OF THE CASE
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rescinded the driver’s license suspension of Respondent Thomas Michael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
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?
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).
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
(b) in excess of the statutory authority of the
(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
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).
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.
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. §
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. §
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
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.”).
Consent Rights Advisement
Section 56-5-2950 is
widely called the “implied consent” statute and the rights enumerated in Section 56-5-2950 are commonly referred to as
“implied consent” rights or warnings.
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.
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
All of SLED’s implied consent advisements are set forth on forms that are
provided to law enforcement agencies by SLED.
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
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.
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).
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
IT IS THEREFORE
ORDERED that the DMVH’s Final Order and Decision is REVERSED.
IT IS SO ORDERED.
Ralph K. Anderson, III
April 9, 2008
Columbia, South Carolina