State v. Newton, No. 21147

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtRHODES; LEWIS
Citation262 S.E.2d 906,274 S.C. 287
PartiesThe STATE, Respondent, v. Wesley NEWTON, Appellant.
Decision Date12 February 1980
Docket NumberNo. 21147

Page 906

262 S.E.2d 906
274 S.C. 287
The STATE, Respondent,
v.
Wesley NEWTON, Appellant.
No. 21147.
Supreme Court of South Carolina.
Feb. 12, 1980.

Page 908

[274 S.C. 289] Warren & Pitts, Allendale, for appellant.

Atty. Gen. Daniel R. McLeod, Asst. Atty. Gen. Brian P. Gibbes, and Staff Attys. Buford S. Mabry, Jr., and Harold M. Coombs, Jr., Columbia, and Sol. Randolph Murdaugh, III, Hampton, for respondent.

RHODES, Justice:

This is an appeal from a conviction of driving under the influence of alcohol, second offense. We affirm.

Following his arrest, appellant was taken to the Hampton County Jail, where he consented to the administration of a breathalyzer test. After testing the breathalyzer with a standard simulator ampoule and obtaining a reading equal to the percent of alcohol in the simulator solution (0.10 percent), the test was administered on appellant. The South Carolina [274 S.C. 290] Law Enforcement Division (SLED) certified operator obtained a reading of 0.18 percent. A 0.10 percent reading or greater on the breathalyzer raises a rebuttable presumption that the person tested is under the influence of alcohol. Subsequent to the completion of the breathalyzer test, both the simulator and test ampoules were nonmaliciously destroyed.

Under this court's ruling in State v. Parker, 271 S.C. 159, 245 S.E.2d 904 (1978), prior to the admission of results of a breathalyzer test into evidence, the State must prove (1) that the machine was in proper working order at the time of the test; (2) that the correct chemicals had been used; (3) that the accused was not allowed to put anything in his mouth for twenty minutes prior to the test; and (4) that the test was administered by a qualified person in a proper manner. The testimony of the breathalyzer operator that he had run a simulator test immediately before the actual test and that the breathalyzer machine gave a reading equal to the percent of alcohol in the simulator solution, is sufficient to establish, prima facie, that the machine was working properly and that the correct chemicals had been used. Id. If there is evidence challenging the prima facie showing made, the judge must rule upon the admissibility in light of the entire evidence. Id.

Appellant maintains that the intentional though nonmalicious destruction of the simulator and test ampoules deprived him of the opportunity to examine the evidence against him and amounted to the destruction of material evidence which could have potentially established his guilt or innocence. He contends that by reason of the above circumstances, he has been deprived of his right to due process, thereby rendering the results of the breathalyzer test inadmissible.

The United States Supreme Court in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), imposed a duty on the prosecution to disclose material evidence favorable to a defendant. This duty has been extended by cases such as People v. Hitch, 12 Cal.3d 641, 117 Cal.Rptr[274 S.C. 291] . 9, 527 P.2d 361 (1974) and Lauderale v. State, 548 P.2d 376 (Alaska 1976), both of which are relied upon by appellant, to require the preservation of ampoules used in breathalyzer tests. See also State v. Michener, 25 Or.App. 523, 550 P.2d 449 (1976). These cases hold that such evidence is material to the issue of guilt or innocence on the charge of driving under the influence and that due process of law would therefore require that the prosecution make available such evidence. Where such evidence cannot be produced, the results of breathalyzer tests have been suppressed.

Page 909

The majority of courts addressing this issue, however, have reached the opposite result. See, e. g., State v. Cantu, 116 Ariz. 356, 569 P.2d 298 (1977); People v. Hedrick, 557 P.2d 378 (Colo.1976); People v. Godbout, 42 Ill.App.3d 1001, 1 Ill.Dec. 583, 356 N.E.2d 865 (1976); People v. Stark, 73 Mich.App. 332, 251 N.W.2d 574 (1976); Edwards v. State, 544 P.2d 60 (Okla.Cr.App.1975).

The extension of the Brady doctrine by those cases relied upon by appellant to those instances where there is a "reasonable possibility" that the ampoules might constitute favorable evidence, is not constitutionally justified since Brady focused upon the harm to a defendant resulting from nondisclosure, while Hitch diverted this concern from the reality of prejudice to speculation about the contingent benefits to a defendant. Edwards v. Oklahoma, 429 F.Supp. 668 (D.C.1976). Mere absence of evidence of speculative value to a defendant without deliberate...

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23 practice notes
  • Roller v. McKellar, Civ. A. No. 3:88-288-15J.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • April 18, 1989
    ...rule, matters not presented to or passed upon by the trial judge are procedurally defaulted. See, e.g., State v. Newton, 274 S.C. 287, 262 S.E.2d 906 (1980); State v. Jordan, 255 S.C. 86, 93, 177 S.E.2d 464, 468 (1970). Respondents contend, therefore, that petitioner cannot pursue this clai......
  • Hansen v. Owens, No. 16977
    • United States
    • Utah Supreme Court
    • October 8, 1980
    ...v. McGrew, 25 Ohio App.2d 175, 268 N.E.2d 286 (1971); State v. Brotherton, 2 Or.App. 157, 465 P.2d 749 (1970); State v. Newton, S.C., 262 S.E.2d 906 (1980); State v. Doe, 78 Wis.2d 161, 254 N.W.2d 210 2 United States v. Euge, 444 U.S. 707, 100 S.Ct. 874, 63 L.Ed.2d 141 (1980); Gilbert v. Ca......
  • City of Columbia v. Assaad-Faltas, 2005-UP-143
    • United States
    • Court of Appeals of South Carolina
    • March 1, 2005
    ...contentions beyond that specifically raised in the motion to the trial court are not preserved for review on appeal. See State v. Newton, 274 S.C. 287, 293, 262 S.E.2d 906, 910 (1980) (stating matters not passed upon by the trial court will not be reviewed). Two Wal-Mart employees testified......
  • State v. Masters, No. 23680
    • United States
    • United States State Supreme Court of South Carolina
    • March 9, 1992
    ...by his exceptions, and in my opinion, the Court of Appeals properly declined to address the due process issue. State v. Newton, 274 S.C. 287, 262 S.E.2d 906 (1980); State v. Mitchell, 261 S.C. 452, 200 S.E.2d 448 Even if the issue of reasonable opportunity were properly before the Court, th......
  • Request a trial to view additional results
23 cases
  • Roller v. McKellar, Civ. A. No. 3:88-288-15J.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • April 18, 1989
    ...rule, matters not presented to or passed upon by the trial judge are procedurally defaulted. See, e.g., State v. Newton, 274 S.C. 287, 262 S.E.2d 906 (1980); State v. Jordan, 255 S.C. 86, 93, 177 S.E.2d 464, 468 (1970). Respondents contend, therefore, that petitioner cannot pursue this clai......
  • Hansen v. Owens, No. 16977
    • United States
    • Utah Supreme Court
    • October 8, 1980
    ...v. McGrew, 25 Ohio App.2d 175, 268 N.E.2d 286 (1971); State v. Brotherton, 2 Or.App. 157, 465 P.2d 749 (1970); State v. Newton, S.C., 262 S.E.2d 906 (1980); State v. Doe, 78 Wis.2d 161, 254 N.W.2d 210 2 United States v. Euge, 444 U.S. 707, 100 S.Ct. 874, 63 L.Ed.2d 141 (1980); Gilbert v. Ca......
  • City of Columbia v. Assaad-Faltas, 2005-UP-143
    • United States
    • Court of Appeals of South Carolina
    • March 1, 2005
    ...contentions beyond that specifically raised in the motion to the trial court are not preserved for review on appeal. See State v. Newton, 274 S.C. 287, 293, 262 S.E.2d 906, 910 (1980) (stating matters not passed upon by the trial court will not be reviewed). Two Wal-Mart employees testified......
  • State v. Masters, No. 23680
    • United States
    • United States State Supreme Court of South Carolina
    • March 9, 1992
    ...by his exceptions, and in my opinion, the Court of Appeals properly declined to address the due process issue. State v. Newton, 274 S.C. 287, 262 S.E.2d 906 (1980); State v. Mitchell, 261 S.C. 452, 200 S.E.2d 448 Even if the issue of reasonable opportunity were properly before the Court, th......
  • Request a trial to view additional results

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