State v. Harris, 1959

• Decision Date: 20 January 1993
• Docket Number: No. 1959,1959
• Parties: The STATE, Respondent, v. Ernest Edward HARRIS, Jr., Appellant. . Heard
• Court: South Carolina Court of Appeals

Page 909

427 S.E.2d 909

311 S.C. 162

The STATE, Respondent, v. Ernest Edward HARRIS, Jr., Appellant.

No. 1959.

Court of Appeals of South Carolina.

Heard Jan. 20, 1993.

Decided March 1, 1993.

Asst. Appellate Defender Robert M. Dudek, of the South Carolina Office of Appellate Defense, Columbia, for appellant.

Atty. Gen. T. Travis Medlock, Chief Deputy Atty. Gen. Donald J. Zelenka, Asst. Attys. Gen. Harold M. Coombs, Jr., and Alexandria Broughton Skinner, Columbia; and Sol. Holman C. Gossett, Spartanburg, for respondent.

CURETON, Judge:

Appellant, Ernest Edward Harris, was tried and convicted of driving under the influence. He appeals his conviction. We affirm.

The issues raised in this appeal are whether the trial judge (1) ruled Harris was precluded from cross-examining the breathalyzer operator regarding whether Harris had reasonable opportunity to obtain a blood test, and (2) denied Harris due process of law by instructing the jury that taking the breathalyzer test was a prerequisite to obtaining an independent blood test.

On a Saturday night, May 19, 1990, three narcotics officers sat in an unmarked vehicle outside a residence. They observed Harris stagger across the yard, throw down a beer can, climb into a truck, and drive off. The officers followed Harris in their vehicle and when he stopped his vehicle to repair his tire or to urinate, arrested him. The officers testified that they arrested Harris because he drove erratically, smelled of alcohol, was unsteady on his feet, and slurred his speech. He was taken to jail.

At the jail, Officer Brooks offered Harris a breathalyzer test. Brooks testified that he read Harris the entire "breathalyzer check list." He specifically testified that he read the following statement to Harris: "If you take this breathalyzer test, 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." Harris refused to take the breathalyzer. Brooks testified that Harris did not request a blood test and that he specifically did not tell Harris he had to take a breathalyzer test as a prerequisite to taking an independent test.

Harris testified that he asked Brooks for assistance in obtaining a blood test but that Brooks said "you're not getting no [sic] blood test." Harris testified that he told Brooks that he would pay for a blood test to prove he was not intoxicated. Harris also testified that Brooks did not specifically say to him that the taking of the breathalyzer test was a prerequisite to taking an independent blood test.

The first issue on appeal concerns the cross-examination of Officer Brooks. Defense counsel queried Brooks: "Have you ever, when a person has refused to take a breathalyzer test, taken the person to the hospital or wherever they asked to go?" The solicitor objected on the grounds that this question was a point of law. In response to the solicitor's objection, defense counsel stated: "My client is insistant [sic] ... that he asked for proper assistance in a blood test that night" and was refused. The court responded: "Now, you take the position ... that he has [the] right to be assisted to obtain a [blood] test whether or not he takes the [breathalyzer] test ... this is the purpose of [your] inquiry?" Defense counsel responded: "Yes sir, it is ... If my client is to testify, he will say that he asked for a blood test and this officer refused him."

The solicitor took the position that "no one is allowed to request a blood test if they have refused the breathalyzer." After a recess, the court ruled that "only if you take the test under the statute then you would be entitled to request the assistance regarding the taking of another test ... [and] further inquiry along this line would be [ir]relevant."

Harris asserts on appeal the judge erred in not allowing him to cross-examine Brooks regarding what reasonable efforts could have been made by Brooks to assist Harris to obtain a blood test after he had refused the breathalyzer. The State asserts that although Harris was entitled to a reasonable opportunity to obtain a blood test on his own initiative, he was not entitled to affirmative assistance from the police in obtaining the test. Further, the State argues Harris' counsel's efforts to cross-examine Brooks were in regards to affirmative assistance Brooks may have rendered Harris, not Harris' reasonable opportunity to obtain an independent test. Thus the inquiry was irrelevant to the case.

The State also argues Harris has waived this issue on appeal because he did not raise it at trial and because he did not make an offer of proof as to Brooks' excluded testimony. Additionally, the State argues the error was harmless because there was no indication the testimony would have benefited Harris.

S.C.Code Ann. § 56-5-2950 (1976) as amended provides:

(a) Any person who operates a motor vehicle in this State is considered to have given consent to chemical tests of his breath, blood, or urine for the purpose of determining the presence of alcohol or drugs if arrested for any offense arising out of acts alleged to have been committed while the person was operating a motor vehicle while under the influence of alcohol, drugs, or a combination of them. Any test must be administered at the direction of a law enforcement officer who has apprehended a person for operating a motor vehicle in this State while under the influence of alcohol, drugs, or a combination of them. At the direction of the arresting officer the person first must be offered a breath test to determine the alcohol concentration of his blood....

* * * * * *

The person tested or giving samples for testing may have a qualified person of his own choosing conduct additional tests at his expense and must be notified of that right. A person's failure to request additional blood or urine tests shall not be admissible against the person in the criminal trial. The failure or inability of the person tested to obtain additional tests does not preclude the admission of evidence relating to the tests or samples taken at the direction of the law enforcement officer. (emphasis added)

The arresting officer shall provide reasonable assistance to the person to contact a qualified person to conduct additional tests. (emphasis added)

The purpose of S.C.Code Ann. § 56-5-2950 "is to permit an accused person to gather independent evidence to submit in reply to that of the prosecuting authority." Town of Fairfax v. Smith, 285 S.C. 458, 460, 330 S.E.2d 290, 290 (1985).

A DUI suspect is entitled to a reasonable opportunity to obtain a blood test although he refuses to take a breathalyzer test. A person who takes a breathalyzer test is entitled to affirmative assistance from the police in obtaining a blood test. State v. Lewis, 266 S.C. 45, 48, 221 S.E.2d 524, 526 (1976) (access to a telephone and telephone book are sufficient to show reasonable opportunity); State v. Sullivan, --- S.C. ----, 426 S.E.2d 766, 769 (1993) ("ample time and the means (telephone) by which to make arrangements for independent testing" constituted reasonable opportunity); State v. Degnan, 305 S.C. 369, 371, 409 S.E.2d 346, 348 (1991) (access to...