State v. Masters
| Decision Date | 09 March 1992 |
| Docket Number | No. 23680,23680 |
| Citation | 418 S.E.2d 552,308 S.C. 433 |
| Court | South Carolina Supreme Court |
| Parties | The STATE, Respondent, v. Larry Wayne MASTERS, Petitioner. . Heard |
Geddes D. Anderson, Greenwood, for petitioner.
T. Travis Medlock, Atty. Gen., Harold M. Coombs, Jr., Asst. Atty. Gen., and W. Townes Jones, IV, Sol., Eighth Judicial Circuit, for respondent.
Petitioner ("Masters") was convicted of driving under the influence ("DUI"). The Court of Appeals upheld that conviction in State v. Larry Wayne Masters, Op. No. 90-UP-133 (Ct.App. filed August 14, 1991) (unpublished). We granted certiorari to review the decision of the Court of Appeals. We reverse.
On April 11, 1990, Masters was arrested for DUI in the City of Greenwood. The arresting officer transported Masters to the Greenwood Law Enforcement Center for a breathalyzer test. Masters was videotaped, but when the operator attempted to calibrate the breathalyzer machine, the machine malfunctioned. The officer then transported Masters to the Town of Ninety Six for a second attempt at a breathalyzer test. That machine also malfunctioned. Masters was then transported back to the Greenwood Law Enforcement Center ("Center"). At the Center, Masters requested a blood test. The officer agreed to transport Masters to the hospital for the blood test. En route to the hospital, the officer received a call on the police radio and he was directed to return Masters to the Center. The record does not reveal the reason the officer was ordered to return Masters to the Center.
At trial, Masters moved to dismiss the charges because the officer failed to complete the trip to the hospital for Masters to obtain a blood test. Masters was convicted of DUI and the Court of Appeals affirmed.
On appeal, Masters claims that his motion to dismiss should have been granted by the trial court because the arresting officer failed to follow through on obtaining a blood test. Under these unique facts, we agree.
In State v. Lewis, 266 S.C. 45, 48, 221 S.E.2d 524, 526 (1976), this Court recognized the defendant's implied right under S.C.Code Ann. § 56-5-2950 (1976) (formerly § 46-344) of a reasonable opportunity to obtain a blood test. "What is reasonable will, of course, depend on the circumstances of each case." Lewis at 48, 221 S.E.2d 526.
We specifically held in Lewis that the officer does not have an affirmative duty to assist the defendant when the defendant refuses to take the breathalyzer. The officer's duty is only to provide the defendant with a "reasonable opportunity to obtain a blood test." See Id. This "reasonable opportunity" does not include the affirmative duty to procure a blood test for a defendant who has not first been given a breathalyzer. See Id.; see also, Debra T. Landis, Annotation, Driving While Intoxicated: Duty of Law Enforcement Officer to Offer Suspect Chemical Sobriety Test Under Implied Consent Law, 95 A.L.R. 3rd 710 (1979) (). However, under unique facts such as these, where the officer transports the defendant to two different locations in aborted efforts to administer the breathalyzer test and where the officer affirmatively undertakes to procure a blood test for the defendant, then the officer terminates that affirmative undertaking without any explanation or excuse, the officer has effectively denied the defendant the reasonable opportunity to obtain a blood test. Thus, the trial court should have dismissed the charges against the defendant.
We REVERSE.
I would affirm the decision of the Court of Appeals. The facts of this case do not call for a departure from well-settled law that a police officer is not required to affirmatively assist a defendant in obtaining a blood test when that defendant has not first been given a breathalyzer test.
The arresting officer testified that he followed Masters' vehicle and observed Masters swerve off the road twice and cross over the center line into the lane of oncoming traffic. After stopping Masters, the officer observed that Masters was unsteady on his feet and "glassy-eyed," smelled strongly of alcohol, and spoke in a very slurred and disjointed manner. When asked for his license and registration, Masters repeatedly asked the officer to "give him a break" and let him go home.
After his arrest for DUI third offense, Masters was taken to the Greenwood County Law Enforcement Center, where he was videotaped. The breathalyzer operator then began to administer a breathalyzer test following the procedure outlined on a "Breathalyzer Test Form." He first advised Masters of his rights, including the right not to take the breathalyzer. The police testified that Masters refused the test at that point.
Despite Masters' refusal, the breathalyzer operator continued, as required by police procedure, to follow the checklist on the Form. The officer calibrated the breathalyzer machine and found the machine inoperable, whereupon Masters stated he wanted to take the test "for funsies" to "just find out between us what it would be."
The malfunctioning machine was the only one available in Greenwood, so Masters was transported to the nearby town of Ninety-Six for a breathalyzer test. After being again advised of his rights, Masters again refused the test. The officer proceeded to calibrate the machine at Ninety-Six but it too was inoperable. Masters then said he would take the test.
No other machine was available in Ninety-Six and Masters was transported back to the Greenwood Law Enforcement Center. Upon arrival, approximately two hours after his arrest, Masters requested that the arresting officer take him to the hospital for a blood test. On the way to the hospital, the officer received a radio call, the contents of which are not disclosed in the record, and returned with Masters to the Law Enforcement Center. Masters made no further attempt to arrange a blood test and there is no evidence the officers did anything to prevent him from doing so. Consequently, there was no chemical test of the defendant's breath or blood.
South Carolina Code Ann. § 56-5-2950 (1991) provides in pertinent part, (emphasis supplied).
In State v. Lewis, 266 S.C. 45, 221 S.E.2d 524 (1976), this Court drew a distinction between those persons who have taken the breathalyzer test and therefore are entitled to the mandatory assistance of § 56-5-2950, and those who have not been tested and are...
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...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) (officer does not have affirmative duty to assist defendant when defendant refuses to take breathalyzer); See also State v......
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