State v. Parker, 20721
| Citation | 271 S.C. 159,245 S.E.2d 904 |
| Decision Date | 10 July 1978 |
| Docket Number | No. 20721,20721 |
| Court | United States State Supreme Court of South Carolina |
| Parties | The STATE, Respondent, v. Vernon E. PARKER, Appellant. |
Warren & Pitts, Allendale, for appellant.
Atty. Gen. Daniel R. McLeod and Asst. Attys. Gen. Brian P. Gibbes and Sally G. Young, Columbia and Solicitor Sylvia W. Westerdahl, Aiken, for respondent.
The appellant, Vernon E. Parker, was convicted of driving a motor vehicle while under the influence of intoxicating liquor, second offense, in violation of § 56-5-2930, Code of Laws of South Carolina (1976). He appeals, charging that the trial judge erred (1) in refusing to rule that his arrest was illegal; (2) in admitting in evidence the results of a breathalyzer test; and (3) in failing to instruct the jury that the presumption of intoxication arising from the breathalyzer test was rebuttable.
Officer Center of the Aiken Police Department received a radio call around 3:30 a. m. that the driver of a certain described automobile was believed to be intoxicated. The officer, who was patrolling in an unmarked vehicle, observed a car fitting the description and began following it. Officer Center testified that he followed the automobile for approximately one mile, and that he observed appellant driving across the middle of a two-lane road. The officer testified that he stopped appellant's automobile, charged him with driving under the influence, and took him to the police station where he agreed to take the breathalyzer test.
Appellant contends that the officer lacked probable cause to arrest him for driving under the influence, and that the officer's testimony indicates that he arrested him solely on the basis of the tip from an undisclosed source. He argues that since the officer lacked probable cause to make an arrest, he could not lawfully arrest him for a misdemeanor not committed in the officer's presence, without a warrant. State v. Francis, 152 S.C. 17, 149 S.E. 348 (1929). Appellant concludes that since his arrest was illegal, the officer's testimony regarding his personal observation and his opinion of appellant's sobriety was improperly admitted in evidence.
We are of the view that appellant's arrest was based upon probable cause to believe that he had committed a misdemeanor. The officer testified that he personally observed the appellant driving across the middle of a two-lane road. This evidence of a violation of § 56-5-1810, 1976 Code, which requires that a . . . "vehicle shall be driven upon the right half of the roadway . . . .", alone was sufficient to justify stopping and arresting the appellant. When considered in connection with the tip that appellant was driving an automobile while intoxicated, we have no difficulty in concluding that the arrest of appellant for driving under the influence was based upon probable cause.
Appellant next submits that the lower court erred in admitting in evidence, over objection, the results of a breathalyzer test. The use of such test is provided for under our implied consent statute, § 56-5-2950, 1976 Code. Under this statute, "Any person who operates a motor vehicle upon the public highways of this State shall be deemed to have given consent to a chemical test of his breath for the purpose of determining the alcoholic content of his blood if arrested for any offense arising out of acts alleged to have been committed while the person was driving a motor vehicle while under the influence of intoxicating liquor." The South Carolina Law Enforcement Division is authorized to approve methods to be used in administering the tests. It has approved the use of the breathalyzer. The breathalyzer is a machine designed to analyze a sample of breath to determine the alcoholic content of the blood.
Appellant, upon being arrested, agreed to take the test. The breathalyzer registered .17 of one percent. 1 The results of this test were offered in evidence and admitted. Appellant argues that the results of such a test should not have been admitted because a proper foundation was not laid to establish the validity of the test results. He maintains that the State should have been required to offer the testimony of the person who prepared the simulator solution, used in connection with the breathalyzer, to determine whether the simulator solution was properly prepared.
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.
Although the implied consent statute has been in effect several years in this state, the point raised is one of novel impression in this court. We, accordingly, attempt to give to the bench and bar guidance in presentation of the cases hereafter. Appellant does not contend that results of a breathalyzer test, in general, are not admissible in evidence. Rather, he urges that the court...
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State v. Salisbury
...twenty minutes prior to the test; and (4) the test was administered by a qualified person in the proper manner. State v. Parker, 271 S.C. 159, 163, 245 S.E.2d 904, 906 (1978). The testimony of an operator that he or she had run a simulator test immediately before the actual test, and that t......
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State v. Degnan
...of twenty minutes is designated for observation of an accused before the breathalyzer test can be administered. See State v. Parker, 271 S.C. 159, 245 S.E.2d 904 (1978). I would suggest, as one option, that this twenty-minute period could be used to afford an accused the opportunity to comm......
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State v. Liuafi, 7562
...enumeration in this section means that the PHR regulations are applicable only to the proceedings enumerated. In State v. Parker, S.C., 245 S.E.2d 904, 906 (1978), the South Carolina Supreme Court affirmed the trial court's admission into evidence of breathalyzer results over defendant/appe......
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State v. Newton
...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 ......