State v. Plumley

• Decision Date: 13 July 2022
• Docket Number: 2022-UP-292,Appellate Case 2019-000882
• Parties: State of South Carolina, Appellant, v. Danny Jame Plumley, Respondent.
• Court: South Carolina Court of Appeals

State of South Carolina, Appellant,
v.
Danny Jame Plumley, Respondent.

No. 2022-UP-292

Appellate Case No. 2019-000882

Court of Appeals of South Carolina

July 13, 2022

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

Heard March 10, 2022

Appeal From Greenville County Edward W. Miller, Circuit Court Judge

Attorney General Alan McCrory Wilson and Assistant Attorney General Joshua Abraham Edwards, both of Columbia; and, Solicitor William Walter Wilkins, III, Solicitor, of Greenville, all for Appellant.

David Alan Wilson, of Wilson &Englebardt, LLC, of Greenville, for Respondent.

PER CURIAM

The State appeals the circuit court's order affirming the magistrate court's suppression of David Jame Plumley's blood-alcohol-

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concentration (BAC) test.^[1] The State argues law enforcement was not required to give Plumley the implied-consent warning provided by section 56-1-2130 of the South Carolina Code (2018) because even though Plumley held a commercial driver's license (CDL), he was not driving a commercial vehicle when he was stopped for suspicion of driving under the influence (DUI). Additionally, the State contends that even if Plumley was entitled to the advisement provided in section 56-1-2130, law enforcement's failure to give it did not prejudice him. We reverse and remand.

Section 56-l-2130(A) incorporates by reference section 56-5-2950 of the South Carolina Code (2018)-the implied-consent statute applicable to all drivers. Section 56-5-2950(J) provides BAC test results may be excluded if proper policies and procedures are not followed and "if the trial judge or hearing officer finds this failure materially affected the accuracy or reliability of the test results or the fairness of the testing procedure." (emphasis added). The State maintains unless the failure to give the CDL implied-consent warning prejudiced Plumley in some way, the fairness of the testing procedure was not affected and his BAC test result should not have been suppressed. We agree.

In Taylor v. South Carolina Department of Motor Vehicles, the court examined whether the failure to give a driver his implied consent warnings in writing was prejudicial when the driver had been given the warning verbally and claimed to have understood it. 368 S.C. 33, 38-39, 627 S.E.2d 751, 753-54 (Ct. App. 2006), affd, 382 S.C. 567, 677 S.E.2d 588 (2009). The court reasoned "Taylor does not argue . . . he would have provided a blood test^[2] [instead of refusing it] if he had received the implied[-]consent rights in writing. Therefore, Taylor was not prejudiced by the fact that [the arresting officer] read the implied[-]consent rights out loud." Id. at 38, 627 S.E.2d at 754.

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In Carroll v. South Carolina Department of Public Safety, Carroll testified he likely would have refused the BAC test, instead of submitting to it, if he had received the proper warnings. 388 S.C. 39, 44, 693 S.E.2d 430, 433 (Ct. App. 2010). In spite of his assertions the written warning would have changed his decision, the court...