Friday, April 20, 2018

SC Administrative Law Court Decisions

SCDMV vs. Thomas Michael Flathmann

South Carolina Department of Motor Vehicles

South Carolina Department of Motor Vehicles and Mt. Pleasant Police Department

Thomas Michael Flathmann





This 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 The Department contends that the DMVH hearing officer erroneously rescinded the driver’s license suspension of Respondent Thomas Michael Flathmann (Flathmann). 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 review of this matter, the DMVH’s Final Order and Decision is reversed.


On November 11, 2006, Officer Hops of the Mt. Pleasant Police Department arrested Flathmann for driving under the influence (DUI) and transported him to a detention center for a DataMaster test. At the detention center, Officer Hops asked Officer Baldwin, a certified DataMaster operator, to perform the DataMaster test. Flathmann thereafter refused to submit to the DataMaster test, and he was issued a Notice of Suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (2006).

Flathmann subsequently filed a request with the DMVH for an administrative hearing to challenge the suspension. An administrative hearing was held on December 5, 2006. At the hearing, Officer Baldwin provided the following pertinent testimony:

I read [Flathmann] his DUI implied consent warnings and also provided him a written copy for which he signed at 6:29 in the morning.

Flathmann did not cross-examine Officer Baldwin. The implied consent form was not introduced into evidence.

On December 7, 2006, the DMVH hearing officer issued a Final Order and Decision rescinding Flathmann’s suspension. Specifically, the hearing officer held in pertinent part:

I find that the Petitioner has not met his burden of proof in this case. Officer Baldwin testified that he read the Implied Consent Advisement to Respondent and gave him a copy. However the Officer did not submit a copy of the Implied Consent Advisement into evidence to show that Respondent was properly advised of the correct advisement. There are several versions of the Implied Consent Advisement and without evidence of such; there is no evidence to show Respondent was properly advised of the proper rights. Therefore, I conclude as a matter of law that the Petitioner has not met its burden of proof.

The Department now appeals.


1.      Did the DMVH hearing officer err by rescinding Flathmann’s suspension on the grounds that the Petitioners failed to adequately prove that the correct implied consent advisement was given to Flathmann?


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).[2] That section states:

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.


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).[3] 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). According to the South Carolina Supreme Court, a Section 56-5-2951 hearing should be “a summary administrative proceeding designed to handle license revocation matters quickly.” State v. Bacote, 331 S.C. 328, 333, 503 S.E.2d 161, 164 (1998).

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). A prima facie case is made by presenting 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); see also Mack v. Branch No. 12, Post Exchange, Fort Jackson, 207 S.C. 258, 272, 35 S.E.2d 838, 844 (1945) (“The words [prima facie evidence] import that the evidence produces for the time being a certain result; but that result may be repelled.”).

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.”).

Implied Consent Rights Advisement

Section 56-5-2950 is widely called the “implied consent” statute[4] and the rights enumerated in Section 56-5-2950 are commonly referred to as “implied consent” rights or warnings.[5] 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.[6] 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 Advisement.[7] All of SLED’s implied consent advisements are set forth on forms that are provided to law enforcement agencies by SLED.[8] Of the eight different implied consent advisements, it is the DUI Advisement that sets forth the rights enumerated in Section 56-5-2950. See Ronnie M. Cole & James B. Huff, Handling Traffic Cases in South Carolina 341 (Candice Koopman Lockman ed., 4th ed. 2005) (setting forth copy of DUI Advisement).

In this case, Officer Baldwin specifically testified that he read Flathmann “his DUI implied consent warnings” and that he provided Flathmann with a written copy of those warnings. Officer Baldwin also testified — and the DMVH hearing officer found — that he was a certified DataMaster operator. Because Officer Baldwin was not cross-examined, none of this testimony was weakened in any way.

Taken together, Officer Baldwin’s testimony clearly constituted prima facie evidence that Flathmann was properly advised of the rights enumerated in Section 56-5-2950. The term “DUI implied consent warnings” is synonymous with the phrase “rights enumerated in Section 56-5-2950.” See Cole & Huff, supra, at 341 (DUI Advisement sets forth the rights enumerated in Section 56-5-2950). Moreover, because Officer Baldwin is a certified DataMaster operator, it can be assumed — absent any evidence to the contrary — that he properly delivered the implied consent advisement. See State v. Parker, 271 S.C. 159, 163-64, 245 S.E.2d 904, 906 (1978) (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]

Therefore, once Officer Baldwin provided this testimony, the burden shifted to Flathmann to present evidence showing that Officer Baldwin failed to follow the requisites of Section 56-5-2950(a) in delivering the implied consent advisement. Nevertheless, Flathmann did not present any evidence to demonstrate that the wrong advisement was given to him. Consequently, it was error for the DMVH hearing officer to rescind Flathmann’s suspension on the grounds that the Petitioners failed to sufficiently establish that the correct implied consent rights advisement was given to Flathmann. See Arkwright Mills, 217 S.C. at 539, 61 S.E.2d at 168-69; Moffitt v. Commonwealth, 434 S.E.2d at 687.


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



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 Mt. Pleasant Police Department is not a party to this appeal.

[2] 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).

[3] 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).

[4] 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 n.1, 376 S.E.2d 773, 774 n.1 (1989).

[5] 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), cert. granted, Shearouse Adv. Sh. No. 35 (2007); S.C. Dep’t of Motor Vehicles v. Nelson, 364 S.C. 514, 517, 613 S.E.2d 544, 546 (Ct. App. 2005); 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); Haase, 367 S.C. at 266; 625 S.E.2d at 634.

[6] See SLED Implied Consent Policy 8.12.5(D), available at

[7] Id.

[8] Id.

[9] As SLED policy makes clear, one portion of the DataMaster test administration process is the provision of the implied consent advisement. See SLED Implied Consent Policy 8.12.5(C)(1), available at