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rescinded the driver’s license suspension of Respondent Weldon Marshall (Marshall).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.
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.
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).
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. 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).
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); 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. §
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 form setting forth the Section 56-5-2950 rights has been referred to by
our Court of Appeals as simply “the implied consent form.” 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
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
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
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.
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.
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. 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.
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. 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. 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).
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.
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.
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
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.
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.
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.
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
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, the Zero Tolerance Advisement informs motorists that their licenses must be
suspended for at least six months if they refuse testing. 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
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.
IT IS THEREFORE
ORDERED that the DMVH’s Final Order and Decision is REVERSED.
IT IS SO ORDERED.
Ralph K. Anderson, III
January 14, 2008
Columbia, South Carolina