OF THE CASE
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Hearing Officer erroneously rescinded the driver’s license suspension of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).
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.
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
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
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)
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?
STANDARD OF REVIEW
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). 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
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
(b) in excess of the statutory authority of
(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
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
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
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
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.
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
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 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
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.
AND IT IS SO ORDERED.
CAROLYN C. MATTHEWS
Columbia, South Carolina