
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
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).
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); 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).
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
(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.
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).
Burden of Production
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
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).
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.
IT IS SO ORDERED.
December 20, 2007 JOHN
Columbia, South Carolina Administrative