OF THE CASE
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 Administrative Law Court (“ALC”) has jurisdiction to review 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.
November 11, 2006, Trooper T. Kirkendoll of the South Carolina Highway Patrol was
working a safety checkpoint in Spartanburg County. The Respondent, Henry B.
Senn, III (“Senn”), approached the checkpoint and was stopped and asked to exit
his vehicle. Senn was unsteady on his feet and had a strong odor of alcohol on
his breath. Senn had difficulty performing field sobriety tests. Trooper
Kirkendoll transported Senn to the Spartanburg County Detention Center for a breath test. Upon reaching the Spartanburg County Detention Center, Trooper
Kirkendoll, who is a certified DataMaster operator, reviewed the implied
consent form with Senn. As he did so, he asked Senn if he was going to submit
to a breath test. Senn refused. Based on this refusal, he issued Senn a notice
of suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (2006).
to S.C. Code Ann. § 56-5-2951(B)(2), Senn filed a request for an administrative
hearing to challenge the suspension. The DMVH held an administrative hearing
on May 2, 2006. At the hearing, Trooper Kirkendoll testified that he detained
Senn at a safety checkpoint. However, he did not specifically testify about
the circumstances surrounding the checkpoint or how the checkpoint was
10, 2007, the DMVH Hearing Officer issued a Final Order and Decision rescinding
Senn’s suspension. The DMVH Hearing Officer found that “[t]here was no testimony
to show that any [checkpoint] guidelines were followed. There was no testimony
as to how the checkpoint was conducted. The officer only testified that the
Respondent was stopped at a checkpoint.” The Department now appeals.
the DMVH Hearing Officer err by rescinding Senn’s suspension based on Trooper
Kirkendoll’s failure to testify regarding the circumstances surrounding 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(A) (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 to review agency decisions is
provided by S.C. Code Ann. §1-23-380(A)(5) (Supp. 2006). See S.C. Code
Ann. § 1-23-380(B) (Supp. 2006) (directing Administrative Law Judges to conduct
a review “in the same manner prescribed in [§1-23-380](A)”). This section
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
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).
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 Res. Conservation Comm’n, 321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996).
matters involving the assessment of civil penalties, the imposition of
sanctions, or the enforcement of administrative orders, the agency shall
have the burden of proof.” ALC Rule 29(B). The South Carolina Supreme Court
has referred to an administrative suspension of a motorist’s driver’s license
as a “sanction.” See State v. Price, 333 S.C. 267, 272,
510 S.E.2d 215, 218 (1998). Thus, the DMVH Hearing Officer properly held that
the ultimate burden of proof is on the Department. See Stephen P.
Bates, The Contested Case Before the ALJD, in South
Carolina Administrative Practice & Procedure 161, 200-01 (Randolph R.
Lowell & Stephen P. Bates eds., 2004) (discussing generally the burden of
proof in administrative enforcement cases); Alex Sanders & John S. Nichols, Trial Handbook for South Carolina Lawyers § 9.3 at 372-74 (3d ed. 2005)
(discussing the burden of proof in civil actions).
resolve the issue currently before the court, however, a careful analysis of
the concept of “burden of proof” is required. “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.
Sanders & Nichols, supra, § 9.1 at 369. 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. § 9.1 at 369. 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 (S.C. 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). Thus, once
the Department establishes a prima facie case of suspension for refusal, the
burden of production shifts to the motorist. See, e.g., Browning,
366 S.C. at 262, 621 S.E.2d at 392; Hadfield, 343 S.C. at 100, 538
S.E.2d at 274; S.C. Dep’t of Motor
Vehicles v. McLeod,
06-ALJ-21-0659-AP, 2007 WL 1219382, *4 (S.C. Admin. Law Ct., Apr. 4, 2007); Powers, 2007 WL 268784.
Prima Facie Case
As the South Carolina
Court of Appeals has held, the
requirements for suspension for refusal to
consent are: (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) refuse to submit to alcohol or drug testing.
S.C. Dep’t of
Motor Vehicles v. Nelson, 364 S.C. 514, 523, 613 S.E.2d 544, 549 (Ct. App.
2005) (citing S.C. Code Ann. §§ 56-5-2950, -2951). Notably, the Court of
Appeals in Nelson did not include any provision concerning the circumstances
surrounding the stop or detention prior to arrest as a required element that
must be affirmatively proven to enforce a suspension in a refusal case. Thus,
once the Department establishes a prima facie case by introducing evidence as
to the five elements listed in Nelson, including the fact of the arrest, 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) (Supp. 2006).
statutory framework suggests that the question of the lawfulness of the stop or
detention is a defense to suspension, and that proof of lawfulness is
not an essential element of a prima facie case to enforce a suspension. Rather
than requiring the Department to establish the lawfulness of the arrest or
detention as an essential element in its case in chief to enforce a suspension,
the legislature provided a procedure for the motorist to challenge the
statutorily required suspension by contesting the validity of his suspension in
an administrative hearing, the scope of which may include, if raised by the
motorist, whether he was “lawfully arrested or detained.” See S.C. Code Ann. §
56-5-2951(F)(1) (emphasis added).
court therefore concludes that once the Department establishes a prima facie
case of suspension for refusal under S.C. Code Ann. § 56-5-2950 by presenting
evidence as to each of the statutory elements
as defined in Nelson, the burden of going forward shifts to the
motorist. See S.C. Dep’t of Motor Vehicles v. McLeod, 06-ALJ-21-0659-AP, 2007 WL 1219382 (S.C. Admin. Law Ct., Apr. 4, 2007). Under S.C. Code Ann. § 56-5-2951(F), a challenge to the validity of
the suspension may include evidence, by cross-examination or otherwise,
that the motorist was unlawfully arrested or detained. Adjudication of
this defense is properly within the scope of the hearing under S.C. Code Ann. §
court’s conclusion as to this issue is consistent with the common law of this
state. As stated above, Nelson requires the Department to prove that
the motorist was 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. The common law rebuttably presumes that a public official,
including a law enforcement officer, acts properly and lawfully in discharging
his duties. See S.C. Nat’l Bank v. Florence Sporting Goods, Inc.,
241 S.C. 110, 115-16, 127 S.E.2d 199, 202 (1962) (“In
the absence of any proof to the contrary, public officers are presumed to have properly
discharged the duties of their offices and to have faithfully performed the duties with which they are
charged.”); 30 S.C. Jur. Evidence § 29 (2006); see also Felder v. Johnson, 127 S.C. 215, 217, 121 S.E. 54, 54 (1924) (“In the
absence of evidence to the contrary, courts are bound to presume that public
officers have properly discharged their duties and that their acts are in all
respects regular.”); State ex rel. George v. City Council of Aiken, 42
S.C. 222, 241, 20 S.E. 221, 228 (1894) (“It is presumed that public officials
will discharge the duties of office in a lawful manner, until the contrary
appears.”). Requiring the Department to affirmatively prove that the arresting
officer acted lawfully in arresting or detaining the motorist would fly in the
face of this evidentiary presumption. By contrast, requiring the motorist –
once a prima facie case has been established – to come forward with some evidence
challenging the lawfulness of the arrest or detention is wholly consistent with
the common law’s recognition that the presumption of lawfulness can be
analyzing this issue, it is important to remember that the case at bar is a refusal case.
This is not a trial in regard to the guilt
or innocence of the defendant on a DUI charge. Rather, the gravamen of the
administrative hearing is a determination of the efficacy and applicability of
the implied consent law. The query posited to the administrative hearing
officer is: did the person violate the implied consent law.
S.C. Dep’t of
Motor Vehicles v. Nelson, 364 S.C. 514, 525, 613 S.E.2d 544, 550 (Ct. App. 2005). Thus, the question in the hearing below was not whether Senn is guilty of
DUI; nor, since Senn refused testing, was the issue whether the results of any
chemical testing should be admitted into evidence. Cf. Peake v. S.C.
Dep’t of Motor Vehicles, Op. No. 4313 (Ct. App. filed Nov. 27, 2007)
(rescinding motorist’s suspension because the Department failed to lay the
proper foundation for admission of chemical testing results by establishing
that the law enforcement officer met the statutory requirements for obtaining a
blood, rather than a breath, test); State v. Frey, 362 S.C. 511, 608
S.E.2d 874 (Ct. App. 2004) (holding in a criminal DUI case that the State is
required to offer some evidence to establish compliance with § 56-5-2950’s
requirement that a blood sample be collected by qualified medical personnel); State
v. Parker, 271 S.C. 159, 245 S.E.2d 904 (1978) (holding that the State must
lay a proper foundation for the admission of breath test results); Ex Parte Horne,
303 S.C. 30, 397 S.E.2d 788 (Ct. App. 1990) (holding that the foundational
requirements for admission of chemical test results do not apply in a refusal
case). In a refusal case, “[t]he Department is required by the implied consent
law to suspend for 90 days the driver’s license of a person arrested for
driving under the influence who refuses the request of a law enforcement
officer to submit to a breath test.” Horne, 303 S.C. at 31, 397 S.E.2d
the Department established that it complied with the implied consent law by
suspending Senn’s license for ninety days because he was arrested for driving
under the influence and refused to submit to a breath test. See Nelson,
364 S.C. at 523, 613 S.E.2d at 549; Horne, 303 S.C. at 31, 397 S.E.2d at
789. It was therefore incumbent upon Senn to meet the Department’s prima facie
case by coming forward with evidence establishing one of the defenses within
the scope of the hearing pursuant to § 56-5-2951(F) – in this case, that the
stop was unlawful. The DMVH Hearing Officer erred in rescinding Senn’s
suspension because the Department failed affirmatively to establish the
lawfulness of the detention as part of its case in chief when the motorist
presented no evidence whatsoever that the safety checkpoint was
constitutionally defective. Senn’s attorney cross-examined Trooper Kirkendoll
but did not inquire into the circumstances of the checkpoint. Senn presented
no witnesses and did not testify. Senn’s attorney raised the issue of the
constitutionality of the safety checkpoint during closing argument, having
failed to present any evidence whatsoever calling the lawfulness of the stop into
question. Certainly, had the stop failed to comply with constitutional
requirements, then Senn’s suspension could be arguably invalid; however, there is absolutely no evidence in the Record – much less substantial
evidence – that such was the case. The statutes and case law of this state do
not require the Department to anticipate and refute in its case in
chief every conceivable argument a motorist might raise as to the
lawfulness of his arrest or detention.
The DMVH Hearing Officer therefore erred in rescinding Senn’s suspension in the
absence of any evidence calling the lawfulness of the stop into question.
the foregoing reasons, it is
ORDERED that the DMVH’s Final Order and Decision is REVERSED and the Department’s
suspension of Senn’s driver’s license is reinstated.
IS SO ORDERED.
Paige J. Gossett
December 31, 2007
Columbia, South Carolina
Although the burden of production shifts to the
motorist to introduce evidence challenging the lawfulness of the stop or
detention, the burden of persuasion remains on the Department – once the
motorist has done so – to convince the Hearing Officer by a preponderance of
the evidence that the arrest was lawful.
South Carolina appellate courts have applied this
presumption to law enforcement officers. See, e.g., Steele v.
Atkinson, 14 S.C. 154 (1880) (applying presumption to a sheriff). The
South Carolina Supreme Court has held that city police officers fall within the
common law definition of “public officer.” See State v.
Crenshaw, 274 S.C. 475, 266 S.E.2d 61 (1980).