State v. Knighton
| Citation | 334 S.C. 125,512 S.E.2d 117 |
| Decision Date | 04 January 1999 |
| Docket Number | No. 2923.,2923. |
| Parties | STATE of South Carolina, Respondent, v. Benny E. KNIGHTON, Appellant. |
| Court | Court of Appeals of South Carolina |
Mark C. Brandenburg, of Joseph S. Brockington, PA, of Charleston, for appellant.
Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott and Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia; and Solicitor Walter M. Bailey, Jr., of Summerville, for respondent.
Appellant, Benny E. Knighton, was convicted of driving under the influence, second offense. He appeals. We affirm.
In the early morning hours of April 7, 1996, while returning to his home in Charleston after a trip to Greenwood, appellant was stopped on 1-26 by Trooper Nicholas King. A private citizen traveling on 1-26 witnessed Knighton backing up in the emergency lane on the interstate near Columbia, after Knighton missed the Charleston exit. After observing Knighton speeding, weaving, and nearly hitting a concrete median, the citizen called the highway patrol to report an erratic driver. Trooper King responded to the call and stopped Knighton after he observed him weaving between lanes and his tire crossing over the shoulder of the road. As the trooper approached Knighton's car, he immediately smelled the odor of beer. The trooper asked him if he had anything to drink and Knighton responded he had drunk four beers and a small bottle of whiskey.1 After failing several field sobriety tests, the trooper placed Knighton under arrest for driving under the influence. Trooper King transported Knighton to the Orangeburg County Law Complex where Knighton was offered a breathalyzer test. Before the test was performed, Knighton asked to speak with his attorney, and was assisted in reaching his attorney on the phone. Thereafter, Trooper Billy Jackson administered the breathalyzer test, which indicated Knighton had a blood alcohol content of .13 percent.
After the breathalyzer test was completed, Knighton stated he wanted a blood test. Officer Jackson placed a phone call to the Orangeburg County Hospital. Upon speaking with the appropriate people at the hospital, Officer Jackson was informed the hospital required a family doctor to order the blood test and that the test would cost $52.00. Mr. Knighton then spoke with the hospital personnel, who informed him of the requirement of a family doctor order and the $52.00 cost. Knighton told the officers the cost of the test. Trooper King, having patted Knighton down at the arrest, knew Knighton had some loose bills in his pocket and told him to check his front pocket for money. Knighton pulled out the money and counted $6.52.2 Knighton also informed the officers he did not have a family doctor.
Prior to trial, Knighton made a motion to suppress the breathalyzer test results, arguing he was denied affirmative assistance in obtaining a blood test. The court held an in camera hearing on the matter. Knighton testified that, because he didn't have the money or a family doctor to order the test, the troopers told him they were not going to take him to get a blood test. He claimed he "kept requesting" a blood test and he informed the troopers he knew a doctor he could call and that he could get the money from his boss, who lived in Orangeburg, but the troopers refused to let him make the calls. Trooper King, on the other hand, testified that Knighton was not denied access to the phone, that he was allowed to call his attorney and the hospital, and that he could have made any phone calls that he wanted to make. Both Troopers King and Jackson testified, after Knighton found out he needed $52.00 and a family doctor's order for the test, he simply dropped the subject. They further testified they would have taken him to the hospital for the test if he still wanted to go.3
The trial judge found Knighton was not denied the right to have an independent blood test taken. He found the law enforcement officers were available and did offer to aid Knighton in his attempt to obtain an independent test, and the fact that Knighton lacked sufficient funds or a doctor's authorization were "not matters that the officers would have been required to fulfill." Accordingly, he denied the motion to suppress.
Knighton raises the following issues on appeal:
Knighton first asserts the trial court erred in failing to suppress the breathalyzer test because the officers failed to provide him with the "reasonable assistance" in obtaining an independent test that he was entitled to under the law. He argues, as a person who submitted to the breathalyzer test, he was entitled to "affirmative assistance" pursuant to State v. Harris, 311 S.C. 162, 427 S.E.2d 909 (Ct.App.1993). He further contends the troopers' conduct at best amounted to the lesser standard of "reasonable opportunity," which is required for a suspect who refuses the breathalyzer test. We disagree.
The issue of whether affirmative assistance was required of law enforcement personnel in obtaining independent testing for DUI suspects first arose in State v. Lewis, 266 S.C. 45, 221 S.E.2d 524 (1976). Lewis argued to the Supreme Court that his case should be dismissed because law enforcement refused to affirmatively assist him in obtaining an independent blood test after he refused to submit to a breathalyzer test. The relevant statute in effect at the time provided that the arresting officer or the person conducting the chemical test was required to "promptly assist [t]hat person to contact a qualified person to conduct additional tests." Lewis, 266 S.C. at 48 n. 1, 221 S.E.2d at 526 n. 1. In reading the statute in its entirety, the court found the phrase "that person" referred to a person who had taken the breathalyzer test. The court stated, "The clear language of the statute requires assistance to be given only to a person who has taken the breathalyzer test." Id. at 48, 221 S.E.2d at 526. Nonetheless, the court found the statute did not deprive a person arrested for DUI who refused the breathalyzer test of a "reasonable opportunity" to obtain an independent test, although the statute "[did] not expressly give a person this right." Id. at 48, 221 S.E.2d at 526.
S.C.Code Ann. § 56-5-2950(a) (Supp.1997) provides in pertinent part as follows:
A 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 an 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. A 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....
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The arresting officer shall provide reasonable assistance to the person to contact a qualified person to conduct additional tests.
Although the statute has been amended and the language has changed somewhat since the Lewis opinion was issued, this court has found Lewis still applies to require that a person who takes a breathalyzer test pursuant to § 56-5-2950 is entitled to affirmative assistance from the police in obtaining a blood test. State v. Harris, 311 S.C. 162, 427 S.E.2d 909 (Ct.App.1993). State v. Masters, 308 S.C. 433, 418 S.E.2d 552 (1992) (); See also State v. Degnan, 305 S.C. 369, 409 S.E.2d 346 (1991)
().
Clearly, because Knighton submitted to a breathalyzer test, he was entitled to affirmative assistance from the officers in obtaining an independent blood test. Whether one receives affirmative assistance which is reasonable under the statute depends on the circumstances of each case.
While several cases subsequent to Lewis discuss whether one who did not take a breathalyzer test received a reasonable opportunity to obtain an independent test,4 research reveals few cases addressing the issue of whether a subject who provided a breath sample was provided reasonable assistance in obtaining an independent blood sample. In each of four cases found with such scenarios, the defendants did, in fact, have blood drawn. The question in these cases turned on whether law enforcement provided the defendants with...
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State v. Young
...508 S.E.2d at 878 (footnote and citations omitted). The doctrine of opening the door was used by this Court in State v. Knighton, 334 S.C. 125, 512 S.E.2d 117 (Ct.App.1999). Knighton was arrested and convicted for driving under the influence. Knighton testified on direct examination that Ch......
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...affirmative assistance [that] is reasonable under the statute depends on the circumstances of each case." State v. Knighton , 334 S.C. 125, 131, 512 S.E.2d 117, 120 (Ct. App. 1999).The trial court did not err by admitting into evidence the analysis of Brown's blood sample. Trooper Minnix an......
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State v. Brown
...the person to the nearest medical facility which performs blood tests to determine a person's alcohol concentration."); Knighton, 334 S.C. at 131, 512 S.E.2d at 120 ("Whether one receives affirmative assistance [that] reasonable under the statute depends on the circumstances of each case.")......
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...record). We therefore decline to address the merits of Appellant's claim. See Rule 210(h), SCACR; see also State v. Knighton, 334 S.C. 125, 136, 512 S.E.2d 117, 123 (Ct.App.1999) (refusing to review a jury charge not in the record); Hobgood v. Pennington, 300 S.C. 309, 314, 387 S.E.2d 690, ......