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.
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).
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.
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
(b) in excess of the statutory authority of the
(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
S.C. Code Ann. § 1-23-380(5) (as amended by 2008 S.C. Act No. 334).
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).
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.
IS THEREFORE ORDERED that that the DMVH’s Final Order and Decision is AFFIRMED.
IT IS SO ORDERED.
Ralph K. Anderson, III
September 4, 2008
Columbia, South Carolina