Friday, April 20, 2018

SC Administrative Law Court Decisions

SCDMV vs. Alice Trotter

South Carolina Department of Motor Vehicles

South Carolina Department of Motor Vehicles

Alice Trotter





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 and Supp. 2006). The Department contends that the DMVH Hearing Officer erroneously rescinded the driver’s license suspension of Respondent Alice Trotter (“Trotter”). The Administrative Law Court (“ALC” or “Court”) has jurisdiction to review this matter pursuant to S. C. Code Ann. § 1-23-600 (Supp. 2006).


On February 8, 2006, at approximately 2:10 a.m., Corporal Glenn T. Levine of the South Carolina Highway Patrol was on routine patrol in Richland County when he observed a Pontiac Firebird exiting out of a gas station on Bush River road, nearly colliding with his cruiser. Corporal Levine turned around to follow the vehicle, but it had already made it to another gas station on the opposite side of Interstate 26. When he caught up with the vehicle, he identified the driver as Respondent. At Corporal Levine’s request, Respondent got out of her vehicle, but she was belligerent and used profanity. She also had an odor of alcohol about her person. Corporal Levine requested that she submit to field sobriety tests. In administering the HGN test, he detected nystagmous at a 45% angle. In attempting the heel-to-toe test, he noted that Respondent was very unsteady on her feet. Corporal Levine then made a determination that Respondent was so obviously under the influence that further field sobriety tests would be unnecessary. Respondent was then arrested for driving under the influence and taken to the detention center for a breath test.

Respondent informed Corporal Levine immediately that she would not be taking the test. Nevertheless, in the DataMaster room, Corporal Levine, a certified DataMaster operator, began the video and read the Implied Consent Advisement form verbatim to Respondent. He also gave her a copy of the advisement, which she acknowledge receipt of with her signature. After that, Corporal Levine readied the DataMaster machine, and allowed it to self-test before he entered Respondent’s refusal. Corporal Levine then completed the Notice of Suspension.

After it received a Notice of Suspension from law enforcement, DMV suspended Trotter’s driver’s license for a period of ninety days in accordance with state law. Trotter then requested an administrative hearing. On June 26, 2006, Hearing Officer Robert Harley convened the contested case hearing. Corporal Levine appeared and testified. Respondent was represented by attorneys Reese Joye and John O’Leary. Hearing Officer Harley subsequently issued an order rescinding Trotter’s suspension on the grounds that:

I find that the state witness failed to prove that he advised the Respondent of the Implied Consent Rights in writing before offering her a breath test. The officer testified that he read the Implied Consent Advisement to Respondent. He then proceeded to read into the record the statement he read Respondent. He then stated, “After she was read those rights, there was no need to check her mouth because she had already refused the test. There was no need to stamp for the 20 minute observation period because she had already refused the test.”

The officer was required to read the rights and provide Respondent a copy in writing before offering her an opportunity to submit to a breath test. A videotape of breath site would remove any doubt regarding the testing procedure. There being no evidence corroborating the DataMaster operator’s testing procedure, I conclude as a matter of law that the Petitioner has failed to meet its burden of proof.

(Final Order and Decision of July 24, 2006)

DMV then timely filed the instant appeal.


1.                  Did the Hearing Officer err when he determined that the officer’s reading of the Advisement of Implied Consent Rights did not satisfy the requirements of the Implied Consent statute?


The DMVH is authorized by law to determine contested cases arising from the Department. See S. C. Code Ann. § 1-23-600 (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). 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).[2] The scope of judicial review in cases such as this is limited by the APA, S. C. Code Ann. Section 1-23-380(A)(5). That section states:

The court shall not substitute its judgment for that 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.

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, 310 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 Corp., 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.


Implied Consent Rights Advisement

The Record is ambiguous regarding whether Respondent appeared at the hearing. Regardless, she did not testify and offered no rebuttal to Corporal Levine’s recollection of the events of the night of her suspension. He testified that she was irate, belligerent and repeatedly used profanity. Respondent Trotter insisted on a number of occasions that she would refuse the breath test. One of the refusals clearly came after the reading of the Implied Consent Rights:

Corporal Levine: . . . I aborted the test because she said she was not going to take it, she was sure of that. She was written up for refusal. She was also after she was read her implied consent warning, which I’d like . . . if you guys would stipulate to it, if not I’ll read it verbatim.

The Court: Go ahead and read it. Just read it.

ROA Tr. p. 11, l. 25- p. 12, l. 6 (emphasis added).

Absent any proof to the contrary, prima facie evidence is sufficient to establish that law enforcement complied with Section 56-5-2950 in administering a breath test. State v. Parker, 271 S. C. 159, 164, 245 S. E. 2d 904, 906 (1978). Prima facie evidence is 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. 2d 262, 266 (1937). “The words [prima facie evidence] import that the evidence produces for the time being a certain result; but that result may be repelled.” Mack v. Branch No. 12, Post Exchange, Fort Jackson, 207 S. C. 258, 272, 35 S. E. 2d 838, 844 (1945).

Initially, it is noteworthy that Corporal Levine testified without contradiction that he was an experienced officer of fourteen years and was fully trained and certified as a DataMaster operator. In the absence of 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). It has been held that a breath test operator’s testimony that he has been certified by the South Carolina Law Enforcement Division constitutes prima facie evidence that the breath test was administered by a qualified person in the proper manner. Parker, 271 S. C. at 163-64, 245 S. E. 2d at 906; South Carolina Department of Motor Vehicles v. Bennett, Docket No 06-ALJ-21-0756-AP [Order of Judge Anderson of October 5, 2007 (at pp. 11, 12)].

Moreover, the record also clearly indicates without contradiction that the Implied Consent Advisement was in fact read to Respondent Trotter, and that she signed a statement indicating that the advisement was given to her timely and in writing. The question, therefore, is whether substantial evidence supports the suggestions hinted at by the Hearing Officer that the notice was not timely or, alternatively, that the refusal could only be proper after the test was fully administered (i.e., mouth checked, twenty minute waiting period observed, etc.).

Respondent Trotter was advised of her rights on several occasions. She was twice advised of her rights at the scene of the stop. The first of those can be read to have included the Miranda warnings only. The second of them appears to have included elements of the Implied Consent Advisement as well, specifically advising Respondent Trotter of the consequences of refusing the breath test. The testimony was not in minute detail, yet it is equally clear there was no evidence that overcame the dual presumptions that Corporal Levine properly discharged his duties and that as a trained and certified DataMaster operator he followed procedures in the proper manner.

Corporal Levine’s testimony is somewhat disjointed, in some cases moving backward or forward in time as he remembered certain items. Read in context, however, the following is clear:

1.)                              Respondent Trotter was highly irate and belligerent, and engaged in profanity.

2.)                              Respondent Trotter indicated in no uncertain terms that she would not take the breath test on no less than three occasions (in which she did not make any additional statement but was non-responsive when offered the test, as she had said she would be).

3.)                              While it is not entirely clear from Corporal Levine’s testimony at what point all of the refusals occurred, the only reasonable view of the record is that Respondent Trotter clearly refused the test, and maintained this refusal even after she was read her Implied Consent Advisement while being videotaped, as Corporal Levine keyed the data into the machine.

The Court notes that the only evidence of record indicating whether or not Respondent was given the Implied Consent Advisement in writing indicates that she was given the Advisement in writing and signed the copy indicating she was given it. Even if this were not the case, however, in the face of uncontradicted evidence that she was read the Advisement verbatim, and in the absence of evidence that she was prejudiced by not being given a copy in writing, the evidence of the refusal should not be suppressed. State v. Huntley, 349 S. C. 1, 6, 562 S. E. 2d 472, 474 (2002); Taylor v. S. C. Dep’t. of Motor Vehicles, 368 S. C. 33, 38, 627 S. E. 2d 751, 753, 754 (Ct. App. 2006). In this case, Respondent did not testify or offer evidence. Neither did she argue any view of the facts of the case by which prejudice might be inferred.

Nevertheless, it appears possible that the Hearing Officer may have focused on the fact that Corporal Levine did not undertake all of the procedural foundations of the breath test, given that Respondent Trotter had already refused. Final Order and Decision of July 24, 2006, p. 6.

It is also noteworthy that this case is a refusal case. Respondent declared repeatedly prior to the breath test that she would not take it, and was non-responsive when the test was offered in the DataMaster sequence as she had indicated she would be.

Case law in South Carolina overwhelmingly repudiates the notion that the State must show evidence of all foundations for the testing procedure in cases where the test was refused. State v. Jansen, 305 S. C. 320, 408 S. E. 2d 235 (1991); S. C. Dep’t. of Motor Vehicles v. Nelson, 364 S. C. 514, 613 S.E. 2d 544 (Ct. App. 2005); Ex Parte Horne, 303 S. C. 30, 397 S. E. 2d 788 (Ct. App. 1990). This Court has so held as well. Santos v. S. C. Dep’t. of Motor Vehicles, Docket No. 07-ALJ-21-0147-AP (Order of Judge McLeod of November 29, 2007). Moreover, SLED policies themselves make clear that these foundations may be skipped in the event of a refusal. SLED Policy Implied Consent-Administration of Breath Tests, 8.12.5.F.1 indicates:

A subject may be removed from the testing site at any time after a refusal occurs. If a subject gives the test operator a refusal after the advisement process, checking of the mouth, time stamp, and/or observation period may be waived.

In addition, Corporal Levine’s run through the sequence was merely an attempt to fully conform to SLED policy. SLED Policy 8.12.5.F.3 states:

Regardless of the type of refusal, the operator will proceed with the applicable breath test sequence on the DataMaster. Unless unusual circumstances exist, all refusals will be entered into the DataMaster. This action is done solely for documentary and statistical purposes, not to check the instrument.

The Hearing Officer further suggests that Corporal Levine’s testimony was faulty in that he did not offer the breath test videotape into evidence to corroborate his testimony. The nature of prima facie evidence is that in the absence of proof to the contrary, it is sufficient to establish that law enforcement complied with Section 56-5-2950 in administering a breath test. See Parker, 271 S. C. at 164, 245 S. E. 2d at 906. Given that this evidence constituted prima facie proof, and given that it was not contradicted or challenged, it is unnecessary for it to be corroborated by admission of the video. See S. C. Dep’t. of Motor Vehicles and S. C. Dep’t. of Public Safety v. Whitehead, Docket No. 06-ALJ-21-0853-AP (Order of Judge Geathers of June 18, 2007).

The scope of the hearing was limited to whether Respondent (1) was lawfully arrested, (2) was advised in writing of her section 56-5-2950 rights, and (3) refused to submit to a test. S. C. Dep’t. of Motor Vehicles v. Nelson, 364 S. C. at 526, 613 S.E. 2d at 550. The arrest occurred because Corporal Levine observed Respondent’s erratic driving, the odor of alcohol about her person, and her poor performance on sobriety tests. This issue does not appear to be contested. Respondent was advised orally and in writing of her Implied Consent rights. At least one of these advisements was given as Corporal Levine was keying data into the DataMaster, and prior to offering her the opportunity to take the test. Respondent Trotter consistently stated that she would refuse the test, and did in fact refuse the test at that time it was offered Because no reading of the record supports the conclusion that law enforcement failed to meet all applicable elements of S. C. Code Ann. § 56-5-2950, the Hearing Officer’s decision to rescind the suspension was clearly erroneous in view of the reliable, probative and substantial evidence on the whole record.


IT IS THEREFORE ORDERED that the DMVH’s Final Order and Decision is REVERSED and the Department’s suspension of Respondent Trotter’s driver’s license is reinstated.




Administrative Law Judge

December 3, 2008

Columbia, South Carolina

[1] Although the Department presented an additional issue in this appeal, because the issues discussed herein are dispositive, the other issue need not be addressed. See Futch v. McAllister Towing of Georgetown, Inc., 335 S. C. 598, 613, 518 S. E. 2d 591, 598 (1999) (noting that an appellate court need not address remaining issues when a prior issue is dispositive).

[2] 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).