State v. Kerr, 2799.

• Decision Date: 23 February 1998
• Docket Number: No. 2799.,2799.
• Citation: 498 S.E.2d 212,330 S.C. 132
• Parties: The STATE, Respondent, v. John KERR, Appellant.
• Court: South Carolina Court of Appeals

330 S.C. 132

498 S.E.2d 212

The STATE, Respondent, v. John KERR, Appellant.

No. 2799.

Court of Appeals of South Carolina.

Submitted December 2, 1997.

Decided February 23, 1998.

Reese I. Joye, Jr., and John L. Drennan, both of the Joye Law Firm, North Charleston; and Stephen P. Groves, and Stephen L. Brown, both of Young, Clement, Rivers & Tisdale, Charleston, for appellant.

Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Norman Mark Rapoport, Columbia; and Solicitor David P. Schwacke, Charleston, for respondent.

Associate General Counsel W. Baxter Harwell and General Counsel Frank L. Valenta, S.C. Dept. of Public Safety, Columbia, Amicus Curiae. HUFF, Judge:

Appellant, John Kerr, was charged with and convicted of driving under the influence, second offense. The trial judge sentenced him to one year imprisonment and a $5,000 fine, suspended upon service of six months and payment of a $2,000 fine and one year of probation. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

On the evening of February 4, 1994, appellant was involved in an automobile accident with Mr. Douglas Sperry on 1-26 in Charleston county. Sperry testified he was traveling on 1-26 with no one beside him or in front of him. He observed the lights of other cars about a half mile behind him. He then noticed a set of headlights quickly coming up on him. This car then pulled to the left of Sperry, came up about half the length of Sperry's truck, and then veered to the right into the side of Sperry's vehicle. The car's front passenger side hit Sperry's left rear tire on the driver's side. Sperry's truck flipped over several times and landed in the median, facing the opposite direction. Sperry estimated the car that hit him had been traveling at a speed of around 70 or 75 miles per hour.

Three witnesses came forward who observed the accident. James Colburn testified he observed appellant's vehicle pass a tractor trailer, then cut over in front of that tractor trailer, causing the driver to hit his brakes. Appellant then cut in front of Colburn and entered the far left lane, traveling at a high rate of speed. Appellant then moved to the right and hit Sperry's truck. Colburn described appellant's driving as "out of control" and estimated appellant's speed at 70 miles per hour or better. After the accident, he noticed the appellant was staggering around.

Ginger Morrison was traveling on 1-26 with her stepmother, Darlene Wooten, when she observed appellant weaving in and out of traffic, passing other vehicles. She, like Colburn, observed a semi-truck that had to maneuver to avoid a collision with appellant. She then observed appellant's car catch the back area of Sperry's truck, causing the truck to flip over at least twice. After the accident, she observed appellant from a distance. She stated he appeared unsteady on his feet. She described appellant's driving as reckless and erratic. Wooten testified she also observed appellant almost hit the tractor trailer. She stated he was "all over the road." She also noticed, after the accident, appellant was "wobbling back and forth."

A local police officer came on the scene first and had appellant sit in the police vehicle. State Trooper Jonathan Hyman responded to a call for the accident and, after making sure the roadway was clear, requested the officer bring appellant over to him. Hyman questioned appellant as to whether he was injured and, at that time, noticed appellant had a strong odor of alcohol about him. Hyman asked appellant if he had been drinking, and appellant responded that he'd had several drinks. Hyman then offered appellant field sobriety tests, which appellant was unable to successfully complete. According to Hyman, appellant was uncooperative and he acted as if everything were a joke. When Hyman asked appellant to state his ABC's, appellant began singing them instead, and he was unable to recite all the letters. Hyman further requested appellant perform a one-legged stand test, but appellant did not do it. Hyman determined that appellant was driving under the influence and placed him under arrest. Hyman then read appellant his Miranda rights and transported him to the county jail. Appellant offered no other statements.

Trooper Michael Barnhill was called to the station to administer a data master test. He offered appellant the test and read appellant his rights pursuant to the implied consent warning. He told appellant he had the right to refuse the test, but if he refused, his privilege to drive in the state would be suspended for ninety days. Appellant told Barnhill he understood his rights. During an observation period, Barnhill noticed that appellant smelled of alcohol and his speech was slurred at times. When it was time for appellant to take the test, he refused to blow into the instrument without a public defender present. Barnhill responded that he did not know how to contact a public defender at that time of night, and asked appellant if he had a private attorney, to which appellant responded in the negative. Appellant's test recorded as a refusal. At trial, appellant testified in his own defense. He stated that he left his place of employment sometime after 10:00 p.m. that evening and stopped at a fast food restaurant for dinner. From there, he went to a bar where he saw a coworker. He stated he only had two beers that night, leaving the bar around 11:30 p.m. On his way home, he pulled onto the interstate behind a tractor trailer. He moved directly from the entrance ramp over to the left lane and remained there. He stated his speed was only 60 miles per hour. According to appellant, Sperry merged his truck onto the interstate across the lanes. Appellant then touched his brakes a couple of times, but Sperry continued to move over and Sperry's wheel then hit the side of his car and flipped over him.

After appellant stopped his car, he remained in the vehicle until an officer directed him to sit in his cruiser. When the officer asked him whether he had been drinking, he told him he had a couple of drinks. At the officer's request, appellant recited his ABC's. The officer then asked appellant to say them again. The officer also requested appellant perform a one-legged stand. Appellant realized the officer thought he was intoxicated, and then asked for a lawyer. When Officer Barnhill spoke to him about the data master test, appellant stated he wanted a lawyer and refused to do anything until one was present. On cross-examination, appellant denied driving at 70 miles per hour, denied almost colliding with the tractor-trailer, denied weaving in and out of traffic, denied turning into Sperry's truck, and denied telling Officer Hyman that he had several drinks. Appellant admitted that he also told Hyman he had not had anything to drink because he was afraid the officer was trying to arrest him.

Following closing arguments, the judge charged the jury on the law. He refused to charge the jury a requested instruction by the defense that the fact that appellant refused the breathalyzer test could not be held against him. His charge on driving under the influence included the following:

Now ladies and gentlemen, in order to determine whether the defendant was driving under the influence I would charge you that, to constitute a violation of this statute, it is not necessary to show that the defendant was in a helpless condition or that he was dead drunk or even so drunk that he could not walk without staggering.

On the other hand, proof that the defendant had at some time, previous to this incident, had partaken of an intoxicating beverage is not sufficient in itself to establish a violation. It must be shown that he was sufficiently under the influence to impair his ability to operate the vehicle in the same manner that a person of his ability as a driver, who had not drunk any intoxicating beverage, could have operated it under the same circumstances.

One is under the influence within the meaning of the statute only when he has drunk a sufficient quantity of an intoxicating beverage to appreciably impair the normal control of his bodily or mental faculties or both of them.

One may be under the influence, as contemplated by the statute, without being drunk, passed out or even intoxicated.

One violates the statute if he partakes of alcohol to the extent that he cannot drive a motor vehicle with reasonable care. Or if he partakes of alcohol to the extent he cannot drive as a prudent driver would operate a vehicle.

So the question is not, was the defendant drunk or intoxicated. The question is, was his condition such that he could drive with due regard for others, including himself? If not, then he has violated the statute.

Appellant objected to the driving under the influence charge. He also objected to the judge's refusal to charge that appellant had a right to refuse to take the breathalyzer which could not be held against him. The judge noted his exceptions but did not recharge the jury. The jury subsequently found appellant guilty.

ISSUES

1. Did the trial judge err in refusing to accept an alleged plea agreement between the State and appellant?

2. Did the trial judge err in charging the jury as he did on the standard of proof for driving under the influence?

3. Did the trial judge err in admitting incriminating statements into evidence where appellant was in custody and had not received Miranda¹ warnings?

4. Did the trial judge err in failing to address whether appellant's statements were involuntary and therefore should be suppressed?

5. Did appellant's criminal prosecution after suspension of his driver's license constitute a violation of the Double Jeopardy Clause?

6. Did the trial judge err in admitting photographs not produced prior to trial pursuant to a Rule 5, SCRCrimP motion?

7. Did the trial judge err in refusing to instruct the jury that appellan

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