Wednesday, October 01, 2014

SC Administrative Law Court Decisions

CAPTION:
SCDMV vs. Matthew William Boyle

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Appellant:
South Carolina Department of Motor Vehicles

Respondents:
Matthew William Boyle
 
DOCKET NUMBER:
06-ALJ-21-0340-AP

APPEARANCES:
n/a
 

ORDERS:

ORDER
SCDL Number: 007382343

STATEMENT OF THE CASE

This matter is before the Administrative Law Court (the “ALC” or “Court”) pursuant to the appeal of the South Carolina Department of Motor Vehicles (the “Department”) of the Order of the South Carolina Division of Motor Vehicle Hearings (the “DMVH”), dated March 1, 2006. The DMVH’s Order was issued in connection with an administrative hearing that was held pursuant to S.C. Code Ann. § 56-5-2951(B)(2) (2006). The ALC has jurisdiction to hear this matter pursuant to S.C. Code Ann. § 1-23-660 (Supp. 2005). Upon consideration of the briefs, the DMVH’s Order is reversed and this case is remanded to the DMVH as set forth below.

BACKGROUND

The license to operate a motor vehicle upon South Carolina’s public highways is not a property right, but is a mere privilege subject to reasonable regulations in the interests of public safety and welfare. Sponar v. S.C. Dep’t of Pub. Safety, 361 S.C. 35, 39, 603 S.E.2d 412, 415 (Ct. App. 2004), cert. granted on November 17, 2005 (quoting 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)). Consistent with this principle, S.C. Code Ann. § 56-5-2950(a) (2006) provides in pertinent part:

A person who drives a motor vehicle in this State is considered to have given consent to chemical tests of his breath, blood, or urine for the purpose of determining the presence of alcohol or drugs or the combination of alcohol and drugs if arrested for an offense arising out of acts alleged to have been committed while the person was driving a motor vehicle while under the influence of alcohol, drugs, or a combination of alcohol and drugs. A breath test must be administered at the direction of a law enforcement officer who has arrested a person for driving a motor vehicle in this State while under the influence of alcohol, drugs, or a combination of alcohol and drugs.

Under S.C. Code Ann. § 56-5-2951(A) (2006), the license of a motorist who refuses to submit to a test provided for under Section 56-5-2950(a) or who registers an alcohol concentration of 0.15% or more on such a test must be immediately suspended. However, under S.C. Code Ann. § 56-5-2951(B)(2) (2006), a motorist who has his license so suspended may request an administrative hearing to challenge the suspension. If such a hearing is requested, the scope of the hearing must be limited to whether the person: (1) was lawfully arrested or detained; (2) was advised in writing of the rights enumerated in Section 56-5-2950; (3) refused to submit to a test pursuant to Section 56-5-2950; or (4) consented to taking a test pursuant to Section 56-5-2950, and the: (a) reported alcohol concentration at the time of testing was fifteen one-hundredths of one percent or more; (b) individual who administered the test or took samples was qualified pursuant to Section 56-5-2950; (c) tests administered and samples obtained were conducted pursuant to Section 56-5-2950; and (d) machine was working properly. S.C. Code Ann. § 56-5-2951(F) (2006).

Importantly, prior to January 1, 2006, the Department’s Office of Administrative Hearings held the hearings requested under Section 56-5-2951(B)(2). However, in the summer of 2005, S.C. Code Ann. § 1-23-660 was extensively amended by Act No. 128, § 22, 2005 S.C. Acts 1503 (the “DMVH Act”). Pursuant to the amended Section 1-23-660, the DMVH was created as a division of the ALC and, as of January 1, 2006, “the duties, functions, and responsibilities of all hearing officers and associated staff” of the Department were transferred to the DMVH. See S.C. Code Ann. § 1-23-660 (Supp. 2005). Therefore, it is now the DMVH that conducts these hearings.

FACTS

On December 2, 2005, Respondent was arrested for driving a motor vehicle while under the influence of alcohol. Respondent was issued a written Notice of Suspension pursuant to Section 56-5-2951(A) based on his alleged refusal to submit to a breath test as required by Section 56-5-2950(a). On December 12, 2005, pursuant to Section 56-5-2951(B)(2), Respondent requested an administrative hearing to challenge the suspension. The very next day, the Department issued an “Order and Notice” that stated: “Due to the Hearing Officer being unavailable within the thirty days as required by statute, it is hereby Ordered that this matter be scheduled for the first available date.” The Order and Notice thereafter stated that the hearing would be held on January 12, 2006 at the Aiken DPS. The hearing was held, as scheduled, on January 12, 2006 by DMVH Hearing Officer Tracy Holland (“DHO Holland”). On March 1, 2006, Robert Harley, the Chief Hearing Officer of the DMVH (“DHO Harley”), issued an Order, which stated: “As a result of the court ruling by the South Carolina Court of Appeals in Starnes v. South Carolina Department of Motor Vehicles,[1] the suspension of your driver’s license is hereby rescinded.” [2]

ISSUES ON APPEAL

1. Since Respondent’s administrative hearing was held thirty-one days after he requested it, does the Court of Appeals’ decision in Starnes require that Respondent’s suspension be rescinded?

2. Since DHO Holland did not issue a final order within thirty days after the hearing was held, does the Court of Appeals’ decision in Starnes require that Respondent’s suspension be rescinded?

3. Did the caption used by DHO Harley in his Order accurately reflect the nature of this action?

STANDARD OF REVIEW

The DMVH is authorized by law to determine contested case hearings of the Department. See S.C. Code Ann. § 1-23-660 (Supp. 2005). Therefore, the DMVH is an “agency” under the Administrative Procedures Act (APA). See S.C. Code Ann. § 1-23-310(2) (2005). As such, appeals from the decisions of the DMVH are properly decided under the APA’s standard of review. See S.C. Code Ann. § 1-23-380(A) (2005); 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). Importantly, the standard used by appellate bodies to review agency decisions is provided by S.C. Code Ann. § 1-23-380(A)(6) (2005), which 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 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.

Thus, pursuant to the APA, this Court’s review is limited to deciding whether DHO Harley’s Order is unsupported by substantial evidence or is affected by an error of law. Bass v. Kenco Group, 366 S.C. 450, 457, 622 S.E.2d 577, 581 (Ct. App. 2005). Substantial evidence is not a mere scintilla of evidence, nor the evidence viewed blindly from one side of the case, but is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion the agency reached in order to justify its action. Hargrove v. Titan Textile Co., 360 S.C. 276, 289, 599 S.E.2d 604, 611 (S.C. Ct. App. 2004). The possibility of drawing two inconsistent conclusions from the evidence does not prevent the agency’s findings from being supported by substantial evidence. Id. at 290, 599 S.E.2d at 611. Importantly, the party challenging an agency action has the burden of proving convincingly that the agency’s decision is unsupported by substantial evidence. Waters v. S.C. Land Resources Conservation Comm’n, 321 S.C. 219, 226, 467 S.E.2d 913, 917 (1996).

DISCUSSION

Starnes involved the interpretation of S.C. Code Ann. § 56-5-2951(H) (Supp. 1998), which was the precursor to S.C. Code Ann. § 56-5-2951(F) (2006). In Starnes, the Department of Public Safety[3] suspended a motorist’s license pursuant to S.C. Code Ann. § 56-5-2951(A) (Supp. 1998) based on the results of a breath test that the motorist submitted to after being arrested for driving under the influence. The Department of Public Safety’s hearing officer sustained the suspension, but the circuit court reversed. The Department of Public Safety subsequently appealed to the Court of Appeals, which affirmed the circuit court’s decision. Importantly, the Court of Appeals based its decision on two different grounds.

First, the Court of Appeals held that the Department of Public Safety lacked subject matter jurisdiction to sustain the suspension since it failed to convene the administrative hearing within the time period set forth in Section 56-5-2951(H). Starnes, 342 S.C. at 222, 535 S.E.2d at 668. At the time, Section 56-5-2951(H) stated in pertinent part: “An administrative hearing must be held within ten days after the request for the hearing is received by the department. However, upon a showing of exigent circumstances by either party, a continuance may be granted not to exceed thirty days.” Id. at 220, 535 S.E.2d at 667. Because the parties agreed that the motorist’s hearing did not occur within the statutory ten-day period and that neither party requested a continuance, the Court of Appeals affirmed the circuit court’s decision on this ground. Starnes, 342 S.C. at 220-22, 535 S.E.2d at 666-68.

Second, the Court of Appeals held that the Department of Public Safety also lacked subject matter jurisdiction to sustain the suspension since it failed to issue a written order to the motorist within thirty days after the administrative hearing was concluded, as was required by Section 56-5-2951(H). Id. at 222, 535 S.E.2d at 668. At the time, Section 56-5-2951(H) stated in pertinent part: “A written order must be issued to the person upholding the suspension of the person’s license, permit, or nonresident’s operating privilege, or denying the issuance of a license or permit within thirty days after the conclusion of the administrative hearing.” Id. (emphasis added). Because the Department of Public Safety admitted that it did not meet this requirement, the Court of Appeals affirmed the circuit court’s decision on this ground as well. Id.

Here, it is not completely clear which Starnes holding DHO Harley relied upon in making his decision to rescind Respondent’s suspension. Notably, the administrative hearing was held thirty-one days after Respondent requested the hearing, and a final order was not issued within thirty days after the hearing was held. Therefore, because of this ambiguity, both Starnes holdings will be discussed in the context of this case.[4]

Timeliness of Hearing

First, the Department argues that, with respect to the issue of whether the suspension should be rescinded due to the untimeliness of the hearing, the first Starnes holding is not applicable since Section 56-5-2951 has been amended since the Starnes decision was issued, and the Department fully complied with the then-current version of Section 56-5-2951 in scheduling the hearing. I agree.

The current subsection of Section 56-5-2951 that sets forth the time period in which an administrative hearing must be held is subsection (F). At the time Respondent requested his hearing,[5] subsection (F) stated in pertinent part:

An administrative hearing must be held within thirty days after the request for the hearing is received by the [Department of Motor Vehicles]. If the department does not hold the hearing within thirty days, a written order must be issued by the department within thirty days. The order must set forth the reasons why the hearing was not held within thirty days, and a new hearing must be scheduled. If the department does not issue a written order within thirty days or fails within thirty days to notify the defendant of a new hearing, the person must have his driver’s license, permit, or nonresident operating privilege reinstated.

S.C. Code Ann. § 56-5-2951(F) (Supp. 2004).

In this case, it is clear that the Department complied with Section 56-5-2951(F). Notably, Respondent requested an administrative hearing on December 12, 2005. On December 13, 2005, the Department issued an “Order and Notice” that stated: “Due to the Hearing Officer being unavailable within the thirty days as required by statute, it is hereby Ordered that this matter be scheduled for the first available date.” The Order and Notice thereafter stated that the hearing would be held on January 12, 2006 at the Aiken DPS. Thus, because the Department issued an Order and Notice within thirty days after receiving Respondent’s hearing request that set forth the reasons why the hearing would not be held within the thirty-day statutory time period and that properly notified Respondent of the scheduled hearing, there was no violation of Section 56-5-2951(F). Therefore, DHO Harley’s Order will not be affirmed on this ground.

Timeliness of Order

Next, the Department argues that, with respect to the issue of whether the suspension should be rescinded due to the untimeliness of the final order, the second Starnes holding should not be followed since it has been effectively overruled by the South Carolina Supreme Court’s recent decision in Johnston v. S.C. Dep’t of Labor, Licensing, and Regulation, S.C. Real Estate Appraisers Bd., 365 S.C. 293, 617 S.E.2d 363 (2005). I agree.

Section 56-5-2951(F) now sets forth the time period in which written orders must be issued. At the time Respondent’s hearing was held,[6] Section 56-5-2951(F) stated in pertinent part: “A written order must be issued to the person upholding the suspension of the person’s license, permit, or nonresident’s operating privilege, or denying the issuance of a license or permit within thirty days after the conclusion of the administrative hearing.” S.C. Code Ann. § 56-5-2951(F) (2006) (emphasis added). Notably, this is the exact same language that was evaluated by the Starnes court in making its second holding. Nevertheless, based on the South Carolina Supreme Court’s decision in Johnston, it is my opinion that the second holding in Starnes is no longer good law and, therefore, it should not be followed here.

In Johnston, a licensed real estate appraiser was charged by the Real Estate Appraisers Board with violating certain regulations applicable to those in his profession. After an administrative hearing was held on the matter, the Board found that the appraiser had committed the alleged violations and, thus, issued a written order imposing a fine and suspending his license. Pursuant to S.C. Code Ann. § 40-60-150(C)(3) (Supp. 2004),[7] the Board was required to serve written notice of its decision on the appraiser within thirty days of issuing its final order. However, notice of the Board’s decision was not properly served on the appraiser until after the requisite thirty-day time period had expired. Thereafter, the appraiser appealed the Board’s decision to the ALC. The ALC reversed the Board’s order, finding that the Board’s failure to serve notice of its decision within the statutorily-mandated time period divested the Board of jurisdiction to decide the matter. Both the circuit court and the Court of Appeals affirmed the ALC’s decision. However, the Supreme Court reversed, holding that the failure by the Board to comply with Section 40-60-150(C)(3) did not affect the Board’s jurisdiction. Instead, the Supreme Court held that the Board’s decision was valid, but ineffective, until it was served upon the appraiser. In making this decision, the Supreme Court explained:

There is no indication the Legislature intended for the time limit to prevent the Board from having the ability to discipline an errant appraiser if the Board fails to serve notice of the written decision within the prescribed time period. Instead, the Legislature intended to speed the resolution of appraiser disciplinary cases for the benefit of all parties involved . . . We note that, although the thirty-day time limit is mandatory, the Legislature has not provided how that mandate is to be enforced. There is no language regarding the consequences if the Board misses the deadline for serving written notice of its decision on the appraiser. Accordingly, we will not assume the Legislature intended the Board to lose its power to act for failing to comply with the statutory time limit.

Johnston, 365 S.C. at 297-98, 617 S.E.2d at 365 (internal citations omitted).

Johnston dictates a similar result in this case. Similar to Section 40-60-150(C)(3), Section 56-5-2951(F) does not include any language regarding the consequences for the DMVH’s failure to issue a final order within the statutory time limit. Therefore, pursuant to Johnston, it would be wrong to assume that the legislature, in cases such as this one, intended for the motorist to have his license reinstated. This seems especially true here, since the legislature, with regard to untimely hearings, did include language in Section 56-5-2951(F) mandating the reinstatement of the motorist’s license. Thus, the fact that the legislature did not include similar language with respect to untimely orders is indicative of the legislature’s intent for the DMVH to retain its power to act even in situations where the DMVH has failed to timely issue a final order.

Moreover, the recent passage of the DMVH Act further warrants the application of Johnston, rather than Starnes, to the present case. Importantly, in Starnes, the Department of Public Safety was the agency responsible for holding Section 56-5-2951(B)(2) hearings and issuing final orders with regard to those hearings. Thus, the Department of Public Safety was deprived of its power to enforce a Section 56-5-2951(A) suspension as a result of its own failure to comply with a statutory provision. Here, however, pursuant to the DMVH Act, the DMVH, and not the Department, is now responsible for holding Section 56-5-2951(B)(2) hearings and issuing final orders with regard to those hearings. Thus, following Starnes in cases such as this one would mean depriving the Department of its power to enforce a Section 56-5-2951(A) suspension not because the Department failed to comply with a statutory provision, but because an unaffiliated agency failed to comply with a statutory provision. In contrast, following Johnston in situations like this one would not create a comparable level of unfairness for motorists. Notably, pursuant to S.C. Code Ann. § 56-5-2951(B)(1) (2006), a motorist who requests an administrative hearing may obtain a “temporary alcohol restricted license” by filing a form with the Department and paying a $100.00 fee. The temporary alcohol restricted license allows the motorist to drive without any restrictive conditions pending the outcome of the administrative hearing or the final decision or disposition of the matter. S.C. Code Ann. § 56-5-2951(B)(1) (2006) (emphasis added). Thus, generally speaking, a delay in the issuance of a final order by the DMVH has little prejudicial effect on motorists.

Respondent, however, argues that the Johnston decision should not be applied in this case, since the Johnston court made it “plain” that it was not overruling Starnes. Specifically, Respondent points to the second footnote of the Johnston decision, which states in pertinent part:

We note that the decisions of South Carolina Dep’t of Highways and Pub. Transp. v. Dickinson, 288 S.C. 189, 341 S.E.2d 134 (1986), and Starnes v. South Carolina Dep’t of Pub. Safety, 342 S.C. 216, 535 S.E.2d 665 (Ct. App. 2000) are not applicable. Both of these cases involve the failure of the Department to hold a hearing within the statutorily-prescribed time period following the suspension of a driver’s license for driving while intoxicated. In these cases, both this Court and the Court of Appeals determined that the failure to hold the requested hearing deprived the Department of jurisdiction to hold the hearing.

Id. at 297 n.2, 617 S.E.2d at 365.

Although this footnote does give me some pause, I do not feel that it should be construed to mean that the second holding in Starnes is still good law. Instead, I think that the purpose of this footnote is to distinguish Johnston from Starnes on the basis that Starnes, unlike Johnston, involved not only an untimely order, but also an untimely hearing. While this footnote makes it clear that the Johnston decision does not have any effect on the validity of the first holding in Starnes regarding untimely hearings, the same cannot be said for the second holding in Starnes regarding untimely orders. Notably in this regard, at no point in this footnote is the second holding in Starnes even addressed.

For these reasons, I deem that Johnston, not Starnes, governs in this case.[8] Accordingly, DHO Harley’s Order is hereby reversed and this case is remanded to DHO Holland so that she may make, based on the existing record, a ruling on the merits of this action.

Caption of DMVH’s Order

Finally, the Department argues that DHO Harley incorrectly listed the Department as the “Petitioner” in the caption of his Order.[9] Specifically, the Department argues that, since the motorist requested the administrative hearing, the motorist is the “Petitioner.” Notably, this issue is fundamentally tied to the question of which party bears the burden of proof in this case. In certain types of actions, to clarify that the burden of proof lies with the agency, the caption is drafted to reflect that the agency is the “Petitioner,” despite the fact that it was not the agency that filed the request for a contested case hearing. See Randy R. Lowell and Stephen P. Bates, South Carolina Administrative Practice and Procedure 201 (2004). Thus, if the burden of proof in this case lies with the Department, then it was proper for DHO Harley to list the Department as the “Petitioner” in the caption of his Order.

Generally speaking, South Carolina law requires the party that maintains “the affirmative of the issue” to bear the burden of proof. See Carter v. Columbia and Greenville R.R. Co., 19 S.C. 20, 28-29 (1883). It could be argued that, because Section 56-5-2951(A) mandates that the Department automatically suspend a motorist’s driver’s license when the motorist either refuses to submit to a blood, breath or urine test or has an alcohol concentration of more than 0.15%, the motorist is, in actuality, the party “maintaining the affirmative of the issue” and, therefore, the burden of proof should be on the motorist. Some state courts have come to such a conclusion. For instance, in Jess v. State, Dept. of Justice, Motor Vehicle Div., 841 P.2d 1137 (Mont. 1992) overruled on other grounds by Bush v. Mont. Dept. of Justice, Motor Vehicle Div., 968 P.2d 716 (Mont. 1998), the Montana Supreme Court held that, in an action for reinstatement of a summarily suspended driver’s license pursuant to Montana’s implied consent law, Mont. Code Ann § 61-8-402, the burden was on the petitioning motorist to prove that the suspension of the license was invalid. In making this ruling, the court noted that Mont. Code Ann § 61-8-403, which granted motorists the right to appeal summary suspensions of their driver’s licenses, did not clearly state who had the burden of proof in the proceeding. However, the court concluded that Mont. Code Ann § 26-1-401 was dispositive of the issue. Notably, Section 26-1-401 provided: “The initial burden of producing evidence as to a particular fact is on the party who would be defeated if no evidence were given on either side. Thereafter, the burden of producing evidence is on the party who would suffer a finding against him in the absence of further evidence.” The court then held that, pursuant to Section 26-1-401, the burden of proof should be on the motorist. In doing so, the court explained:

The State’s action of immediately seizing the driver’s license is authorized upon the appellant’s refusal to comply with the implied consent statute, and review of the revocation is initiated only at the request of the appellant. There is a presumption of correctness to the State’s action until otherwise shown to be improper. Thus, it is the appellant who is asserting the right to reinstatement of his driver’s license by filing a petition with the District Court. If he fails to file his petition or produce any evidence, then the suspension remains in effect. The burden of proof falls upon the appellant to prove the invalidity of the State’s action, rather than require the State to justify its act of revocation.

Id. at 1140 (citations omitted). See also People v. Orth, 530 N.E.2d 210, 215 (Ill. 1988) (where, in holding that the motorist bore the burden of proof in an action for reinstatement of a summarily suspended driver’s license, the Illinois Supreme Court explained its holding by stating: “[T]he statute . . . provides that ‘[s]uch hearings shall proceed in the court in the same manner as in other civil proceedings.’ In the usual civil proceeding, the party requesting judicial relief bears the burden of proof.”)[10]

However, there are several reasons why Jess and Orth should not be followed in the present case. First of all, unlike in Montana and Illinois, the governing rule in South Carolina for determining which party bears the burden of proof in these types of proceedings requires that the burden of proof be placed on the state agency suspending the license. Specifically, ALC Rule 29(B), which is applicable here pursuant to Section 1-23-660,[11] expressly states: “In matters involving the assessment of civil penalties, the imposition of sanctions, or the enforcement of administrative orders, the agency shall have the burden of proof.” (emphasis added). Notably, South Carolina courts have referred to an administrative suspension of a motorist’s driver’s license as a “sanction.” See State v. Price, 333 S.C. 267, 510 S.E.2d 215 (1998). Moreover, other state courts have referred to an order suspending a motorist’s license as an “administrative order.” See, e.g., Butler v. Dep’t of Pub. Safety and Corrections, 609 So.2d 790, 791 (La. 1992); Ott v. Tex. Dep’t of Pub. Safety, 958 S.W.2d 294, 295 (Tex. App. 1998); Johnson v. Dep’t of Revenue, 27 P.3d 943, 944 (Kan. Ct. App. 2001); In re Appeal of Flannery, 39 Pa. D. & C. 4th 323, 324 (Pa. Ct. Com. Pl. 1998). Thus, because the Department is seeking to enforce its administrative order, which imposes a sanction on Respondent, it is clear that it should bear the burden of proof.[12]

Second, even if ALC Rule 29(B) were not applicable here, placing the burden of proof on the Department would still be warranted. Importantly, in situations where it is unclear which party bears the burden of proof, the general rule in South Carolina is that the burden of proof is imposed on the party best able to sustain it. See, e.g., Roberts v. Roberts, 296 S.C. 93, 99, 370 S.E.2d 881, 884 (Ct. App. 1988), affirmed as modified on other grounds by 299 S.C. 315, 384 S.E.2d 719 (1989) (“The general rule is that the burden of evidence is imposed on the party best able to sustain it; so the party having peculiar knowledge of the facts or control of evidence, relating to an issue, has the burden of evidence as to it.”); Swindler v. Hilliard & Brooks, 31 S.C.L. (2 Rich.) 286, 307 (S.C.L. 1846) (“All the analogies of the law lead to the conclusion that the burden of proof lies on him who should best know what the facts are.”). With respect to proceedings such as this one, the Department is in a much better position to present evidence regarding the Section 56-5-2951(F) elements than a motorist is. For instance, a motorist cannot testify as to what the arresting officer observed prior to the arrest; therefore, in almost all cases, it would essentially be impossible for the motorist to conclusively prove that the arrest was not lawful.[13] Therefore, the burden of proof should be imposed on the Department in hearings held under Section 56-5-2951(B)(2).

Third, the Montana and Illinois Supreme Courts notwithstanding, many state courts, in similar situations, have concluded that the burden of proof should be placed on the state agency suspending the license, and not the motorist. See, e.g., Durland v. Peters, 255 S.E.2d 650, 652 (N.C. Ct. App. 1979) (where in proceeding involving a driver’s license suspension for refusal to submit to a breathalyzer test in violation of North Carolina’s implied consent law, the North Carolina Court of Appeals held that the Commissioner of the Division of Motor Vehicles bore the burden of proof); Ex parte Boykin, 643 So.2d 986, 987 (Ala. 1993) (in a proceeding involving a summary driver’s license suspension for refusal to submit to a chemical test pursuant to Alabama’s implied consent statute, the Alabama Supreme Court concluded that “the Department failed to carry its burden of proof”); Willis v. State, 701 P.2d 10, 11 (Ariz. Ct. App. 1985) (in a proceeding involving an automatic driver’s license suspension for refusal to submit to a breath test in violation of Arizona’s implied consent law, the burden of proof was on the State); Sipes v. State ex rel. Dep’t of Pub. Safety, 950 P.2d 881 (Okla. Ct. App. 1997) (in a proceeding involving a driver’s license suspension for refusal to submit to a chemical test in violation of Oklahoma’s implied consent statute, the Oklahoma court held that the district court may review the evidence “to decide whether [the Department of Public Safety] has in fact met its threshold burden of proof”); Spinner v. Dir. of Revenue, 165 S.W.3d 228, 230 (Mo. Ct. App. 2005) (where in proceeding involving a summary driver’s license suspension for driving with a blood alcohol concentration above the legal limit, the Missouri Court of Appeals held: “The burden of proof is on the director of revenue to establish grounds for the suspension or revocation by a preponderance of the evidence.”); Coombs v. Pierce, 2 Cal. Rptr. 2d 249 (1991) (California DMV bore the burden of proof at an administrative proceeding to establish the validity of breath test results); Cole v. Driver and Motor Vehicles Servs. Branch, 87 P.3d 1120, 1131 (Or. 2004) (in a proceeding involving a summary driver’s license suspension for driving with a blood alcohol concentration above the legal limit, the Oregon Supreme Court held that the DMV bore the burden of proof); Montpetit v. Comm’r of Pub. Safety, 392 N.W.2d 663, 667 (Minn. Ct. App. 1986) (the Minnesota Commissioner of Public Safety bore the burden of proof in a proceeding involving a driver’s license suspension for driving with a blood alcohol concentration above the legal limit).

Finally, there are several policy reasons for placing the burden of proof on the Department, and not the motorist. First, by placing the burden of proof on the Department, the risk of erroneous suspension of the motorist’s driver’s license is lessened. The Illinois Supreme Court made this point clear in Orth:

The danger is that placing the burden of proof upon the motorist will discourage the State from properly maintaining its equipment, training its personnel, or preserving its records. And while one might argue about the degree of this risk, it cannot be denied that placing the burden of proof upon the State would reduce it very significantly. State law enforcement personnel are hardly likely to be lax in their breathalyzer procedures if they know that they will have to prove the results or face the rescission of a summary suspension.

Orth, 530 N.E.2d at 214-15. Second, driver’s licenses are quite important to individuals and, therefore, the process of taking away a driver’s license should not be taken lightly. For instance, in Berlinghieri v. Dep’t of Motor Vehicles, 657 P.2d 383, 387-88 (Cal. 1983), the California Supreme Court described in detail the practical importance of a driver’s license:

In our present travel-oriented society, the retention of a driver’s license is an important right to every person who has obtained such a license . . . [T]he reality of contemporary society is that public transportation systems may not meet the needs of many travelers and other forms of transportation, such as taxicabs, are not economically feasible for a large portion of the population. Whether a driver’s license is required only for delivering bread, commuting to work, transporting children or the elderly, meeting medical appointments, attending social or political functions, or any combination of these or other purposes, the revocation or suspension of that license, even for a six-month period, can and often does constitute a severe personal and economic hardship.

Third, it simply seems unfair to require the motorist to prove his own innocence or risk suspension of his driver’s license. See Peabody Coal Co. v. Ralston, 578 N.E.2d 751, 754 (Ind. Ct. App. 1991) (“Similar to the rationale for affixing the ultimate burden of proof on the state in criminal matters, it would be a fundamentally unfair procedure to shift the burden of persuasion to one charged with a [regulatory] violation to prove his innocence.”).

For these reasons, I find that the burden of proof should be placed on the Department in cases involving driver’s license suspensions under Section 56-5-2951(A). Because I find that the Department bears the burden of proof in this case, it was not error for DHO Harley to list the Department as the “Petitioner” in the caption of his Order.

order

IT IS HEREBY ORDERED that DHO Harley’s Order is REVERSED and the case is REMANDED to DHO Holland so that she may make, based on the existing record, a ruling on the merits of this action.

AND IT IS SO ORDERED.

______________________________

John D. McLeod

Administrative Law Judge

September 11, 2006

Columbia, South Carolina



[1] The parties, as well as this Court, have assumed that DHO Harley was referring to Starnes v. S.C. Dep’t of Pub. Safety, 342 S.C. 216, 535 S.E.2d 665 (Ct. App. 2000).

[2] It is questionable whether DHO Harley possessed the authority to issue an order in this case. Although it appears that DHO Harley was initially assigned to this case, ultimately, it was DHO Holland who presided over the hearing. Nevertheless, because of my holding in this case, this issue need not be addressed.

[3] Prior to 2003, the Department of Public Safety enforced Section 56-5-2951 suspensions. However, when the Department of Motor Vehicles was established in 2003, it assumed this duty, among many others. See Act No. 51, § 3, 2003 S.C. Acts 226 (adding S.C. Code Ann. § 56-1-5).

[4] Respondent states twice in his brief that the only Starnes holding applicable to this case is the second holding. Nevertheless, to clear up any confusion that DMVH hearing officers may have with respect to the first holding in Starnes, it will be discussed herein.

[5] Effective June 13, 2006, subsection (F) of Section 56-5-2951 was amended to reflect the passage of the DMVH Act. Section 56-5-2951(F) now states in pertinent part:

An administrative hearing must be held within thirty days after the request for the hearing is received by the Division of Motor Vehicle Hearings. If the Division of Motor Vehicle Hearings does not hold the hearing within thirty days, the Division of Motor Vehicle Hearings must issue a written order within thirty days, stating the reasons why the hearing was not held within thirty days, and providing a schedule date for the hearing. If the Division of Motor Vehicle Hearings does not issue a written order within thirty days or fails within thirty days to notify the person of a hearing date, the person must have his driver’s license, permit, or nonresident operating privilege reinstated.

See Act No. 381, § 7, 2006 S.C. Acts.

[6] Effective June 13, 2006, Section 56-5-2951(F) was amended to state in pertinent part: “A written order must be issued to all parties either reversing or upholding the suspension of the person’s license, permit, or nonresident’s operating privilege, or denying the issuance of a license or permit within thirty days after the conclusion of the administrative hearing.” See Act No. 381, § 7, 2006 S.C. Acts.

[7] S.C. Code Ann. § 40-60-150(C)(3) (Supp. 2004) stated in pertinent part: “The board shall render a decision and shall serve notice, in writing within thirty days, of the board’s decision to the applicant or appraiser charged.”

[8] The fact that the Johnston court did not expressly overrule the second holding in Starnes does not mean that it did not effectively overrule it. Notably, South Carolina courts have recognized that cases can be effectively overruled by subsequent inconsistent decisions even where they are not expressly overruled. See, e.g., Rose v. Thrash, 291 S.C. 459, 354 S.E.2d 378 (1987) (noting that Moyd v. Johnson, 289 S.C. 482, 347 S.E.2d 97 (1986), “effectively” overruled prior inconsistent cases); State v. Childers, 358 S.C. 614, 595 S.E.2d 872 (Ct. App. 2004) (recognizing that State v. Gandy, 283 S.C. 571, 324 S.E.2d 65 (1984), was “implicitly” overruled in part by Casey v. State, 305 S.C. 445, 409 S.E.2d 391 (1991)).

[9] Clearly, DHO Harley’s decision to designate the Department as the “Petitioner” in his Order had no effect on his ultimate holding in this matter. Nevertheless, because I have determined that this case should be remanded, I will address this issue.

[10] Although a few other cases were found in which a state court determined that the motorist bore the burden of proof in actions for reinstatement of a summarily suspended driver’s license, these cases can be distinguished in that they involve a statute that clearly places the burden of proof on the motorist. For instance, in Butcher v. Kan. Dep’t of Revenue, 124 P.3d 1078, 1080 (Kan. Ct. App. 2005), the Kansas Court of Appeals held that the burden of proof was on the motorist in a proceeding involving an administrative suspension of a motorist’s driver’s license for refusal to submit to a breathalyzer test pursuant to Kansas’ refusal statute, Kan. Stat. Ann. § 8-1014. In doing so, the court cited Kan. Stat. Ann. § 8-1020(k), which states: “At the hearing, the licensee has the burden of proof by a preponderance of the evidence to show that the facts set out in the officer’s certification are false or insufficient and that the order suspending or suspending and restricting the licensee’s driving privileges should be dismissed.”) See also Wilson v. Idaho Transp. Dep’t, 136 Idaho 270, 276, 32 P.3d 164, 170 n.2 (Idaho Ct. App. 2001) (where, in finding that the motorist bore the burden of proof in an action for the reinstatement of his driver’s license, which was administratively suspended pursuant to Idaho Code § 18-8002A, the Idaho Court of Appeals cited Idaho Code § 18-8002A(7), which stated: “The burden of proof shall be on the person requesting the hearing.”).

[11] Section 1-23-660 states in pertinent part: “Notwithstanding another provision of law, the hearing officers shall conduct hearings in accordance with . . . the rules of procedure for the Administrative Law Court . . .”

[12] Although a number of South Carolina cases have held that, generally speaking, an individual seeking to prove that an administrative agency’s decision is erroneous has the burden of proof, see e.g., Tennis v. S.C. Dep’t of Social Servs., 355 S.C. 551, 558, 585 S.E.2d 312, 316 (Ct. App. 2003); Duke Power Co. v. Pub. Serv. Comm’n of S.C., 343 S.C. 554, 558, 541 S.E.2d 250, 252 (2001); Porter v. S.C. Pub. Serv. Comm’n 333 S.C. 12, 20, 507 S.E.2d 328, 332 (1998), no such cases were found that involved enforcement actions.

[13] The fundamental question in determining the lawfulness of an arrest is whether probable cause existed to make the arrest. State v. Baccus, 367 S.C. 41, 49, 625 S.E.2d 216, 220 (2006). Importantly, probable cause for a warrantless arrest exists when the circumstances within the arresting officer’s knowledge are sufficient to lead a reasonable person to believe that a crime has been committed by the person being arrested. Id. (emphasis added).