State v. Frey

• Decision Date: 25 October 2004
• Docket Number: No. 3878.,3878.
• Citation: 608 S.E.2d 874,362 S.C. 511
• Parties: The STATE, Respondent, v. Timothy Scott FREY, Appellant.
• Court: South Carolina Court of Appeals

362 S.C. 511

608 S.E.2d 874

The STATE, Respondent, v. Timothy Scott FREY, Appellant.

No. 3878.

Court of Appeals of South Carolina.

Submitted September 15, 2004.

Decided October 25, 2004.

Withdrawn, Substituted and Refiled January 25, 2005.

Ricky Keith Harris, of Spartanburg, for Appellant.

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 Harold W. Gowdy, III, of Spartanburg, for Respondent.

ORDER

PER CURIAM:

The State has petitioned for a rehearing and argues our prior opinion was incorrect in several particulars. While we deny the petition for rehearing, we briefly address the State's contentions.

The State argues initially that the record establishes its compliance with the statutory mandate requiring that "[b]lood and urine samples must be obtained by physicians licensed by the State Board of Medical Examiners, registered nurses licensed by the State Board of Nursing, and other medical personnel trained to obtain the samples in a licensed medical facility." S.C.Code Ann. § 56-5-2950(a) (Supp.2003). We disagree, for we remain firmly convinced that this record fails to establish that Scott Darragh is either a licensed physician, registered nurse or is otherwise properly qualified under the statute.

The State further argues that it would have been unduly burdensome to "utilize the out-of-state subpoena process, and expend Spartanburg County's limited financial resources, to secure the testimony of" Darragh. Assuming Darragh has moved to another state as alleged, the suggestion that Darragh's qualifications could be established only by his presence and testimony at trial is specious.

We also view as meritless the State's newly asserted efforts to recast the issue as one of "chain of custody."

The State finally contends that a remand to the trial court is the appropriate remedy. While we agree that a remand is appropriate under the circumstances, we do not adopt the State's expansive proposal for the taking of new evidence. We have reviewed the cases cited by the State for the proposition that it is entitled to a second bite of the apple to establish Darragh's qualifications: State v. Primus, 312 S.C. 256, 440 S.E.2d 128 (1994) (case remanded to lower court to conduct an initial Jackson v. Denno hearing to determine whether the defendant was "in custody" for Miranda purposes when he made statements to a police officer); State v. Williams, 258 S.C. 482, 189 S.E.2d 299 (1972) (case remanded to trial court to consider defendant's motion to strike the in-court identification testimony where the trial court "overruled the motion without going fully into whether or not there had, in fact, been improper prior confrontations, and whether, in fact, either or both of the in-court identifications were perchance the tainted product of any such unlawful confrontation"); State v. Sampson, 317 S.C. 423, 454 S.E.2d 721 (Ct.App.1995) (court declined on appeal to rule on motion to suppress, instead remanding to the trial court to conduct an initial hearing on the sufficiency of a search warrant affidavit). These cases represent remands to trial courts to address issues that were not fully addressed and developed during the original trial. Remand in such circumstances is far removed from the request here — allowing the State a second evidentiary hearing. We conclude the remand should be limited to the existing record for the trial court to determine whether the State's failure to establish the qualifications of Darragh per section 56-5-2950(a) "materially affected the accuracy or reliability of the tests results or the fairness of the testing procedure." S.C.Code Ann. § 56-5-2950(e) (Supp.2003).

The original opinion, therefore, is withdrawn and the attached opinion is substituted therefor.

KITTREDGE, J.:

Timothy Scott Frey appeals his conviction for driving under the influence. Frey seeks a new trial, contending the circuit court improperly admitted evidence of the results of a blood-alcohol test. We reverse in part and remand.

FACTS AND PROCEDURAL HISTORY

On December 21, 2001, Frey, while driving a pick-up truck in Spartanburg County, collided with two Spartanburg County Sheriff's Office vehicles. Frey was injured in the accident and transported to the Spartanburg Regional Medical Center. The police officer investigating the accident, Trooper L.D. Smith of the South Carolina Highway Patrol, met Frey at the hospital emergency room. After Trooper Smith advised Frey of his rights under the Implied Consent Laws, Frey consented to a blood sample being taken for blood-alcohol level analysis.

Trooper Smith prepared a standard-form SLED Blood Collection Report in connection with obtaining the blood sample from Frey. According to the report, the blood was drawn from Frey by an individual named "Scott Darragh." Darragh signed the form in the space labeled "licensed or trained collector," and the form was admitted in evidence over Frey's hearsay objection. The report, however, does not indicate what position Darragh held at the hospital nor did the State offer any evidence to show what, if any, medical training or licensure Darragh had that would qualify him to obtain the blood sample.

At trial, Frey sought to suppress the admission of the blood-alcohol test results on the grounds the State did not present any evidence that the blood sample was drawn by a qualified individual as required under the implied consent statute. The circuit court denied Frey's request and admitted the test results. Frey was convicted and sentenced. This appeal followed.

STANDARD OF REVIEW

A trial judge's decision to admit or exclude evidence is within his discretion and will not be disturbed on appeal absent an abuse of discretion. Elledge v. Richland/Lexington Sch. Dist. Five, 352 S.C. 179, 185, 573 S.E.2d 789, 792 (2002).

LAW/ANALYSIS

Frey argues the circuit court erred in the admission of the blood-alcohol analysis test results.

Under the Implied Consent Statute, an arresting officer may direct that a blood sample be collected from a person arrested for DUI if that person is unable to submit to a breathalyzer test for medical reasons. S.C.Code Ann. § 56-5-2950 (Supp.2003). The statute requires, however, that blood samples be collected by qualified medical personnel: "Blood and urine samples must be obtained by physicians licensed by the State Board of Medical Examiners, registered nurses licensed by the State Board of Nursing, and other medical personnel trained to obtain the samples in a licensed medical facility." S.C.Code Ann. § 56-5-2950(a). The circuit court found there was enough "circumstantial evidence" to establish statutory compliance based upon the fact that, following the trooper's request, Darragh appeared in the emergency room wearing "hospital like scrubs."

We disagree with the reasoning of the circuit court. With any question regarding statutory construction and application, the court must always look first to the legislative intent as determined from the plain language of the statute. State v. Scott, 351 S.C. 584, 588, 571 S.E.2d 700, 702 (2002); State v. Morgan, 352 S.C. 359, 365-66, 574 S.E.2d 203, 206 (Ct.App.2002). The plain language of section 56-5-2950 requires that, when an officer directs a blood sample be collected from a person arrested for DUI, the sample "must" be obtained by trained, qualified medical personnel. Our courts have consistently held that use of words such as "shall" or "must" indicates the Legislature's intent to enact a mandatory requirement. See, e.g., South Carolina Police Officers Ret. Sys. v. City of Spartanburg, 301 S.C. 188, 191, 391 S.E.2d 239, 241 (1990)

(noting that statutory prescriptions couched in language such as "shall" and "must" are mandatory in application and effect); Starnes v. South Carolina Dep't of Pub. Safety, 342 S.C. 216, 221, 535 S.E.2d 665, 667 (Ct.App.2000) (same). The plain language of section 56-5-2950 demands that the State offer some evidence to establish compliance with this statutory requirement.

The plain language of section 56-5-2950 further requires that we reject the State's suggestion that the mere appearance of Scott Darragh in the emergency room is sufficient, for the statute mandates that the blood sample "must" be obtained by a trained medical professional. One's mere appearance in a hospital wearing generic hospital attire is not evidence of one's medical training. We likewise reject the State's assertion that Darragh's signature on the SLED form in the space labeled "licensed or trained collector" is sufficient to establish compliance with the statute. Simply signing a preprinted form does not provide any indicia that the signatory's qualifications meet the specific licensing or training requirements of section 56-5-2950.¹ To hold otherwise would render the minimal foundational requirement of section 56-5-2950 without any meaningful force or effect. In light of the State's failure to satisfy this basic requirement, we are constrained to find the circuit court erred in finding the foundational requirements of section 56-5-2950 had been satisfied.² The State alternatively asserts that, assuming Darragh was not qualified under the statute to collect the blood sample, suppression would not be warranted. Specifically, the State contends Frey was not prejudiced by the failure to comply with the statute. The State bases its argument on the principle that where a statute is silent about the admissibility of evidence, the "exclusion of evidence should be limited to violations of constitutional rights and not to statutory violations, at least where the appellant cannot demonstrate prejudice at trial resulting from the failure to follow statutory procedures." State v....