Monday, July 28, 2014

SC Administrative Law Court Decisions

CAPTION:
SCDMV, et al vs. Joshua Wayne Bowers

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Petitioners:
South Carolina Department of Motor Vehicles and South Carolina Department of Public Safety

Respondents:
Joshua Wayne Bowers

Appellant:
South Carolina Department of Motor Vehicles

Respondents:
Joshua Wayne Bowers
 
DOCKET NUMBER:
06-ALJ-21-0808-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 (2006 & Supp. 2006). The Department contends that the DMVH hearing officer erroneously rescinded the driver’s license suspension of Respondent Joshua Wayne Bowers (Bowers). The Administrative Law Court (ALC or Court) has jurisdiction to review this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2007). Upon consideration of the briefs, the DMVH’s Final Order and Decision is reversed.

BACKGROUND

On March 25, 2006, Trooper R.M. McFadden (Trooper McFadden) of the South Carolina Highway Patrol arrested Bowers for driving under the influence (DUI) and transported him to the Lexington County Jail for a DataMaster test. Upon arriving at the jail, Trooper McFadden, a certified DataMaster operator, began the process of administering a DataMaster test to Bowers. When Bowers was given the opportunity to provide a breath sample, he refused. As a result of his refusal, Bowers was issued a Notice of Suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (2006).

Bowers subsequently filed a request with the DMVH for an administrative hearing to challenge the suspension. An administrative hearing was held on May 17, 2006. No motions were made and no issues were raised at the start of the hearing. Trooper McFadden, the sole person to testify at the hearing, provided the following relevant testimony:

Upon arriving at the jail, Mr. Bowers was given his Miranda warnings; I also gave him his advisement of implied consent rights. After the twenty minute observation period, I attempted to administer the breath test to Mr. Bowers off of the DataMaster, which he refused.

Bowers did not cross-examine Trooper McFadden about the implied consent advisement, and the implied consent form was not introduced into evidence. During his closing argument, Bowers argued that his suspension should be rescinded because Trooper McFadden failed to specifically testify that he advised Bowers in writing of his implied consent rights. Trooper McFadden responded to Bowers’ argument by stating that “he was informed in writing at the jail” and that “he was given the form.” However, the record was closed at the time that Trooper McFadden made these clarifying remarks.

On September 22, 2006, the DMVH hearing officer issued a Final Order and Decision rescinding Bowers’ suspension. Specifically, the hearing officer held in pertinent part:

[T]he officer failed to prove that he advised Respondent of the Implied Consent Rights in writing prior to the refusal. The officer testified that he gave the Miranda Rights and Implied Consent Rights to Respondent but he failed to specify the manner he gave the Advisement of Implied Consent Rights. Accordingly, the relief requested by the [Respondent] must be granted.

The Department now appeals.

ISSUES ON APPEAL

1.      Does this Court lack the authority to reverse the DMVH’s Final Order and Decision?

2.      Did the DMVH hearing officer err by rescinding Bowers’ suspension on the grounds that the Petitioners failed to demonstrate that Bowers was given the implied consent advisement in writing?

3.      Did the Petitioners sufficiently establish that Bowers was given the correct implied consent advisement?[2]

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. 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).

A decision is supported by “substantial evidence” when the record as a whole allows reasonable minds to reach the same conclusion reached by the agency. Bilton v. Best Western Royal Motor Lodge, 282 S.C. 634, 641, 321 S.E.2d 63, 68 (Ct. App. 1984). A decision will not be set aside simply because reasonable minds may differ on the judgment. Lark v. Bi-Lo, Inc., 276 S.C. 130, 136, 276 S.E.2d 304, 307 (1981). The fact that the record, when considered as a whole, presents the possibility of drawing two inconsistent conclusions from the evidence does not prevent the agency’s findings from being supported by substantial evidence. Waters v. S.C. Land Resources Conservation Comm’n, 321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996); Grant v. S.C. Coastal Council, 319 S.C. 348, 353, 461 S.E.2d 388, 391 (1995).

In applying the substantial evidence rule, the factual findings of the administrative agency are presumed to be correct. Rodney v. Michelin Tire Co., 320 S.C. 515, 519, 466 S.E.2d 357, 359 (1996) (citing Kearse v. State Health and Human Servs. Fin. Comm’n, 318 S.C. 198, 200, 456 S.E.2d 892, 893 (1995)). The party challenging an agency action has the burden of proving convincingly that the agency’s decision is unsupported by substantial evidence. Waters, 321 S.C. at 226, 467 S.E.2d at 917.

DISCUSSION

Summary of Applicable Law

The license to operate a motor vehicle upon the public highways of this State is not a right, but a 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). 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 & Supp. 2006). Section 56-5-2950 declares that a motorist arrested for DUI implicitly consents to a chemical test of his breath, blood or urine for the purpose of determining the presence of alcohol or drugs, and it requires that, at the direction of the arresting officer, a breath test be administered to a motorist so arrested. S.C. Code Ann. § 56-5-2950(a) (2006).[4] However, Section 56-5-2950 also provides that, before any type of chemical test is administered, the motorist must be 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.

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 refuses to submit to a test required by Section 56-5-2950 be immediately suspended. See S.C. Code Ann. § 56-5-2951(A) (2006). Section 56-5-2951 nevertheless 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) refused to submit to a test pursuant to Section 56-5-2950. S.C. Code Ann. § 56-5-2951(F) (Supp. 2006).

In a Section 56-5-2951 hearing, the initial burden of proof is borne by the Department and/or the applicable law enforcement agency. See, e.g., S.C. Dep’t of Motor Vehicles v. Lavigne, 06-ALJ-21-0056-AP (January 10, 2007); S.C. Dep’t of Motor Vehicles v. Boyle, 06-ALJ-21-0340-AP (September 11, 2006); S.C. Dep’t of Motor Vehicles v. Heyward, 06-ALJ-21-0533-AP (February 9, 2007); S.C. Dep’t of Motor Vehicles v. Witt, 06-ALJ-21-0630-AP (July 5, 2007). However, once a prima facie case is established against the motorist, the burden shifts to the motorist to present evidence to rebut the prima facie case. S.C. Dep’t of Motor Vehicles v. Powers, 06-ALJ-21-0578-AP (January 10, 2007) (explaining the application of this principle throughout the states).

Thus, if a prima facie case is established against the motorist and the motorist fails to present any evidence to rebut it, then judgment must go against the motorist. See Arkwright Mills v. Clearwater Mfg. Co., 217 S.C. 530, 539, 61 S.E.2d 165, 168-69 (1950) (“It is the settled rule of law that once a party establishes a prima facie case, judgment will go in his favor unless the opposite party produces evidence sufficient to overcome the prima facie presumption.”); accord Moffitt v. Commonwealth, 434 S.E.2d 684, 687 (Va. Ct. App. 1993) (“Once the Commonwealth has established a prima facie case, it is entitled to judgment, unless the respondent goes forward with evidence that refutes an element of the Commonwealth’s case or rebuts the prima facie presumption.”).

ALC’s Authority to Reverse the DMVH’s Final Order and Decision

As an initial matter, Bowers argues that this Court does not have the authority to reverse the DMVH’s Final Order and Decision because the Department has failed to argue and, according to Bowers, “nothing in this record remotely suggests” that substantial rights of the Department were prejudiced by the DMVH’s Final Order and Decision. I disagree.

Pursuant to Section 1-23-380(A)(5), the ALC may reverse a decision of the DMVH where an error has caused (1) substantial rights of the appellant (2) to be prejudiced. With respect to the first requirement, the right of the Department, as a State agency, to implement the administrative suspension of a motorist who refuses to submit to chemical testing is a substantial right. The State has a strong interest in maintaining the safety of its roads,[5] and the purpose of administratively suspending a motorist’s license for refusing to submit to chemical testing is to protect those who use such roads.[6]

In Mackey v. Montrym, 443 U.S. 1 (1979), the United States Supreme Court explained how, with respect to Massachusetts’ implied consent law, a State’s interest in public safety is “substantially served” by the summary suspension of those motorists who refuse to submit to breath testing:

First, the very existence of the summary sanction of the statute serves as a deterrent to drunken driving. Second, it provides strong inducement to take the breath-analysis test and thus effectuates the Commonwealth’s interest in obtaining reliable and relevant evidence for use in subsequent criminal proceedings. Third, in promptly removing such drivers from the road, the summary sanction of the statute contributes to the safety of public highways.

Mackey, 443 U.S. at 18. Similarly, the South Carolina Court of Appeals has also recognized the important function that such suspensions serve. See Nelson, 364 S.C. at 522, 613 S.E.2d at 548-49 (“Were drivers free to refuse alcohol and drug testing without suffering penalty, the current system of detecting, testing, and prosecuting drunk drivers would simply fail.”). Therefore, as the aforementioned cases make clear, the Department’s right to implement Bowers’ administrative suspension is a substantial right.

With regard to the second requirement, errors that affect the outcome of a case are prejudicial. See, e.g., State v. Covert, 368 S.C. 188, 628 S.E.2d 482 (Ct. App. 2006) (remanding case after finding that legal error was not harmless since it “could have reasonably affected the result of the trial”). Here, the Department is arguing that the reason given by the hearing officer for rescinding Bowers’ suspension is permeated with error. Therefore, if the Department is correct, then the Department was prejudiced by this error.

For these reasons, this Court will not, as Bowers urges, affirm the DMVH’s Final Order and Decision without addressing the substantive issues on appeal.

Implied Consent Rights Advisement

The Department argues that the DMVH hearing officer erred by rescinding Bowers’ suspension on the grounds that the Petitioners failed to adequately demonstrate that Bowers was advised in writing of his implied consent rights. Specifically, the Department contends that Trooper McFadden’s testimony sufficiently established that Bowers was, at the very least, orally advised of his implied consent rights, and that, therefore, any failure by Trooper McFadden to advise Bowers in writing of his implied consent rights did not warrant rescission of Bowers’ suspension since Bowers failed to demonstrate prejudice. In making this argument, the Department cites Taylor v. S.C. Dep’t of Motor Vehicles, 368 S.C. 33, 627 S.E.2d 751 (Ct. App. 2006), cert. granted, Shearouse Adv. Sh. No. 35 (2007).

a. Taylor and the “In Writing” Requirement

In Taylor, a motorist who was arrested for DUI had his driver’s license suspended pursuant to Section 56-5-2951(A) after he refused to submit to a blood test. Prior to the motorist’s refusal, the arresting officer read out loud to the motorist a copy of the implied consent form, but did not provide the motorist with a tangible copy of the form. In addressing the legal significance of the fact that the motorist did not receive a tangible copy of the implied consent form, the Court of Appeals, relying on State v. Huntley, 349 S.C. 1, 5, 562 S.E.2d 472, 474 (2002),[7] stated that:

[In Huntley], the supreme court reversed the suppression of the breathalyzer test results because the defendant was not prejudiced by the statutory violation committed by the breathalyzer operator. Consequently, the Huntley decision dictates that a violation of section 56-5-2950 without resulting prejudice will not lead to a suppression of the evidence obtained pursuant to this section.

Taylor, 368 S.C. at 38, 627 S.E.2d at 754. The Court of Appeals then noted that the motorist did not argue that he was not advised of his implied consent rights, or that he would have provided a blood sample if he had been advised of his implied consent rights in writing. Id. It therefore concluded that the motorist was not prejudiced by the fact that the arresting officer did not provide him with a tangible copy of the implied consent advisement form. Id. Thus, the Court of Appeals held that the circuit court erred in reversing the hearing officer’s order. Id.

Here, the record demonstrates that Bowers was, at the very least, orally advised of his implied consent rights. As discussed above, Trooper McFadden testified that that he “gave [Bowers] his advisement of implied consent rights.” Therefore, pursuant to Taylor, any failure by Trooper McFadden to advise Bowers in writing of his implied consent rights did not warrant rescission of Bowers’ suspension since Bowers neither argued nor presented any evidence to show that he suffered prejudice as a result of such failure.[8]

b. Evidence of Correct Advisement

Bowers argues – as an additional sustaining ground – that the Petitioners failed to sufficiently establish that he was advised, in any fashion, of the correct implied consent rights and that Taylor is therefore inapplicable to this case. I disagree.

Section 56-5-2950 is widely called the “implied consent” statute,[9] and the rights set forth in Section 56-5-2950 are commonly referred to as “implied consent” rights.[10] However, according to SLED Implied Consent Policy 8.12.5(D), 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.[11] SLED has named these eight advisements as follows: (1) DUI Advisement; (2) Felony DUI Advisement; (3) Commercial Driver’s License Advisement; (4) Zero Tolerance Advisement; (5) Boating Under the Influence (BUI) Advisement; (6) BUI Involving Death, Bodily Injury, or Property Damage Advisement; (7) Flying Under the Influence (FUI) Advisement; and (8) Shooting Under the Influence (SUI) Advisement.[12] All of SLED’s implied consent advisements are set forth on forms that are provided to law enforcement agencies by SLED.[13] Of the eight different implied consent advisements, it is the DUI Advisement that sets forth the rights enumerated in Section 56-5-2950. See Cole & Huff, supra note 13, at 341 (setting forth copy of DUI Advisement form).

As discussed above, absent any proof to the contrary, prima facie evidence is sufficient to establish that law enforcement complied with Section 56-5-2950 in administering a breath test. See State v. Parker, 271 S.C. 159, 164, 245 S.E.2d 904, 906 (1978). 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 record contains prima facie evidence to show that Bowers was given the correct implied consent advisement, i.e., the DUI Advisement. First of all, the evidence clearly demonstrates that Trooper McFadden, who acted as both the arresting officer and the DataMaster operator, was aware that Bowers had been arrested for DUI.

Second, Trooper McFadden testified that that he gave Bowers “his advisement of implied consent rights,” thus suggesting that he gave Bowers the implied consent advisement that was applicable to Bowers in his current situation. Importantly, determining which implied consent advisement to give to a motorist in a certain situation does not appear to be difficult. For instance, the name of each advisement is set forth in bold, capital letters at the top of each advisement. See Cole & Huff, supra, at 236, 341-42 (setting forth copies of the eight different implied consent advisements). In addition, each advisement clearly states the statutory violation for which the individual has been detained. See id. For example, the first bulleted item in the FUI Advisement reads: “You are under arrest for operating or acting as a flightcrew member of aircraft while under the influence of alcohol or drugs, Section 55-1-100, South Carolina Code of Laws 1976, as amended.” See Cole & Huff, supra, at 236.

Third, the evidence in the record shows that Trooper McFadden took actions that were consistent with a DUI refusal situation, and that were inconsistent with other “implied consent” refusal situations. For instance, on the Notice of Suspension, Trooper McFadden checked the “Refusing to submit to a breath, blood or urine test” box that was located under the heading, “Any age under arrest for DUI.” He did not check the “Refusing to submit to a breath, blood or urine test” box that was located under the heading, “Under the Age of Twenty-One (21) and not under Arrest for DUI,” which would have been appropriate for a Zero Tolerance refusal situation. See S.C. Code Ann. § 56-1-286 (2006) (“Zero Tolerance” statute); see also Cole & Huff, supra, at 342 (setting forth copy of Zero Tolerance Advisement). Moreover, under “Vehicle Type,” Trooper McFadden checked “Noncommercial,” rather than “Commercial.”[14] Furthermore, to penalize Bowers for refusing testing, Trooper McFadden suspended Bowers’ driver’s license. Notably, the BUI, FUI and SUI statutes do not list suspension of one’s driver’s license as a possible penalty for refusing testing. See S.C. Code Ann. § 50-21-114(E) (Supp. 2006) (stating that the penalty for refusing the BUI implied consent test is a 180-day suspension of privilege to operate a water device); S.C. Code Ann. § 55-1-100(B) (Supp. 2006) (stating that the penalty for refusing the FUI implied consent test is a fine of $200 or imprisonment for a period of between 48 hours and 30 days, or both); S.C. Code Ann. §§ 23-31-400 to 23-31-420 (Supp. 2005) (not setting forth a punishment for refusing the SUI implied consent test); see also Cole & Huff, supra, at 236, 342 (setting forth copies of BUI, FUI and SUI advisements). Trooper McFadden also testified that, after Bowers refused testing, he was charged with DUI.

Finally, Trooper McFadden testified that he was certified to administer DataMaster tests. Importantly, as SLED policy makes clear, one portion of the DataMaster administration process is the provision of the implied consent rights advisement. See SLED Implied Consent Policy 8.12.5(C)(1). Thus, the evidence presented at the hearing demonstrated that Trooper McFadden had received training on when to give each different implied consent advisement.

Taken together, the foregoing constituted prima facie evidence that Trooper McFadden gave Bowers the correct implied consent advisement. See 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); 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.”).[15] Therefore, because none of this evidence was contradicted or weakened in any way, the Petitioners were entitled to a ruling in their favor on this issue. See, e.g., Arkwright Mills, 217 S.C. at 539, 61 S.E.2d at 168-69; Moffitt v. Commonwealth, 434 S.E.2d at 687.

Stated differently, Bowers’ mere speculation that the wrong advisement might have been given to him is simply not enough to rescind Bowers’ suspension. Speculation alone does not meet the substantial evidence standard. See Herndon v. Morgan Mills, Inc., 246 S.C. 201, 217, 143 S.E.2d 376, 385 (1965) (reversing lower tribunal’s determination that employee’s death was causally connected to the accident at issue where the determination was supported only by “speculation and surmise”). The Supreme Court’s decision in State v. Hyder, 242 S.C. 372, 131 S.E.2d 96 (1963), illustrates this point well. In that case, the defendant claimed on appeal that the trial court erred by admitting into evidence field glasses that were identical to the ones used by the State’s witness to observe events that transpired on the day of the alleged crime. The defendant argued that it was possible that the field glasses that were actually used could have been dropped or knocked out of focus or in some way defective. The Supreme Court, however, rejected the defendant’s claim. In doing so, the Supreme Court stated:

There is no evidence of such [defectiveness] in this record nor did the appellant cross examine the witness of the State thereabout. The fact that the field glasses as used by the State’s witness were not produced did not deny the appellant the opportunity of cross examining the witness about the condition of such glasses.

Hyder, 242 S.C. at 381, 131 S.E.2d at 101-02.

Similarly, in this case, though different implied consent advisements exist, there is no evidence in the record supporting the conclusion that the wrong advisement was given to Bowers. In fact, the evidence strongly suggests just the opposite.[16] Moreover, the fact that Trooper McFadden failed to introduce the advisement form into evidence did not prevent Bowers from cross-examining Trooper McFadden about the specific advisement given. Therefore, the only reasonable conclusion to be drawn from the evidence in the record is that Trooper McFadden correctly gave Bowers the DUI Advisement. See 2 Kenneth S. Broun et al., McCormick on Evidence § 338 (John W. Strong ed., 5th ed. 1999).

Additionally, even if this Court were to agree with Bowers’ claim that the Petitioners failed to adequately establish that he was given the correct implied consent advisement (which it clearly does not), rescission of Bowers’ suspension would still not be warranted. As discussed above, the Court held in Taylor that a violation of Section 56-5-2950, without resulting prejudice, will not lead to the suppression of evidence obtained pursuant to Section 56-5-2950. Taylor, 368 S.C. at 38, 627 S.E.2d at 754. In this case, the record plainly demonstrates that Bowers exercised both his right to refuse testing and his right to request an administrative hearing. Additionally, the record also indicates that Bowers was advised of his right to have a qualified person of his own choosing conduct an additional independent test.[17] Thus, it appears that the only plausible way prejudice could have occurred is if the information contained in the implied consent advisement regarding the consequences of refusing testing affected Bowers’ decision to refuse.

However, the record does not demonstrate that occurred in this case. For instance, Bowers provided no testimony as to how he made his decision to refuse testing. Therefore, it is unclear what, if any, effect the implied consent rights advisement had on Bowers’ decision to refuse testing.[18] Moreover, in order to make a credible determination as to whether a motorist arrested for DUI suffered prejudice as a result of receiving the wrong implied consent advisement, it is generally important to know which specific incorrect advisement he received. For instance, while the DUI Advisement informs motorists that their licenses must be suspended for at least ninety days if they refuse testing,[19] the Zero Tolerance Advisement informs motorists that their licenses must be suspended for at least six months if they refuse testing.[20] Thus, receiving the Zero Tolerance Advisement, rather than the DUI Advisement, would likely make a motorist less inclined to refuse testing — not more so. In this case, the only evidence in the record regarding the implied consent advisement is the evidence discussed above. Certainly, if such evidence is insufficient to show that Bowers was given the DUI Advisement, then it is also insufficient to demonstrate that Bowers was not given the Zero Tolerance Advisement. Consequently, based on the existing record, a finding of prejudice in this case would be too conjectural and therefore would not be warranted. Accordingly, for this reason as well, Bowers is not entitled to rescission of his suspension simply because Trooper McFadden failed to expressly testify as to which implied consent advisement he gave Bowers.

ORDER

IT IS THEREFORE ORDERED that the DMVH’s Final Order and Decision is REVERSED.

IT IS SO ORDERED.

______________________________

Ralph K. Anderson, III

Administrative Law Judge

April 9, 2008

Columbia, South Carolina



[1] The caption in this matter has been amended to reflect the fact that the South Carolina Department of Public Safety is not a party to this appeal.

[2] This issue was not addressed in the DMVH hearing officer’s Final Order and Decision. However, Bowers has raised it on appeal, and it is therefore addressed below. See I’On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 419, 526 S.E.2d 716, 723 (2000) (“[A] respondent — the ‘winner’ in the lower court — may raise on appeal any additional reasons the appellate court should affirm the lower court’s ruling, regardless of whether those reasons have been presented to or ruled on by the lower court.”).

[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] Blood and urine tests may be administered to motorists arrested for DUI only if certain other conditions are met. See S.C. Code Ann. § 56-5-2950(a) (2006).

[5] S.C. Dep’t of Motor Vehicles v. Nelson, 364 S.C. 514, 522, 613 S.E.2d 544, 548 (Ct. App. 2005).

[6] State v. Kerr, 330 S.C. 132, 150, 498 S.E.2d 212, 221 (Ct. App. 1998). As South Carolina courts have noted, driving while under the influence of alcohol or drugs poses a significant risk to others. See State v. Martin, 275 S.C. 141, 146, 268 S.E.2d 105, 107 (1980) (noting that an individual who drives while intoxicated “presents a clear and present danger to the community”); Lydia v. Horton, 343 S.C. 376, 393, 540 S.E.2d 102, 111 (Ct. App. 2000) (noting that there is a “general understanding that driving while intoxicated presents an unreasonable risk of physical harm to the driver and others”), rev’d on other grounds, 355 S.C. 36, 583 S.E.2d 750 (2003).

[7] Huntley involved the prosecution of a motorist for driving under the influence. The trial court in the case had suppressed the motorist’s breathalyzer test results because the breathalyzer operator tested the breathalyzer machine with a simulator test solution containing an alcohol level of .10% rather than the .08% mandated by statute. On appeal, the South Carolina Supreme Court reasoned that, because the simulator test merely determined the reliability of the breathalyzer machine’s results, it was “irrelevant whether the simulator test [was operated] using an alcohol level of .10 or .08 percent.” Huntley, 349 S.C. at 5, 562 S.E.2d. at 474. The court then concluded:

Even if the breathalyzer operator did not use the simulator test solution at the alcohol concentration required by [Section 56-5-2950], Huntley was not prejudiced. There is no question the breathalyzer machine was operating properly and its results were reliable. Consequently, the trial judge erred by excluding Huntley’s breathalyzer test results.

Id. at 6, 562 S.E.2d. at 474.

[8] The DMVH hearing officer’s Final Order and Decision contains no findings with respect to whether or not Bowers suffered prejudice.

[9] 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); State v. Bacote, 331 S.C. 328, 329, 503 S.E.2d 161, 162 (1998); 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 n.1, 376 S.E.2d 773, 774 n.1 (1989).

[10] See, e.g., Taylor, 368 S.C. at 35, 627 S.E.2d at 752; Nelson, 364 S.C. at 517, 613 S.E.2d at 546; Sponar v. S.C. Dep’t of Pub. Safety, 361 S.C. 35, 36-37, 603 S.E.2d 412, 413 (Ct. App. 2004), cert. granted, Shearouse Adv. Sh. No. 45 (2005); see also Haase, 367 S.C. at 266; 625 S.E.2d at 634 (calling Section 56-5-2950 rights “implied consent warnings”).

[11] See SLED Implied Consent Policy 8.12.5(D), available at http://www.sled.sc.gov/documents/impliedconsent/polproc/8125/200611018125.pdf.

[12] Id.

[13] Id.; see also Ronnie M. Cole & James B. Huff, Handling Traffic Cases in South Carolina 236, 341-42 (Candice Koopman Lockman ed., 4th ed. 2005) (setting forth copies of the different implied consent advisement forms).

[14] A Commercial Driver’s License “implied consent” situation occurs when a person is arrested for having a measurable amount of alcohol in his body while driving a commercial motor vehicle. See S.C. Code Ann. §§ 56-1-2120 to 56-1-2130 (Supp. 2004); see also Cole & Huff, supra, at 342 (setting forth copy of Commercial Driver’s License Advisement).

[15] 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, 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). In fact, South Carolina courts, as well as courts of other states, have applied this presumption 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); 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).

As Bowers points out in his brief, there are exceptions to this presumption. See 31A C.J.S. Evidence § 160 (1996). For instance, the presumption does not apply where the officer’s duties are not specified by law and he is given unlimited discretion. Id. Additionally, the presumption cannot be used as a substitute for proof of a definite or material fact, such as substantive independent facts essential to establish an issue. Id. Here, however, the officer’s duties are specified by law. See S.C. Code Ann. § 56-5-2950(a). Moreover, the application of this presumption by this Court is not as a substitute for proof, but as a tool to evaluate the strength of the evidence presented, namely, Trooper McFadden’s testimony that he gave Bowers “his advisement of implied consent rights.”

Furthermore, Bowers’ claim with regard to this presumption that “[p]roof that the driver was provided the rights set forth in S.C. Code Ann. § 56-5-2950 is a substantive element necessary to sustain a suspension” is highly questionable. In Nelson, the Court of Appeals listed the “requirements for suspension for refusal to consent” under Sections 56-5-2950 and 56-5-2951 and the provision of the implied consent advisement was not included in its list. See Nelson, 364 S.C. at 523, 613 S.E.2d at 549. Similarly, in State v. Cuccia, 353 S.C. 430, 438, 578 S.E.2d 45, 50 (Ct. App. 2003), the provision of the implied consent advisement was not included in the court’s list of the elements required for suspension under the Zero Tolerance statute. Although Section 56-5-2951(F) makes it clear that the DMVH may consider the propriety of the implied consent advisement when it is raised as an issue by the motorist, this does not necessarily mean that the issue must be proved when it is not raised.

Here, Bowers did not raise, at any point during the hearing, the issue of whether the correct implied consent advisement was given. Moreover, Bowers did not raise the issue of whether the implied consent advisement was given in writing until his closing argument, when it was too late for Trooper McFadden to properly respond. Consideration of this issue raises the specter of “trial by ambush.” In fact, in his closing argument, Trooper McFadden clarified that he did indeed advise Bowers in writing of his implied consent rights.

[16] Courts are permitted to make reasonable inferences based upon the evidence presented to them. No issue must be proved with absolute certainty; in fact, the standard of proof in administrative hearings such as the one held below is simply “a preponderance of the evidence.” See Anonymous (M-156-90) v. State Bd. of Med. Exam’rs, 329 S.C. 371, 375, 496 S.E.2d 17, 19 (1998). In this case, it is extremely reasonable to infer that, based on the evidence presented at the hearing, Trooper McFadden gave Bowers the correct implied consent advisement. Furthermore, making such an inference does not, on its own, “eviscerate” the rights of a motorist to a fair and impartial hearing, as Bowers seems to claim. Here, Bowers was given the opportunity to cross-examine Trooper McFadden about the implied consent advisement, but he chose not to do so.

[17] All eight implied consent advisements inform motorists that they have the right to have a qualified person of their own choosing conduct additional independent tests at their expense. See Cole & Huff, supra, at 236, 341-42 (setting forth copies of the eight different implied consent advisements). Thus, Bowers would have been advised of this right regardless of which implied consent advisement he received.

[18] Because incriminating DataMaster results generally increase one’s chances of being criminally convicted of DUI, the consequences of refusing testing is clearly not the only factor relevant to deciding whether or not to refuse testing.

[19] See Cole & Huff, supra, at 341 (setting forth copy of DUI Advisement); see also S.C. Code Ann. § 56-5-2950(a) (2006).

[20] See Cole & Huff, supra, at 342 (setting forth copy of Zero Tolerance Advisement); see also S.C. Code Ann. § 56-1-286(I) (2006). Moreover, the Zero Tolerance Advisement, like the DUI Advisement, informs motorists that they must enroll in an Alcohol and Drug Safety Action Program if they do not request an administrative hearing or if their suspension is upheld at the administrative hearing. Id.


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