Wednesday, April 16, 2014

SC Administrative Law Court Decisions

CAPTION:
SCDMV, et al vs. Weldon Reagan Marshall

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Appellants:
South Carolina Department of Motor Vehicles and Greenwood Police Department

Respondents:
Weldon Reagan Marshall
 
DOCKET NUMBER:
06-ALJ-21-0810-AP

APPEARANCES:
n/a
 

ORDERS:

ORDER

STATEMENT OF THE CASE

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 The Department contends that the DMVH hearing officer erroneously rescinded the driver’s license suspension of Respondent Weldon Marshall (Marshall). The Administrative Law Court (ALC or Court) has jurisdiction to review this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2006). Upon review of this matter, the DMVH’s Final Order and Decision is reversed.

BACKGROUND

On July 30, 2006, at approximately 2:55 a.m., Officer Ronald Davenport (Officer Davenport) of the Greenwood Police Department observed Marshall’s vehicle run a red light. Officer Davenport began following Marshall’s vehicle. He observed Marshall’s vehicle travel up onto a curb, and then cross the centerline. Officer Davenport initiated a traffic stop. While speaking with Marshall, Officer Davenport detected an odor of alcohol coming from Marshall’s breath. When asked about the odor, Marshall informed Officer Davenport that he had consumed alcohol earlier in the evening. After administering field sobriety tests to Marshall, Officer Davenport arrested Marshall for driving under the influence (DUI) and transported him to a detention center for a DataMaster test.

At the detention center, Marshall refused to submit to the DataMaster test and was issued a Notice of Suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (2006). Marshall subsequently filed a request for an administrative hearing to challenge the suspension. An administrative hearing was held on September 7, 2006. At the hearing, Officer Davenport provided the following testimony:

I gave [Marshall] an implied consent form. I asked him to read along as I read along. I read along, read him the implied consent form. . . . He signed the form. He was given his copy.

Marshall did not cross-examine Officer Davenport regarding this testimony. The implied consent form was not introduced into evidence.

On October 5, 2006, the DMVH hearing officer issued a Final Order and Decision rescinding Marshall’s suspension. Specifically, the hearing officer held in pertinent part:

I find that there being no evidence corroborating whether the Respondent was advised in writing of his Advisement of Implied Consent Rights, Driving Under the Influence Advisement. There are several versions of the Advisement of Implied Consent Rights . . . The arresting officer’s testimony was that he gave the Respondent a copy of an Implied Consent Form for him to read along as it was being read. Without documentation it is unknown whether the Respondent was advised of his rights in writing pursuant to S.C. Code Ann. § 56-5-2950(a). Therefore, I conclude as a matter of law that the Petitioner failed to meet its burden of proof.

The Department now appeals.

ISSUE ON APPEAL

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

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 (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, including the ALC, to review agency decisions is provided by S.C. Code Ann. §1-23-380(A)(5) (Supp. 2006).[1] 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. 2006).

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); 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); State v. Kerr, 330 S.C. 132, 149, 498 S.E.2d 212, 220-21 (Ct. App. 1998). 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).[2] 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[3] and the form setting forth the Section 56-5-2950 rights has been referred to by our Court of Appeals as simply “the implied consent form.”[4] 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.[5] 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.[6] All of SLED’s implied consent advisements are set forth on forms that are provided to law enforcement agencies by SLED.[7] 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).

Here, the DMVH hearing officer found that Officer Davenport handed, and read, “an Implied Consent Form” to Marshall. Nevertheless, she found that, because there are several different implied consent advisements, it was “unknown” whether Marshall was advised of the rights set forth in Section 56-5-2950(a). Therefore, she concluded that judgment should go in Marshall’s favor. As noted above, the possibility of drawing two inconsistent conclusions from the evidence presented does not prevent the agency’s findings from being supported by substantial evidence. However, in this case, there is no conflicting evidence from which to reach two possible conclusions.

In State v. Hyder, 242 S.C. 372, 131 S.E.2d 96 (1963), 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 originally 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 Marshall. Additionally, the fact that Officer Davenport failed to introduce the advisement form into evidence did not prevent Marshall from cross-examining Officer Davenport about the specific advisement given or, for that matter, introducing the advisement form into evidence himself.

Moreover, the evidence that is in the record strongly suggests that Officer Davenport did in fact give Marshall the correct advisement, i.e., the DUI Advisement. For instance, the evidence clearly demonstrates that Officer Davenport, who acted as both the arresting officer and the DataMaster operator, was aware that Marshall had been arrested for DUI. Moreover, the evidence also shows that Officer Davenport took actions that were consistent with a DUI refusal situation, and that were inconsistent with other “implied consent” situations.[8] Furthermore, Officer Davenport testified that, upon arriving at the detention center, he not only handed Marshall a copy of “the implied consent form,” but he also read it to him. Importantly, the name of each implied consent 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). Additionally, each advisement clearly states the statutory violation for which the individual has been detained. See id. For instance, 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.

Taken together, the foregoing evidence was sufficient to establish a prima facie case that Marshall was given the DUI Advisement. The burden therefore shifted to Marshall to present evidence showing that Officer Davenport failed to follow the requisites of Section 56-5-2950(a). Nevertheless, Marshall did not present any evidence to demonstrate that the wrong advisement was given to him.[9] Therefore, there is nothing in the record, other than mere speculation, indicating that Marshall was not given the correct advisement. 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”). In other words, the only reasonable conclusion that could be reached based upon the evidence in the record is that Officer Davenport gave Marshall the DUI Advisement. See 2 Kenneth S. Broun et al., McCormick on Evidence § 338 (John W. Strong ed., 5th ed. 1999).

Additionally, Marshall’s failure to respond to Officer Davenport’s evidence is even more significant in light of the evidence in dispute. 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.[10] S.C. Nat’l Bank v. Florence Sporting Goods, Inc., 241 S.C. 110, 115-16, 127 S.E.2d 199, 202 (1962); 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.”). Importantly, the South Carolina Supreme Court has held that state highway patrol officers and troopers, as well as city police officers, fall within the common law definition of “public officer.” See State v. Bridgers, 329 S.C. 11, 495 S.E.2d 196 (1997) (state highway patrol officers and troopers); State v. Crenshaw, 274 S.C. 475, 266 S.E.2d 61 (1980) (city police officers).[11] As with a prima facie case, the burden of producing evidence to rebut this presumption rests on the person who asserts unlawful or irregular conduct. 31A C.J.S. Evidence § 160 (1996). Furthermore, unless the presumption is rebutted, it becomes conclusive. Id.

Consequently, it was error for the DMVH hearing officer to rescind Marshall’s suspension on the grounds that Officer Davenport’s testimony failed to sufficiently establish that the correct implied consent rights advisement was given to Marshall. 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.

Furthermore, reversal of the DMVH hearing officer’s Final Order and Decision is also warranted by the Court of Appeals’ decision in Taylor, supra. In Taylor, the Court of Appeals, in a case involving a motorist’s refusal to submit to chemical testing, held that “a violation of section 56-5-2950 without resulting prejudice will not lead to a suppression of the evidence obtained pursuant to [section 56-5-2950].” Taylor, 368 S.C. at 38, 627 S.E.2d at 754.[12]

In this case, even if this Court were to agree with the hearing officer’s conclusion that Officer Davenport’s testimony failed to adequately establish that Marshall was given the correct implied consent advisement, based on the existing record, a finding of prejudice would not be warranted.[13] The record clearly demonstrates that Marshall exercised both his right to refuse testing and his right to request an administrative hearing. Additionally, the record also shows that Marshall was advised of his right to have a qualified person of his own choosing conduct an additional independent test.[14] Thus, 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 Marshall’s decision to refuse.

However, the record does not demonstrate this. For instance, Marshall provided no testimony as to how he made his decision to refuse testing. Moreover, Officer Davenport testified that, immediately after taking a seat in the DataMaster room, and before being given the implied consent form, Marshall informed him that he was going to refuse to give a breath sample. Therefore, it is unclear what, if any, effect the implied consent rights advisement had on Marshall’s decision to refuse testing.[15]

Furthermore, 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,[16] the Zero Tolerance Advisement informs motorists that their licenses must be suspended for at least six months if they refuse testing.[17] 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 Marshall was given the DUI Advisement, then it is also insufficient to demonstrate that Marshall 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, the DMVH’s Final Order and Decision must be reversed.

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

January 14, 2008

Columbia, South Carolina



[1] Pursuant to S.C. Code Ann. § 1-23-380(B) (Supp. 2006), administrative law judges must conduct appellate review in the same manner prescribed in Section 1-23-380(A).

[2] 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).

[3] 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).

[4] See 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).

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

[6] Id.

[7] Id.

[8] For instance, Officer Davenport testified that, at the arrest-site, he informed Marshall that he was being arrested for DUI and that he gave Marshall “his DUI advisement,” which was presumably the arrest-site advisement required by S.C. Code Ann. § 56-5-2934 (2006) for DUI and Felony DUI arrests. Moreover, on the Notice of Suspension, Officer Davenport 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). Additionally, under “Vehicle Type,” Officer Grainger checked “Noncommercial,” rather than “Commercial.” Furthermore, to penalize Marshall for his refusal, Officer Davenport suspended Marshall’s 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 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 fine of $200 or imprisonment for a period 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).

[9] McCormick referred to the consequence of not responding to the burden of producing evidence as the risk of remaining silent. McCormick § 338. That risk and ultimate penalty seems quite applicable in this case.

[10] This presumption is subject to exceptions. For instance, it does not apply where the officer’s duties are not specified by law and he is given unlimited discretion. 31A C.J.S. Evidence § 160 (1996). 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 duties are specified by law. See S.C. Code Ann. § 56-5-2950(a). Furthermore, 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.

[11] Other courts have also specifically applied this presumption to law enforcement officers. See, e.g., Steele v. Atkinson, 14 S.C. 154 (1880) (applying presumption to a sheriff); Barnes v. State, 763 So.2d 216 (Miss. Ct. App. 2000) (applying presumption to law enforcement officials); State v. Hensley, 600 N.E.2d 849 (Ohio Ct. App. 1992) (same); Fisk v. Dep’t of Motor Vehicles, 179 Cal. Rptr. 379 (Cal. Ct. App. 1981) (applying presumption to a highway patrol officer); NLRB v. Bibb Mfg. Co., 188 F.2d 825 (5th Cir. 1951) (applying presumption to a municipal police officer).

[12] See also S.C. Code Ann. § 56-5-2950(e) (2006) (“The failure to follow . . . the provisions of this section, shall result in the exclusion from evidence any tests results, if the trial judge or hearing officer finds that such failure materially affected the accuracy or reliability of the tests results or the fairness of the testing procedure.”).

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

[14] 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, Marshall would have been advised of this right regardless of which implied consent advisement he received.

[15] 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.

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

[17] 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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