Tuesday, September 30, 2014

SC Administrative Law Court Decisions

CAPTION:
SCDMV vs. Henry B. Senn, III

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Appellant:
South Carolina Department of Motor Vehicles

Respondents:
Henry B. Senn, III
 
DOCKET NUMBER:
07-ALJ-21-0063-AP

APPEARANCES:
n/a
 

ORDERS:

ORDER

STATEMENT 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 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.

BACKGROUND

On 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).


Pursuant 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 conducted.

On January 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.

ISSUE ON APPEAL

Did the DMVH Hearing Officer err by rescinding Senn’s suspension based on Trooper Kirkendoll’s failure to testify regarding the circumstances surrounding the checkpoint?

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(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 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 Res. Conservation Comm’n, 321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996).

DISCUSSION

Burden of Proof

a. Generally

“In 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).

To 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.[1] 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).

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);[2] 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.

b. 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,[3] 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).

The 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).[4]

The 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. § 56-5-2951(F).

The 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[5] 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 rebutted.


In 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 at 789.

c. Conclusions

Here, 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;[6] 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.[7] 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.

ORDER

For 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.

IT IS SO ORDERED.

________________________________

Paige J. Gossett

Administrative Law Judge

December 31, 2007

Columbia, South Carolina



[1] 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).

[2] 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 . . . .”).

[3] Whether or not the Department must prove the second element set forth in Nelson is not completely clear in light of other South Carolina appellate cases; however, the court need not address this apparent discrepancy because the issue of whether Senn was driving a motor vehicle is not before the court.

[4] 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.

[5] 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).

[6] But see United States v. Johnson, 383 F.3d 538 (7th Cir. 2004) (noting that a lawful arrest may occur following an unlawful stop if there is an intervening circumstance, such as discovery of an outstanding arrest warrant); People v. Murray, 728 N.E.2d 512, 517 (Ill. App. Ct. 2000) (Where police made an illegal stop, the subsequent arrest was lawful where it was made pursuant to a valid warrant, because an arrest pursuant to a warrant constituted an “intervening circumstance”) (quoting United States v. Green, 111 F.3d 515, 522 (7th Cir. 1997)). See also Brown v. Illinois, 422 U.S. 590, 603-04 (1975) (providing three factors to evaluate when determining whether sufficient attenuation exists to dissipate the initial taint of unlawful police conduct: “(1) the time elapsed between the illegality and the acquisition of the evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.”).

[7] The court reiterates for emphasis that once a motorist meets its burden of going forward by presenting some evidence that calls the lawfulness of the arrest or detention into question, the Department has the ultimate burden of persuasion to convince the Hearing Officer by a preponderance of the evidence that the stop or arrest was lawful.


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