State v. Huntley

Decision Date27 November 2001
Docket NumberNo. 25428.,25428.
Citation562 S.E.2d 472,349 S.C. 1
CourtSouth Carolina Supreme Court
PartiesSTATE of South Carolina, Appellant, v. James Eugene HUNTLEY, Respondent.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, Senior Assistant Attorney General Norman Mark Rapoport, and Assistant Attorney General Melody J. Brown, of Columbia; Solicitor John R. Justice, of Chester, for appellant.

Francis L. Bell, of Bell, Tindall & Freeland, of Lancaster, for respondent.

ORDER WITHDRAWING ORIGINAL OPINION, SUSTITUTING SUBSEQUENT OPINION, AND DNYING PETITION FOR REHEARING

PER CURIAM:

Opinion No. 25428, filed March 11, 2002, is hereby withdrawn and the following opinion is substituted. After careful consideration, the Petition for Rehearing is denied /s/ Jean H. Toal, C.J. /s/ James E. Moore, J. /s/ John H. Waller, Jr., J. /s/ E.C. Burnett, III, J.

I would grant the petition to the extent it raises issues related to my dissent.

/s/Costa M. Pleicones, J.

BURNETT, Justice:

On May 27, 2000, Respondent James Eugene Huntley (Huntley) was arrested for driving under the influence. After the jury was sworn, Huntley moved to suppress the results of his breathalyzer test, arguing the test operator used a different simulator solution test level than that set forth by law. The trial judge agreed and suppressed Huntley's breathalyzer results. The State appeals.1

ISSUE
Did the trial judge err by suppressing Huntley's breathalyzer results?
ANALYSIS

In 1998, the General Assembly passed Act No. 434 (Act 434) which made various changes to provisions of the driving under the influence law. One change amended South Carolina Code Ann. § 56-5-2950(a) to specify that before a breath test is administered, "an eight one-hundredths of one percent simulator test must be performed and the result must reflect a reading between 0.076 percent and 0.084 percent." Previously, § 56-5-2950(a) did not require a simulator test.2 On June 29, 1998, the Governor approved Act 434. Subsequently, Act 434 was enrolled with the Office of the Secretary of State.

Months later, at the behest of the then Clerk of the Senate, the Code Commissioner amended Act 434. In relevant part, the amended version provides: "before the breath test is administered, a ten one-hundredths of one percent simulator test must be performed and the result must reflect a reading between 0.095 percent and 0.105 percent." S.C.Code Ann. § 56-5-2950(a) (Supp.1999).3

The parties disagree which version of Act 434 is applicable for purposes of Huntley's prosecution. The State argues the amended version of Act 434 applies; Huntley contends the original version of Act 434 applies.4 We agree with Huntley.

One duty of the Code Commissioner is to "[c]ompile the public statutes of the State." S.C.Code Ann. § 2-13-60(1) (1986). Part of this duty includes preparing indices to the statutes, noting court decisions under appropriate statutory sections, and adding references to new acts and joint resolutions. S.C.Code Ann. § 2-13-60(2), (3), and (6). The Code Commissioner is only authorized to "[c]orrect typographical and clerical errors." S.C.Code Ann. § 2-13-60(10). He is not authorized to make any other changes by way of addition or deletion to the existing laws.

In amending Act 434, the Code Commissioner changed the simulator solution test level and its corresponding range of accuracy. In addition, the Code Commissioner increased the alcohol inference level throughout § 56-5-2950(b), increased the alcoholic concentration level at which a person must enroll in a safety program (§ 56-5-2951(B)), and increased the level of alcohol concentration at which an insurance penalty may be imposed (§ 56-1-288(U)). The Code Commissioner acted outside his statutory authority in making these substantive changes. Accordingly, we conclude the original version of Act 434 is the law applicable to Huntley's prosecution.

Even though the trial judge properly concluded the original version of Act 434 applied, we nonetheless conclude the trial judge erred by suppressing Huntley's breathalyzer results.

The purpose of a simulator test is to ensure the breathalyzer machine produces an accurate, reliable breath-alcohol reading, and ultimately, an accurate blood-alcohol analysis.

The alcoholic breath simulator is a part of the breathalyzer devised for the purpose of providing a standard alcohol-air mixture. By mixing an amount of absolute alcohol with distilled water, a desired concentration of breath alcohol may be achieved. The breathalyzer operator, by pumping room air through the simulator solution, is able to determine whether the breathalyzer machine is functioning properly. For instance, if the simulator solution contains .10 of one percent alcohol, room air pumped through the simulator will result in a corresponding reading on the breathalyzer machine.

State v. Parker, 271 S.C. 159, 162, 245 S.E.2d 904, 905 (1978) (emphasis added); see 2 Richard E. Erwin Defense of Drunk Driving Cases § 18.04 (2001) (simulator test provides a known quantity of alcohol to the testing device to determine the capability of the device to properly analyze a sample at the time of the subject test); see also State v. Squires, 311 S.C. 11, 426 S.E.2d 738 (1992) (public purpose behind implied consent law is to facilitate compilation of reliable evidence in drunk driving prosecutions).

The alcohol level in the simulator test is used to determine the reliability of the breathalyzer machine's test results; it neither calibrates the breathalyzer machine nor affects the capability of the machine to properly measure the subject's blood-alcohol level. See State v. Parker, supra. Accordingly, as far as reliability is concerned, it is irrelevant whether the simulator test is run using an alcohol level of .10 or .08 percent. What is relevant is that the machine accurately measures the percentage of alcohol in the simulator test solution so that it will, likewise, accurately measure the percentage of alcohol in the subject's breath.

Even if the breathalyzer operator did not use the simulator test solution at the alcohol concentration required by Act 434, Huntley was not...

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15 cases
  • State v. Sawyer
    • United States
    • South Carolina Supreme Court
    • 5 Noviembre 2013
    ...(1976) (emphasis added) (citing State v. Sachs, 264 S.C. 541, 566 n. 11, 216 S.E.2d 501, 514 n. 11 (1975) ). In State v. Huntley, 349 S.C. 1, 5, 562 S.E.2d 472, 474 (2002), the circuit court suppressed a defendant's breathalyzer results where the simulator test solution did not contain the ......
  • State v. Sawyer
    • United States
    • South Carolina Supreme Court
    • 4 Junio 2014
    ...555 (1976) (emphasis added) (citing State v. Sachs, 264 S.C. 541, 566 n.11, 216 S.E.2d 501, 514 n.11 (1975)). In State v. Huntley, 349 S.C. 1, 5, 562 S.E.2d 472, 474 (2002), the circuit court suppressed a defendant's breathalyzer results where the simulator test solution did not contain the......
  • City of Rock Hill v. Thompson
    • United States
    • South Carolina Supreme Court
    • 11 Marzo 2002
    ...to the exercise of his own judgment upon the propriety of the act to be done). Until we issued our recent opinion in State v. Huntley, 349 S.C. 1, 562 S.E.2d 472 (2002), it was debatable which of the two versions of the Act was the correct law of the State. Accordingly, this is not a situat......
  • S.C. Dep't of Motor Vehicles v. Brown
    • United States
    • South Carolina Supreme Court
    • 6 Febrero 2014
    ...by Officer Wilson as there was no way to determine the accuracy and reliability of the blood-alcohol analysis. See State v. Huntley, 349 S.C. 1, 5, 562 S.E.2d 472, 474 (2002) (“The purpose of a simulator test is to ensure the breathalyzer machine produces an accurate, reliable breath-alcoho......
  • Request a trial to view additional results
1 books & journal articles
  • D. Traffic Offenses
    • United States
    • The Criminal Law of South Carolina (SCBar) Chapter V Other Offenses
    • Invalid date
    ...in the preparation of the machine or during its operation may or may not affect the admissibility of the results. In State v. Huntley, 349 S.C. 1, 562 S.E.2d 472 (2002), a defendant sought suppression because the operator used a 0.10 simulator solution rather than the 0.08 solution called f......

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