Gelinas v. Department fo Public Safety

THE STATE OF SOUTH CAROLINA

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD
NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED
BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Raymond G. Gelinas,       
Appellant,

v.

Department of Public Safety,       
Respondent.

Appeal From York County

John C. Hayes, III, Circuit Court Judge

Unpublished Opinion No. 20040UP-498

Submitted September 19, 2004 – Filed
October 5, 2004

AFFIRMED

Daniel D. D’Agostino, of York, for Appellant.

Frank L. Valenta, Jr., of Columbia, for Respondent.

PER CURIAM:  The Department of Public Safety suspended Raymond G. Gelinas’
driver’s license after he refused to take an alcohol breath test.  The circuit
court affirmed the Department’s administrative hearing officer’s decision sustaining
the suspension.  Gelinas appeals and we affirm.
[1]  

FACTS AND PROCEDURAL HISTORY

Officer Gilstrap arrested
Gelinas for DUI during a traffic stop after he smelled the odor of alcohol on
him and Gelinas failed a sobriety test.  At the law enforcement center, Officer
Gilstrap advised Gelinas of his implied consent rights and requested he take
the Datamaster test.  The officer began setting up the Datamaster when
Gelinas told the officer he was not going to take the test.  The test was never
administered. [2]  Because of Gelinas’ refusal and pursuant
to applicable law, Officer Gilstrap issued a Notice of Suspension suspending
Gelinas’ driving privileges. 

On appeal to the circuit court,
Gelinas argued the implied consent law permits only a qualified Datamaster operator
to offer an alcohol breath test.  He claimed that because Officer Gilstrap
was the arresting officer, he could not be qualified as the Datamaster operator
until after he videotaped Gelinas’ conduct pursuant to South Carolina Code Ann.
sections 56-5-2950(a) and 56-5-2953(A)(2)(d) (Supp. 2003).  All parties agreed
no videotaping occurred.  Gelinas therefore contended the officer could
not offer him a valid test to refuse, thus invalidating his suspension. 

The circuit court disagreed and
upheld Gelinas’ suspension finding “the arresting officer, if certified, is
qualified to administer all pre-test processes and procedures including accepting
a refusal, right from the start.”  Moreover, the court concluded the question
of whether Gelinas was offered a valid test was irrelevant because the precautionary
rules governing test procedures are inapplicable if the test is refused.  To
support its conclusion, the court relied on State v. Jansen, 305 S.C.
320, 408 S.E.2d 235 (1991), wherein our supreme court held the validity of test
methods will not be considered when no test is administered and no test results
are offered into evidence.  

STANDARD OF REVIEW

An appeal from a decision of
the department of public safety is governed by the Administrative Procedures
Act.  Byerly Hosp. v. South Carolina State Health & Human Servs. Fin.
Comm’n, 319 S.C. 225, 229, 460 S.E.2d 383, 385 (1995).  Therefore, when
reviewing a final decision of the department, the circuit court, sitting as
an appellate court, may not substitute its judgment for that of the department
as to the weight of the evidence on questions of fact.  S.C. Code Ann. § 1-23-380(A)(6)
(Supp. 2003).  The department’s decision will be affirmed unless it is controlled
by an error of law or is without evidentiary support.  Mictronics, Inc. v.
South Carolina Dep’t of Revenue, 345 S.C. 506, 510, 548 S.E.2d 223, 225
(Ct. App. 2001). 

DISCUSSION

Gelinas contends the circuit
court erred in determining he was offered a valid test because the Datamaster
operator, who was also the arresting officer, did not observe or videotape him
during a twenty-minute pre-test waiting period before offering the test.  He
therefore claims his refusal was void for lack of a valid test offer requiring
the circuit court to reverse his suspension and reinstate his driving privileges. 
We disagree.

South Carolina Code Ann. section
56-5-2950(a) (Supp. 2003) states “[t]he arresting officer may administer
the tests if the [arrested] person’s conduct during the twenty-minute pre-test
waiting period is videotaped pursuant to Section 56-2-2953(A)(2)(d).”  (Emphasis
added.)  Section 56-2-2953(A)(2)(d) also states “if the arresting officer
administers the breath test, the person’s conduct during the twenty-minute
pre-test waiting period must be videotaped.”  (Emphasis added.) 

The statutes require an arresting
officer to videotape a person’s conduct if he administers the Datamaster test,
not offers it.  Therefore, Officer Gilstrap did not have to videotape Gelinas
or observe the twenty-minute waiting period prior to offering the test and accepting
the refusal.  Moreover, the purpose of the videotaping is “to insure that the
results of the breathalyzer test if given are accurate and reliable as evidence
at trial.”  State v. Jansen, 305 S.C. 320, 322, 408 S.E.2d 235, 237 (1991). 
Because Gelinas’ suspension did not depend on the reliability of the test results,
he may not challenge Officer Gilstrap’s pre-test qualifications or methods. 
See Jansen, 305 S.C. at 322-23, 408 S.E.2d at 237 (holding testing
precautions “do not apply to the offer and refusal of a breathalyzer test” and
a defendant may not question the validity of test methods when “no test was
given, and there were no results offered as evidence by the State”); see
also Ex parte Horne, 303 S.C. 30, 32, 397 S.E.2d 788, 789 (Ct.
App. 1990) (“The question of the validity of test methods employed by a breath
test operator does not arise until a test is given and its results are offered
as evidence.”).  

AFFIRMED.

STILWELL, BEATTY,
and SHORT, JJ., concur.

[1]        We decide this case without oral argument pursuant to Rule
215, SCACR.

[2]        At the hearing before the circuit court, Gelinas’ counsel
stated Officer Gilstrap entered the time, date “and everything else” into
the Datamaster before Gelinas refused to take the test.  Counsel therefore
argued testing had already begun and was terminated on Gelinas’ refusal. 
However, we find Officer Gilstrap was merely preparing the Datamaster for
an anticipated breath test that never occurred.