State v. Smith

• Decision Date: 06 December 1995
• Docket Number: No. 2443,2443
• Citation: 321 S.C. 13,467 S.E.2d 110
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Charlie S. SMITH, Appellant. . Heard

Page 110

467 S.E.2d 110

321 S.C. 13

The STATE, Respondent, v.Charlie S. SMITH, Appellant.

No. 2443.

Court of Appeals of South Carolina.

Heard Dec. 6, 1995.

Filed Jan. 8, 1996.

Rehearing Denied Feb. 22, 1996.

Certiorari Granted Aug. 8, 1996.

Robert T. Williams, Sr., Williams & Brink, Lexington, for appellant.

Attorney GeneralCharles Molony Condon, Deputy Attorney GeneralJohn W. McIntosh, Assistant Deputy Attorney GeneralSalley W. Elliott, Assistant Attorneys General Rakale B. Smith, and Caroline Callison Tiffin, Columbia; and Solicitor Donald V. Myers, Lexington, for respondent.

HEARN, Judge.

Charlie S. Smith appeals his conviction for driving under the influence (DUI).We reverse based upon the chain of custody of the blood sample introduced into evidence.

I.

Smith argues the trial judge erred in admitting blood analysis evidence where subsequent actions by law enforcement personnel negated any reasonable assistance provided to Smith in obtaining his own blood sample.We disagree.

After Smith was arrested for DUI he refused to submit to a breathalyzer test.Smith requested a blood test and the arresting officer, Trooper Bullard, transported him to the Lexington County Medical Center where two vials of blood were drawn.Both vials were given to Bullard who then transported Smith back to the Lexington County Detention Center for booking.Bullard stated he gave the booking officer Smith's vial which was marked with Smith's name.Smith was standing next to Bullard when this was done.The booking form which lists property of an inmate, however, did not list the vial of blood.

Smith and his wife testified that after Smith was released from jail, they attempted to retrieve his vial of blood.They claimed they called the Detention Center, Lexington County Medical Center, the Highway Department, and SLED, but no one could locate the sample.In fact, the vial had been kept in a refrigerator at the Detention Center from the date Smith was booked.After one year and two months, the sample was deemed no longer valid for an alcohol content test and was subsequently destroyed.

Under the implied consent statute, S.C.Code Ann. § 56-5-2950(Supp.1994), any person who operates a motor vehicle in this State gives implied consent to chemical tests of his or her breath, blood, or urine for purposes of determining the presence of alcohol or drugs if the person is arrested for an offense arising from acts alleged to have been committed while under the influence of alcohol, drugs, or a combination of them.The statute provides further:

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....The failure or inability of the person tested to obtain additional tests does not preclude the admission of evidence relating to the tests or samples taken at the direction of the law enforcement officer.

The arresting officer shall provide reasonable assistance to the person to contact a qualified person to conduct additional tests.

Under this statute, an officer does not have a duty to affirmatively assist persons in obtaining any independent tests when the accused refuses the breathalyzer test.State v. Lewis, 266 S.C. 45, 221 S.E.2d 524(1976).Lewis only requires a reasonable opportunity to obtain an independent blood test be afforded a person who refuses a breathalyzer test.State v. Sullivan, 310 S.C. 311, 426 S.E.2d 766(1993);State v. Degnan, 305 S.C. 369, 409 S.E.2d 346(1991).

In this case, Smith was not entitled to reasonable assistance in obtaining his own blood sample since he refused to submit to a breathalyzer test.Rather, law enforcement only had to provide Smith with a reasonable opportunity to obtain a blood test without affirmative assistance.The officers undertook, however, to provide affirmative assistance even though this was not required.

We agree with the trial judge that this issue is controlled by State v. Wickenhauser, 309 S.C. 377, 423 S.E.2d 344(1992).Wickenhauser was arrested for DUI and a breath test was administered.Wickenhauser requested an independent blood test, and was taken to Lexington Medical Center.Blood samples were drawn, and Wickenhauser received one vial of blood.The officer took possession of the second vial and transported Wickenhauser back to jail.Wickenhauser was booked at the jail and relinquished custody of his personal belongings to the jailer.The itemized receipt for his personal effects did not contain any reference to the vial of blood.

Wickenhauser was released the next day and received his personal items, which did not include the vial of blood.Wickenhauser signed a receipt and left without inquiring about the blood sample.When he went back to the jail two days later seeking the vial, Wickenhauser was advised by jail personnel they had no record of receiving a blood sample from him and were unable to locate such a vial.

At trial, Wickenhauser moved to suppress the results of his breathalyzer and blood tests on the ground he was not reasonably assisted in obtaining an independent blood test as provided in the implied consent statute.The trial court denied the motion and, following his conviction, Wickenhauser appealed.

The supreme court held that under State v. Pipkin, 294 S.C. 336, 364 S.E.2d 464(1988), failure to provide reasonable assistance under the implied consent statute requires a suppression of both the breathalyzer and the blood test results.The court noted Wickenhauser underwent an independent blood alcohol test in compliance with the statute and took custody of a blood sample.The court concluded Wickenhauser received aid sufficient to constitute reasonable assistance under § 56-5-2950(a), and added: "Whether this assistance was subsequently negated by the acts of the law enforcement personal (sic) presented an issue of fact for the determination of the jury."State v. Wickenhauser, 309 S.C. at 379, 423 S.E.2d at 346.Accordingly, the supreme court affirmed the trial court's admission of the breath and blood tests into evidence.

Although Smith never actually received physical custody of his sample, he was present when Trooper Bullard gave the sample to the jailer for safekeeping.When he left the jail, Smith did not inquire about his sample and did not return to the jail later to try and obtain his sample.We think Smith had the burden to inform jail personnel that his sample was turned over to the jailer the night before and to inquire about retrieving the sample.We conclude under the facts of this case Smith...