Wednesday, October 22, 2014

SC Administrative Law Court Decisions

CAPTION:
SCDMV, et al vs. Bobby R. Pittman

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Petitioners/Appellant:
South Carolina Department of Motor Vehicles and North Charleston Police Department

Respondents:
Bobby R. Pittman
 
DOCKET NUMBER:
07-ALJ-21-0276-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 erred by rescinding the driver’s license suspension of Respondent Bobby Pittman on the grounds that Petitioners failed to adequately prove that law enforcement properly advised Pittman of his implied consent rights. 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 April 19, 2007, Officer Bordallo of the North Charleston Police Department arrested Pittman for driving under the influence (DUI) and transported him to a detention center for a breath test. Another North Charleston police officer, Officer Wallace, administered the breath test to Pittman. When Pittman was given the opportunity to provide a breath sample, he refused. Based on that refusal, Pittman was issued a Notice of Suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (2006).

Thereafter, pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (2006), Pittman filed a request for an administrative hearing to challenge the suspension. An administrative hearing was held on May 22, 2007. Officer Bordallo testified at the hearing, but Officer Wallace did not. Pittman neither testified nor presented any other evidence. On May 24, 2007, the DMVH hearing officer issued a Final Order and Decision, in which she rescinded Pittman’s suspension. Specifically, she held in pertinent part:

. . . Officer Bordallo did not submit any documents or testimony to show what Implied Consent Advisement was read to Respondent. The officer said that the Datamaster operator read the Implied Consent to Respondent. There was no evidence that the Respondent was told of the consequences of refusing the test. There was no evidence that the Respondent was told of the other consequences involved in the Implied Consent advisement such as the lesser suspension for taking the test and registering over a 0.15%. There was no evidence that the Respondent was provided with a written copy. Therefore, I conclude that prima facie evidence was not presented to show the Respondent was advised of the DUI Advisement.

The Department now appeals.

ISSUES ON APPEAL

1.      Did the DMVH hearing officer err by concluding that Petitioners failed to adequately demonstrate that Pittman was given the implied consent advisement in writing?

2.      Did the DMVH hearing officer err by concluding that Petitioners failed to adequately demonstrate that the correct implied consent advisement was given to Pittman?

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).[1] 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

Implied Consent Laws - Generally

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).[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).

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

a. “In Writing” Requirement

The Department argues that the DMVH hearing officer erred by determining that “[t]here was no evidence” that Pittman was provided with a written copy of the implied consent advisement. (emphasis added). I agree.

At the hearing, Officer Bordallo testified on direct that “Mr. Pittman was advised of his Miranda rights and implied consent.” During the cross-examination of Officer Bordallo, the following exchange occurred between Officer Bordallo and Pittman’s attorney, Michael O’Neal:

O’Neal: Did you see whether or not Officer Wallace gave Mr. Pittman a copy . . . of the implied consent rights advisement form?

Officer Bordallo: Yes, sir.

O’Neal: Are you sure about that?

Officer Bordallo: Yes, sir.

O’Neal: You saw him hand him a copy?

Officer Bordallo: Yes, sir.

O’Neal: Did Mr. Pittman hold it in his hands?

Officer Bordallo: Yes, he did.

O’Neal: Did he read it?

Officer Bordallo: I assume that he did; he looked at it.

O’Neal: Okay. You had it right there right in front of him and he could have looked at it if he wanted to?

Officer Bordallo: Yes.

None of Officer Bordallo’s testimony was contradicted at the hearing.

As set forth above, a hearing officer’s factual determinations should only be reversed when the party challenging those determinations has clearly shown that the DMVH’s decision is unsupported by substantial evidence. Waters, 321 S.C. at 226, 467 S.E.2d at 917. Moreover, simply because testimony in the record is uncontradicted does not render it unsupported by the evidence. Hoard v. Roper Hosp., Inc., --- S.E.2d ----, 2008 WL 1848424 (Ct. App. 2008). Rather, “[t]he question of the inherent probability of the testimony and the credibility of the witness remains.” **. On the other hand, while a tribunal does not have to accept uncontradicted evidence as establishing the truth, the evidence should be accepted unless there is evidence in the record establishing a reason for disbelief. Elwood Constr. Co. v. Richards, 265 S.C. 228, 234, 217 S.E.2d 769, 771 (1975); Jackson v. State, 342 S.C. 95, 535 S.E.2d 926 (2000). Based on the foregoing, I conclude that the hearing officer’s determination that “[t]here was no evidence” that Pittman was provided with a written copy of the implied consent advisement was clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record. In this case, the record discloses no reason to justify disbelieving Officer Bordallo’s testimony.

b. Appropriateness

Section 56-5-2950 is widely called the “implied consent” statute,[3] and the rights set forth in Section 56-5-2950 are commonly referred to as “implied consent” rights.[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 (SUI) 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.[8]

Here, the DMVH hearing officer found that “Officer Bordallo testified that Officer Wallace advised Respondent of his . . . Implied Consent.” Nevertheless, she found that there was no evidence submitted to show which specific implied consent advisement was given to Pittman. Therefore, she found Pittman’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. Although different implied consent advisements exist, there is no evidence that Pittman was given the wrong advisement. Moreover, at no point during the hearing did Pittman ever raise the issue of the appropriateness of the implied consent advisement.

Furthermore, the evidence that is in the record strongly suggests that Officer Wallace did in fact give Pittman the DUI Advisement. For instance, Officer Bordallo testified that Pittman was arrested for DUI and that he was advised of his “implied consent.” In addition, the Notice of Suspension, as completed, is consistent with a DUI refusal situation.[9] Moreover, Officer Bordallo testified that Officer Wallace was certified to administer DataMaster tests, and one portion of the DataMaster administration process is the provision of the implied consent advisement. See SLED Implied Consent Policy 8.12.5(C)(1).[10]

Taken together, the foregoing evidence was sufficient to establish a prima facie case that Pittman was given the DUI Advisement. See State v. Parker, 271 S.C. 159, 163-64, 245 S.E.2d 904, 906 (1978) (testimony that breath test operator 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). Therefore, because none of this evidence was contradicted or weakened in any way, 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.[11]

Additionally, Pittman’s failure to respond to Officer Bordallo’s testimony 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.[12] 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).[13] 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 Pittman’s suspension on the grounds that Petitioners failed to sufficiently establish that the correct implied consent advisement was given to Pittman. 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.

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

May 28, 2008

Columbia, South Carolina



[1] 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).

[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); 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).

[4] See, e.g., 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); 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); see also Haase, 367 S.C. at 266; 625 S.E.2d at 634 (calling Section 56-5-2950 rights “implied consent warnings”).

[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.; 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).

[8] See Cole & Huff, supra note 10, at 341 (setting forth copy of DUI Advisement form).

[9] For example, the “Refusing to submit to a breath, blood or urine test” box located under the heading, “Any age under arrest for DUI” is checked. Moreover, under “Vehicle Type,” the “Noncommercial” box is checked.

[10] The odds that a certified DataMaster operator would inadvertently give a motorist the wrong implied consent form seem to be extremely small. 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.

[11] 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.

[12] 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, namely, Officer Bordallo’s testimony that Pittman was advised of his “implied consent.”

[13] In fact, the South Carolina Supreme Court has specifically applied this presumption to law enforcement officers and other courts have as well. 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).


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