Friday, June 22, 2018

SC Administrative Law Court Decisions

SCDMV vs. Nicole M. Momat

South Carolina Department of Motor Vehicles

South Carolina Department of Motor Vehicles

Nicole M. Momat





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) (Supp. 2007). The Department claims that the DMVH erroneously rescinded the driver’s license suspension of Respondent Nicole M. Momat (“Momat”). The Administrative Law Court (“ALC” or “Court”) has jurisdiction to hear this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2007). Upon consideration of the Department’s brief[1], the DMVH’s Final Order and Decision is reversed.


On March 24, 2007, Officer Michael Meiner (“Officer Meiner”) responded to an accident involving Momat’s vehicle on Highway 17 South and Lexington Drive in the town of Mt. Pleasant, South Carolina. Upon arriving at the scene of the incident, Officer Meiner asked Momat a series of questions in order to ensure that she and her children, who were also in the vehicle, were uninjured. Soon thereafter, Officer Meiner noted that there was a strong odor of alcohol emanating from Momat’s person. He also noted that Momat seemed disoriented, that her eyes were bloodshot, and testified that she had told him that “…she had been out until about 3:30 or 4:00, taken a sleeping pill and then three Prozacs before she went to the gym.” Due to these abnormalities, Officer Meiner informed Momat that she was under investigation for driving under the influence (“DUI”). Subsequently, Officer Meiner advised Momat of her Miranda rights and asked her to perform several field sobriety tests. Momat refused to submit to testing. At that time, Officer Meiner placed Momat under arrest for driving under the influence, informed her of her “DUI rights”, and again advised her of her Miranda rights. Officer Meiner then transported Momat to the Mt. Pleasant Police Department where he instructed Officer Wilson to offer her a breathalyzer test.

Officer Wilson is certified DataMaster operator. Prior to testing, Momat was again read her Miranda rights and was informed that she was being videotaped. Officer Wilson then “went through the entire implied consent form,” performed other requisite procedures, and asked her to submit to testing. Momat refused testing. Based on this refusal, Momat was issued a Notice of Suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (Supp. 2007).

Thereafter, pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (2006), Momat filed a request for an administrative hearing to challenge the suspension. An administrative hearing was held on April 23, 2007. Officers Meiner and Wilson testified at the hearing on behalf of the Department. Momat was represented by her attorney at the hearing.

On April 26, 2007, the DMVH hearing officer issued a Final Order and Decision, in which she held the following:

I find that Officer Wilson did not meet the burden of proof in this case…There was no evidence either through testimony or documents to show that Respondent was advised of the proper Implied Consent Advisement or what the consequences would be if she took the test…Without evidence that [the Respondent] knew of all of the consequences associated with the taking of and refusal of the Datamaster test, I must conclude that she was prejudiced…Accordingly, the relief requested by the Respondent must be granted.

The Department now appeals.


1.      Was it error for the DMVH hearing officer to rescind Momat’s suspension on the grounds that Officer Wilson failed to offer proof that the proper implied consent advisement was given?


The DMVH is authorized by law to determine contested cases arising from the Department. See S.C. Code Ann. § 1-23-660 (Supp. 2007). 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. 2007); 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. 2007).[3] 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. 2007).


The 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 Program.

Under 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.[4] 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).

Section 56-5-2950 is widely called the “implied consent” statute,[5] and the rights set forth in Section 56-5-2950 are commonly referred to as “implied consent” rights.[6] However, according to SLED Implied Consent Policy 8.12.5(D),[7] 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.

The Department argues that the DMVH hearing officer erred when she determined that Officer Wilson failed to satisfy the requirements of the Implied Consent statute by failing to specify which version of the implied consent disclosures were given. The Department essentially contends that Officer Wilson’s testimony at the hearing constituted prima facie evidence that Momat was properly advised of her Section 56-5-2950 rights. According to the Department, because Momat did not present any evidence to refute this evidence, rescission of Momat’s suspension was not warranted. I agree.

Once prima facie evidence is offered to show that a motorist was advised of the rights enumerated in Section 56-5-2950, the burden shifts to the motorist to produce evidence showing that she 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).

Here, the Department presented prima facie evidence to show that Momat was given the proper Implied Consent Advisement. Officer Meiner testified that, after arresting Momat for DUI, he read Momat “her DUI rights.” (R. at 12). Furthermore, Officer Wilson testified that he “went through the entire implied consent form” and “informed [Momat]…of the consequences of her refusal.” (R. at 14-15). Lastly, Officer Wilson testified that he is a certified DataMaster operator. (R. at 13).

Taken together, and in light of the fact that there is nothing in the record that suggests that Officer Wilson gave Momat the wrong advisement,[8] this testimony constituted prima facie evidence that Momat was given the appropriate DUI Advisement. 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);[9] 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 its face.”)[10]

Thus, because the Department presented prima facie evidence to show that Momat was advised of the rights enumerated in Section 56-5-2950, the burden shifted to Momat to present evidence showing that she was not so advised. Momat did not present any such evidence. Therefore, the DMVH hearing officer erred by rescinding Momat’s suspension.

Moreover, even if Momat was not given a written copy of the implied consent form, it remains likely that her suspension would be upheld. In Taylor v. S.C. Dep’t. of Motor Vehicles, 368 S.C. 33, 627 S.E.2d 751, (Ct. App. 2006), a motorist’s driver’s license was suspended after he refused to submit to a blood test after being arrested for Driving Under the Influence. The arresting officer read the implied consent advisement but neglected to provide a written copy of the form to the motorist. In upholding the suspension, the Court concluded that the motorist was not prejudiced by the fact that the arresting officer did not provide a written copy of the advisement. See Taylor, 627 S.E.2d at 753. Importantly, the Court noted that a violation of 56-5-2950, without resulting prejudice, will not warrant the rescission of a driver’s license suspension. Id. at 754.

Here, as in Taylor, Momat does not argue that she did not receive her implied consent rights, or that she would have submitted to testing if she had received the same in writing. In other words, it is clear that Momat was not prejudiced here. Accordingly, for this reason as well, the DMVH hearing officer’s Final Order and Decision must be reversed.


It is hereby ordered that the DMVH’s Final Order and Decision is REVERSED and the Department’s suspension of Momat’s driver’s license is reinstated.



John D. McLeod

Administrative Law Judge

January 24, 2008

Columbia, South Carolina

[1] Momat failed to submit a brief for this appeal. However, this fact alone does not require this Court to find in favor of the Department. See ALC Rule 38; see also Rule 208(a)(4), SCACR. Nonetheless, in situations such as this one, this Court will not “search the record for reasons to affirm.” See Wierszewski v. Tokarick, 308 S.C. 441, 444, 418 S.E.2d 557, 559 n.2 (Ct. App. 1992).

[2] Although the Department presented an additional issue on this appeal, because the issue discussed herein is dispositive, the other issue need not be addressed. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (noting that an appellate court need not address remaining issues when a prior issue is dispositive).

[3] Pursuant to S.C. Code Ann. § 1-23-380(B) (Supp. 2007), administrative law judges must conduct appellate review in the same manner prescribed in Section 1-23-380(A).

[4] The length of the suspension period ranges from 90 days to 180 days, depending upon whether the individual has been convicted of a DUI-related offense within the past ten years. See S.C. Code Ann. § 56-5-2951(I) (2006).

[5] See e.g., State v. Haase, 367 S.C. 264, 267, 625 S.E.2d 634, 635 (2006); State v. Frey, 362 S.C. 511, 516, 608 S.E.2d 874, 877 (Ct. App. 2005); Bacote, 331 S.C. at 329, 503 S.E.2d at 162; Kelly v. S.C. Dep’t of Highways, 323 S.C. 334, 336, 474 S.E.2d 443, 444 (Ct. App. 1996); S.C. Dep’t of Highways and Pub. Transp. v. Sanford, 318 S.C. 44, 45, 455 S.E.2d 710, 711 (Ct. App. 1995); State v. Baker, 310 S.C. 510, 511, 427 S.E.2d 670, 671 (1993); State v. Cribb, 310 S.C. 518, 520, 426 S.E.2d 306, 308 (1992); State v. Hunter, 305 S.C. 560, 561, 410 S.E.2d 242, 242 (1991); Shumpert v. S.C. Dep’t of Highways and Pub. Transp., 306 S.C. 64, 65, 409 S.E.2d 771, 772 (1991); State v. Williams, 297 S.C. 290, 293, 376 S.E.2d 773, 774 n.1 (1989).

[6] See, e.g., Taylor v. S.C. Dep’t of Motor Vehicles, 368 S.C. 33, 35, 627 S.E.2d 751, 752 (Ct. App. 2006), Nelson, 364 S.C. at 517, 613 S.E.2d at 546; Sponar, 361 S.C. at 36-37, 603 S.E.2d at 413; see also Haase, 367 S.C. at 266; 625 S.E.2d at 634 (calling Section 56-5-2950 rights “implied consent warnings”); but see State v. Cuevas, 365 S.C. 198, 201, 616 S.E.2d 718, 720 (Ct. App. 2005) (“Officers gave Cuevas the implied consent warnings for felony DUI . . .”).

[7] SLED’s implied consent policies can be found at

[8] For instance, the Notice of Suspension form used by Officer Wilson, and the way in which he completed it, are consistent with a DUI refusal situation.

[9] Importantly, as SLED policy clearly indicates, one portion of the breath test administration process is the provision of the implied consent rights advisement. See SLED Implied Consent Policy 8.12.5(C)(1).

[10] This presumption has been recognized in South Carolina. See 30 S.C. Jur. Evidence § 29 (2006) (“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.”); S.C. Nat’l Bank v. Florence Sporting Goods, Inc., 241 S.C. 110, 115-16, 127 S.E.2d 199, 202 (1962) (same); 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.”); Steele v. Atkinson, 14 S.C. 154, 161 (1880) (“The rule of law undoubtedly is that, in the absence of any evidence to the contrary, the presumption is that a public officer has done his duty — not that he has violated it.”). Moreover, this presumption has been applied to law enforcement officers. See, e.g., Steele, supra (applying presumption to a sheriff); Fisk v. Dep’t of Motor Vehicles, 179 Cal. Rptr. 379 (Cal. Ct. App. 1981) (applying presumption to a highway patrol officer and stating that presumption “may help lay the foundation for admissibility of evidence”); State v. Hensley, 600 N.E.2d 849 (Ohio Ct. App. 1992) (applying presumption to law enforcement officials); Barnes v. State, 763 So.2d 216 (Miss. Ct. App. 2000) (same). Furthermore, the South Carolina Supreme Court has held that state highway patrol officers and troopers fall within the common law definition of “public officer.” See State v. Bridgers, 329 S.C. 11, 495 S.E.2d 196 (1997).