Tuesday, October 21, 2014

SC Administrative Law Court Decisions

CAPTION:
Teena M. Epps vs. SCDMV, et al

AGENCY:
South Carolina Department of Motor Vehicles

PARTIES:
Appellant:
Teena M. Epps

Respondents:
South Carolina Department of Motor Vehicles and South Carolina Department of Public Safety
 
DOCKET NUMBER:
08-ALJ-21-0103-AP

APPEARANCES:
n/a
 

ORDERS:

ORDER

STATEMENT OF CASE

This matter is an appeal by Appellant Teena M. Epps 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. 2007). Epps contends that the DMVH hearing officer erroneously sustained her driver’s license suspension for refusing to submit to a breath test. Specifically, Epps claims that she was denied her right to counsel prior to the administration of the test. 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 affirmed.

BACKGROUND

On September 29, 2007, Epps was arrested for driving under the influence (DUI) and was transported to the Lexington County Detention Center (LCDC) for a breath test. Prior to the administration of the breath test, Epps expressed a desire to speak with an attorney, but she was denied the opportunity to do so. Thereafter, Epps refused to submit to the breath test and was issued a Notice of Suspension pursuant to S.C. Code Ann. § 56-5-2951(A) (2006).

Epps subsequently filed a request with the DMVH for an administrative hearing to challenge her suspension. An administrative hearing was held on January 16, 2008. On February 15, 2008, the DMVH hearing officer issued a Final Order and Decision, in which he sustained Epps’ suspension. Epps now appeals.

ISSUE ON APPEAL

Was Epps entitled to consult with counsel prior to deciding whether to submit to the breath test?

STANDARD OF REVIEW

The DMVH is authorized by law to determine contested cases arising from the South Carolina Department of Motor Vehicles (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. § 1-23-505(2) (as amended by 2008 S.C. Act No. 334). As such, the APA’s standard of review governs appeals from decisions of the DMVH. See S.C. Code Ann. § 1-23-380 (as amended by 2008 S.C. Act No. 334); 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(5) (as amended by 2008 S.C. Act No. 334). See S.C. Code Ann. § 1-23-600(E) (as amended by 2008 S.C. Act No. 334) (directing administrative law judges to conduct appellate review in the same manner prescribed in § 1-23-380). 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(5) (as amended by 2008 S.C. Act No. 334).

DISCUSSION

Epps argues that she was entitled to consult with counsel prior to the administration of the breath test. The Court disagrees.

The issue presented here was previously addressed by our Supreme Court in State v. Degnan, 305 S.C. 369, 409 S.E.2d 346 (1991). In that case, the appellant was arrested for DUI and transported to a detention center for a breathalyzer test. The appellant wanted to call her attorney before taking the test, but no means were made available. She subsequently refused to submit to the breathalyzer test. At trial, over objection, the appellant’s refusal to submit to the breathalyzer was admitted into evidence, and she was convicted of DUI. On appeal of her conviction, the appellant argued that she was entitled to consult with counsel prior to deciding whether to submit to the breathalyzer test. The Supreme Court disagreed, explaining:

An accused is entitled to assistance of counsel only at critical stages of the proceedings. While this Court has not addressed whether administration of a breathalyzer test is a critical stage, many jurisdictions hold that it is not. The basis for this rule is two-prong: (1) a defendant has no constitutional right to refuse to submit to chemical analysis under Schmerber v. California [384 U.S. 757 (1966)], and (2) under implied consent laws, driving upon state highways implies consent to the use of chemical analysis. . . . Although some jurisdictions allow a “reasonable attempt” to consult with counsel, we reject this view. To hold otherwise would interfere with proper administration of the breathalyzer test as required by State v. Parker [271 S.C. 159, 245 S.E.2d 904 (1978)]. Accordingly, we hold that administration of a breathalyzer test is not a critical stage at which an accused is entitled to counsel.

Degnan, 305 S.C. at 370-71, 409 S.E.2d 347-48 (citations and footnotes omitted).

Thus, under Degnan, Epps was not entitled to consult with counsel prior to the administration of the breath test. Therefore, the hearing officer did not err by admitting the evidence relating to Epps’ refusal to submit to that test. Accordingly, the DMVH’s Final Order and Decision must be affirmed.

ORDER

IT IS THEREFORE ORDERED that that the DMVH’s Final Order and Decision is AFFIRMED.

AND IT IS SO ORDERED.

______________________________

Ralph K. Anderson, III

Administrative Law Judge

September 4, 2008

Columbia, South Carolina


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