State v. Sullivan

Decision Date04 May 1992
Docket NumberNo. 23781,23781
Citation310 S.C. 311,426 S.E.2d 766
CourtSouth Carolina Supreme Court
PartiesThe STATE, Appellant, v. Paul A. SULLIVAN, Respondent. . Heard

Joseph H. Lumpkin, Jr., Asst. Chief Counsel, of S.C. Dept. of Highways and Public Transp., Columbia, for appellant.

Michael S. O'Neal and Reese I. Joye, Jr., both of the Joye Law Firm, North Charleston, for respondent.

FINNEY, Justice:

The state appeals from a circuit court order which reversed and remanded for a new trial Respondent Paul A. Sullivan's magistrate court conviction for driving under the influence of alcohol. We reverse.

On November 8, 1989, Trooper Dan Merritt was directing traffic across the damaged Ben Sawyer Bridge when the respondent failed to heed his signal to stop, forcing the trooper to jump from the path of respondent's vehicle. Trooper Merritt yelled for the respondent to stop and the vehicle came to a halt. The trooper smelled a strong odor of alcohol on the respondent's breath and after administering the horizontal gaze nystagmus (HGN) and other field sobriety tests, he arrested the respondent for driving under the influence of alcohol or drugs (DUI), first offense.

On March 15, 1990, the respondent was convicted in magistrate court. The respondent made a post-trial motion for a new trial which the magistrate took under advisement. By letter dated March 29, 1990, the magistrate denied the motion. On April 20, 1990, respondent served notice of intent to appeal, and filed a supplement to his notice on June 5, 1991. The circuit court reversed and remanded the case upon the following grounds:

1. That the respondent had timely objected to evidence from the HGN test; and the magistrate erred in admitting such evidence because a) the arresting officer was not sufficiently trained in the theory and administration of the scientific/medical test; b) the testimony was highly speculative; and c) any probative value was far outweighed by the prejudicial effect of such "pseudo-scientific" evidence.

2. That the magistrate improperly denied respondent's motion to suppress evidence of his refusal to submit to the breathalyzer test based upon the state's failure to provide reasonable assistance for the respondent to obtain an independent blood test.

Initially, appellant asserts that the circuit court erred in hearing the case when the appeal from magistrate court was not filed within ten days of the jury verdict. The state relies on S.C.Code Ann. § 18-3-30 (1985), which provides that "the appellant shall, within ten days after sentence, serve notice of appeal upon the magistrate who tried the case, stating the grounds upon which the appeal is founded."

However, the statutory time for appeal has been enlarged by the following amendment regarding procedure in magistrate court:

No motion for a new trial may be heard unless made within five days from the rendering of the judgment. The right of appeal from the judgment exists for twenty-five days after the refusal of a motion for a new trial.

S.C.Code Ann. § 22-3-1000 (Supp.1991).

The state argues that respondent's appeal is from the DUI conviction and not from the denial of his motion for a new trial. Section 22-3-1000 specifically provides that the right of appeal from the judgment exists for twenty-five days after refusal of a motion for a new trial. As a rule, specific laws prevail over general laws, and later legislation takes precedence over earlier legislation. Lloyd v. Lloyd, 295 S.C. 55, 367 S.E.2d 153 (1988). We hold that the circuit court properly exercised jurisdiction over respondent's timely appeal.

The state next asserts that the circuit court erred in considering respondent's supplement to his notice of intent to appeal. The record does not reflect that the appellant objected to the filing of the supplement nor an exception before the circuit court. To preserve an issue for appellate review, an appellant must object at his first opportunity. See State v. Williams, 303 S.C. 410, 401 S.E.2d 168 (1991). Nonetheless, we find that the issue was preserved for appeal by respondent's objection during trial to the introduction of evidence from field sobriety tests.

Seeking to elucidate Exception 14 under "Other Grounds," the respondent filed a supplement to his notice of intent to appeal on June 5, 1991, over one year after the notice was filed, asserting error in the admission of testimony regarding the HGN test. Section 18-3-30 requires that within ten days after sentencing, the notice of appeal shall be served stating the grounds for appeal. 1 Exception 14 of the notice of intent to appeal follows in its entirety:

Whatever additional grounds that may appear as a result of the Return and/or the Transcript of Record.

We find the scope of Exception 14 too broad, in and of itself, to constitute a sufficient ground for appeal. However, we conclude that under the circumstances of this case, it is adequate to put the state on notice that additional exceptions may be asserted. The validity of the supplement to the notice of appeal is not before this Court inasmuch as it was not objected to nor was the issue of validity raised before or ruled upon by the circuit court.

Next, the state contends the circuit court erred in ruling inadmissible the testimony of the arresting officer concerning respondent's HGN test.

The circuit judge expressed skepticism regarding HGN tests and noted that nystagmus may be caused by physiological forces other than alcohol consumption 2. Additionally, the circuit court related reservations about police officers conducting and interpreting a...

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60 cases
  • Williams v. State
    • United States
    • Florida District Court of Appeals
    • 18 Marzo 1998
    ...Several courts do not even consider the HGN test to be a "scientific" test necessitating a Frye analysis. See, e.g., State v. Sullivan, 310 S.C. 311, 426 S.E.2d 766 (1993); State v. Murphy, 451 N.W.2d 154 (Iowa 1990); State v. Clark, 234 Mont. 222, 762 P.2d 853 (1988). Those courts finding ......
  • State v. O'Key
    • United States
    • Oregon Supreme Court
    • 7 Julio 1995
    ...is "scientific." Several courts consider the HGN test no more scientific than other field sobriety tests. See, e.g., State v. Sullivan, 310 S.C. 311, 426 S.E.2d 766 (1993); State v. Murphy, 451 N.W.2d 154 (Iowa 1990); State v. Bresson, 51 Ohio St.3d 123, 554 N.E.2d 1330 (1990). The rational......
  • Anonymous (M-156-90) v. State Bd. of Medical Examiners
    • United States
    • South Carolina Court of Appeals
    • 6 Junio 1996
    ...v. Butler, 316 S.C. 465, 451 S.E.2d 386 (1994) (issues not raised at merits hearing were not preserved for review); State v. Sullivan, 310 S.C. 311, 426 S.E.2d 766 (1993) (to preserve an issue for appellate review, appellant must object at the first opportunity); Cook v. South Carolina Dep'......
  • Schultz v. State
    • United States
    • Court of Special Appeals of Maryland
    • 1 Septiembre 1994
    ...such case, which held that the HGN test is not a scientific test and is admissible based upon a lower standard, is State v. Sullivan, 310 S.C. 311, 426 S.E.2d 766 (1993). There, the trial court, according to the Supreme Court of South Carolina, had ruled HGN testing inadmissible, skepticism......
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2 books & journal articles
  • The offense
    • United States
    • James Publishing Practical Law Books Defending Drinking Drivers - Volume One
    • 31 Marzo 2022
    ...courts do not consider the HGN test to be a “scientific” test that would necessitate a Frye analysis. See, e.g., State v. Sullivan , 426 S.E.2d 766 (S.C. 1993), State v. Murphy , 451 N.W.2d 154 (Iowa 1990); State v. Clark , 762 P.2d 853 (Mont. 1988); State v. Bresson , 554 N.E.2d 1330 (Ohio......
  • Attacking and defending field sobriety tests and evaluations
    • United States
    • James Publishing Practical Law Books Attacking and Defending Drunk Driving Tests
    • 5 Mayo 2021
    ...v. Apollo , 412 Pa. Super. 453, 603 A.2d 1023 (1992) (HGN is admissible with a proper foundation). • South Carolina: State v. Sullivan , 310 S.C. 311, 426 S.E.2d 766 (S.C. 1993) (HGN is admissible for intoxication evidence but not for alcohol level). • Tennessee: State v. Murphy , 953 S.W.2......

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