State v. Degnan

Chandler, Justice:

Bobbie Laney Degnan (Degnan) appeals her conviction for driving under the influence (DUI), first offense.

We affirm.

*370FACTS

On June 10,1988, Degnan was arrested for DUI. She had a strong odor of alcohol on her breath, had difficulty walking, and her speech was slurred. Upon arrival at the West Columbia jail, she told the breathalyzer operator, Deputy Brown, that she had drunk five or six beers.

Deputy Brown offered Degnan a breathalyzer test, advising that refusal would result in a 90-day suspension of her driver’s license. She was also advised that, if she took the breathalyzer, “either the arresting officer or I will give you reasonable assistance in contacting a qualified person, of your own choosing to conduct an independent test, at your own expense.” Degnan wanted to call her attorney before taking the test but no means were made available. She refused the test, and was then allowed to use the telephone.

At trial, over objection, Degnan’s refusal to submit to the breathalyzer was admitted into evidence.

ISSUES

1. Is a motorist entitled to consult with counsel prior to deciding whether to submit to a breathalyzer test?
2. Was Degnan deprived of the right to obtain an independent blood test?

DISCUSSION

I. RIGHT TO COUNSEL

An accused is entitled to assistance of counsel only at critical stages of the proceedings. State v. Williams, 263 S.C. 290, 210 S.E. (2d) 298 (1974).

While this Court has not addressed whether administration of a breathalyzer test is a critical stage,1 many jurisdictions hold that it is not.2 The basis for this rule is two-prong: (1) a defendant has no constitutional right to refuse to submit to *371chemical analysis under Schmerber v. California,3 and (2) under implied consent laws, driving upon state highways implies consent to the use of chemical analysis. See, State v. Howren, 312 N.C. 454, 323 S.E. (2d) 335 (1984). Moreover, the U.S. Fourth Circuit Court of Appeals has held that no sixth amendment right to counsel is violated when an arrested person is not allowed to consult an attorney before deciding to submit to a breathalyzer. Logan v. Shealy, 660 F. (2d) 1007 (4th Cir. 1981).

Although some jurisdictions allow a “reasonable attempt” to consult with counsel,4 we reject this view. To hold otherwise would interfere with proper administration of the breathalyzer test as required by State v. Parker.5

Accordingly, we hold that administration of a breathalyzer test is not a critical stage at which an accused is entitled to counsel.

II. INDEPENDENT BLOOD TEST

In State v. Lewis, 266 S.C. 45, 221 S.E. (2d) 524 (1976), we held that the Implied Consent Statute6 requires law enforcement officers to lend assistance in obtaining additional blood tests “only to a person who has taken the breathalyzer test,” 266 S.C. at 48, 221 S.E. (2d) at 526. Although we noted that persons who refuse the test are entitled to a reasonable opportunity to obtain an independent blood test, we held that affirmative assistance is not required.

Here, there is no evidence that Degnan ever requested an independent test, or inquired whether one was available. Further, after refusing the breathalyzer, she was permitted to *372use the telephone, which afforded her the opportunity to call an attorney or physician to obtain independent testing.

Assuming, as Degnan contends, that police officers effectively prevented her from obtaining an independent test by advising her that she “must take the [breathalyzer] before an alternate test would be made available,” we find any error harmless.

Degnan asserted that denial of an independent blood test mandated suppression of her refusal to take the breathalyzer. The record reflects, however, that she admitted drinking five or six beers, was unable to complete the alphabet, was dazed, had trouble walking and had to lean on the car. In light of the overwhelming evidence of her intoxication, Degnan has shown no prejudice in admission of her refusal to submit to the breathalyzer. See, State v. Hyder, 242 S.C. 372, 131 S.E. (2d) 96 (1963). Accordingly, the judgment below is

Affirmed.

Gregory, C.J., and Harwell and Toal, JJ., concur. Finney, A.J., dissenting in separate opinion.

We disagree with Degnan’s assertion that this Court held in State v. Zaremba, 300 S.C. 81, 386 S.E. (2d) 459 (1989) that the right to counsel attaches prior to administration of the breathalyzer. Zaremba involved continued interrogation by police after an accused requests counsel. Breathalyzer tests are clearly non-testimonial, Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826,16 L. Ed. (2d) 908 (1966), and, therefore, Zaremba is inapplicable to the present case.

See, generally, cases collected at West’s Keynote No. 641.3(8), Criminal Law; State v. Howren, 312 N.C. 454,323 S.E. (2d) 335 (1984); State v. Ankney, *371109 Idaho 1,704 P. (2d) 333 (1985); Wright v. State, 288 Ark. 209,703 S.W. (2d) 850 (1986); State v. Jones, 457 A. (2d) 1116 (Me. 1983); People v. Jelneck, 148 Mich. App. 456, 384 N.W. (2d) 801 (1986); Anderson v. Commissioner, 379 N.W. (2d) 678 (Minn. App. 1986); State v. Armfield, 214 Mont. 229, 693 P. (2d) 1226 (1984); State v. Klingelhoefer, 222 Neb. 219, 382 N.W. (2d) 366 (1986); State v. DeLorenzo, 210 N.J. Super. 100, 509 A. (2d) 238 (1986); Dept. of Transp. v. Mumma, 79 Pa. Cmwlth. 108, 468 A. (2d) 891 (1983); State v. Sayles, 124 Wis. (2d) 593, 370 N.W. (2d) 265 (1985).

384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. (2d) 908 (1966).

See, State v. Bristor, 9 Kan. App. (2d) 404, 682 P. (2d) 122 (1984); City of Tacoma v. Heater, 67 Wash. (2d) 733, 409 P. (2d) 867 (1966); State v. Welch, 135 Vt. 316, 376 A. (2d) 351 (1977) [however, a subsequent Vermont case appears contrary, see, State v. Lombard, 146 Vt. 411, 505 A. (2d) 1182 (1985)].

271 S.C. 159,245 S.E. (2d) 904 (1978).

Currently codified as S.C. Code Ann. § 56-5-2950 (1987).