State v. Bass

• Decision Date: 26 October 2004
• Docket Number: 2004-UP-541
• Parties: The State, Appellant, v. Jonathan Bass, Respondent.
• Court: South Carolina Court of Appeals

The State, Appellant, v. Jonathan Bass, Respondent.

No. 2004-UP-541

Court of Appeals of South Carolina

October 26, 2004

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(D)(2), SCACR.

Heard October 12, 2004

Appeal From York County John C. Hayes, III, Circuit Court Judge

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Deborah R. J Shupe, all of Columbia; and Solicitor Thomas E. Pope, of York, for Appellant.

Christopher A. Wellborn, of Rock Hill, for Respondent.

PER CURIAM

Jonathan Bass was arrested for driving under the influence. At a pre-trial hearing, the trial judge suppressed the results of a breath analysis test administered to Bass following his arrest. The State appeals this evidentiary exclusion, arguing the trial judge erred in finding the test's suppression was statutorily mandated. We reverse and remand.

FACTS

The facts of this case are undisputed. In August 2001, Jonathan Bass was arrested for driving under the influence. Once at the police station, the arresting officer advised Bass of his implied consent rights and offered him a breath test to gauge his breath alcohol concentration. During the statutorily mandated videotaped pre-test waiting period, Bass requested to speak to his attorney. Since there was no telephone in the breath analysis room, the arresting officer escorted Bass out of the room and off camera to make the phone call. Bass and the officer returned to the testing room approximately eleven minutes later. The officer testified he remained in close proximity to Bass the entire time they were off camera and at no time did Bass place a foreign substance or object into his mouth. At the conclusion of the twenty-minute period (including the time both were absent from the room and off camera), the breath analysis test was conducted on video by the arresting officer. Bass registered a.23 breath alcohol concentration.

At a pre-trial hearing, Bass moved to suppress the results of the breath analysis test. Finding that the arresting officer did not follow the statutory requirements applicable to administering the test, specifically that the test subject's conduct during the twenty-minute waiting period be videotaped, the trial judge found the test results inadmissible. This appeal followed.

STANDARD OF REVIEW

The trial judge has considerable discretion in ruling on the admissibility of evidence. State v. Sheldon, 344 S.C. 340, 342, 543 S.E.2d 585, 585-86 (Ct. App. 2001). On appeal, the trial court's ruling will not be disturbed absent a prejudicial abuse of discretion amounting to an error of law. Id.; see also State v Smicklevich, 268 S.C. 411, 415, 234 S.E.2d 230, 232 (1977).

LAW / ANALYSIS

The State contends South Carolina's implied consent statute does not mandate automatic exclusion of a breath test's results when the pre-test waiting period is not videotaped in its entirety. We agree.

By operating a motor vehicle in this state, one automatically consents to searches of his breath, blood, and urine for the presence of alcohol or drugs if arrested for an offense arising from the alleged influence of such while driving. S.C. Code Ann. § 56-5-2950(a) (Supp. 2003). This implied consent” to be searched is circumscribed by several restrictions and safeguards incorporated into the framework of the implied consent statute. For instance, one may still refuse to take the tests at the sufferance of a penalty (suspension of his driving privileges for at least ninety days), and must be advised of this right of refusal before any test is given. S.C. Code Ann. § 56-5-2950(a)(1) (Supp. 2003). One may also request an additional independent test performed by a person of his own choosing and has a right to affirmative assistance” from the police in obtaining such a test. S.C. Code Ann. § 56-5-2950(a) (Supp. 2003). The authorities must also offer a person suspected of driving under the influence the least intrusive of the three tests, a breath analysis test, before further tests are ordered (unless a breath test is medically unfeasible or there is reasonable grounds to suspect drug use other than alcohol). Id.

In addition to these statutory rights, the implied consent statute requires that a twenty-minute pre-test waiting period be videotaped pursuant to Section 56-5-2953(A)(2)(d)” when the arresting officer is administering a breath test. S.C. Code Ann. § 56-5-2950(a) (Supp. 2003). Section 56-5-2953(A)(2) reads:

[t]he videotaping at the breath site:... (d) must... include the person's conduct during the required twenty-minute pre-test waiting period, unless the officer submits a sworn affidavit certifying that it was physically impossible to videotape this waiting period. However, if the arresting officer

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