State v. Wells

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.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Richard Alan Wells, Appellant.

Appellate Case No. 2014-002312

Appeal From York County
John C. Hayes, III, Circuit Court Judge

Unpublished Opinion No. 2016-UP-106
Submitted January 1, 2016 – Filed March 2, 2016

AFFIRMED

Paul L. Reeves, of Reeves Law Firm, LLC, of Columbia,
for Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General William M. Blitch, Jr., both of
Columbia; and Solicitor Kevin Scott Brackett, of York,
for Respondent.

PER CURIAM: Richard Alan Wells appeals his conviction for driving under the
influence (DUI), arguing (1) the circuit court erred in failing to dismiss the charge
because the video recording did not capture all of his "conduct" as required by S.C.
Code Ann. § 56-5-2953(A) (Supp. 2015), (2) the circuit court erred in failing to
properly consider the arresting officer's testimony that Wells's demeanor when he
exited his vehicle was a cue he observed to determine if Wells was under the
influence, and (3) the circuit court erred by failing to dismiss the charge because
his due process rights were violated by the arresting officer's conscious decision to
move his vehicle, which omitted potentially exculpatory evidence, including Wells
exiting his vehicle. We affirm1 pursuant to Rule 220(b), SCACR, and the
following authorities:

1. As to issues 1 and 2: State v. Taylor, 411 S.C. 294, 299, 768 S.E.2d 71, 74 (Ct.
App. 2014) ("In criminal appeals from magistrate . . . court, the circuit court does
not conduct a de novo review, but instead reviews for preserved error raised to it
by appropriate exception." (quoting State v. Henderson, 347 S.C. 455, 457, 556
S.E.2d 691, 692 (Ct. App. 2001))); State v. Whitner, 399 S.C. 547, 552, 732 S.E.2d
861, 863 (2012) ("Questions of statutory interpretation are questions of law, which
are subject to de novo review and [this court] [is] free to decide without any
deference to the court below."); S.C. Code Ann. § 56-5-2953(A) (Supp. 2015)
(requiring that a person charged with DUI "must have his conduct at the incident
site and the breath test site video recorded"); S.C. Code Ann. § 56-5-2953(A)(1)(a)
(Supp. 2015) ("The video recording at the incident site must: (i) not begin later
than the activation of the officer's blue lights; (ii) include any field sobriety tests
administered; and (iii) include the arrest of a person for a violation of [s]ection 56-
5-2930 or [s]ection 56-5-2933, or a probable cause determination in that the person
2
violated [s]ection 56-5-2945, and show the person being advised of his Miranda[ ]
rights."); Taylor, 411 S.C. at 305, 768 S.E.2d at 77 ("[T]he plain language of the
statute does not require the video to encompass every action of the defendant, but
requires video of each event listed in the statute."); id. at 306, 768 S.E.2d at 77
("The plain language of the statute demonstrates the legislature intended video
recording of the majority of an officer's encounter with a potential DUI suspect.");
id. at 305-06, 768 S.E.2d at 77 (stating the purpose of the DUI recording statute is
to create direct evidence of a DUI arrest and to capture the person's arrest and the
officer issuing Miranda warnings, which "serves to protect important rights of the
defendant"); id. at 306, 768 S.E.2d at 77 ("[I]nterpreting the statute to require
dismissal of the charges when the defendant is off camera for a short period of time
and the gap does not occur during any of those events that either create direct
evidence of a DUI or serve important rights of the defendant would result in an
absurdity that could not possibly have been intended by the legislature.").

1
We decide this case without oral argument pursuant to Rule 215, SCACR.
2
Miranda v. Arizona, 384 U.S. 436 (1966).
2. As to whether the arresting officer's failure to record potentially exculpatory
evidence violated Wells' due process rights: Smith v. NCCI, Inc., 369 S.C. 236,
247-48, 631 S.E.2d 268, 274 (Ct. App. 2006) ("When a trial court does not
explicitly rule on an argument raised, and the appellant makes no Rule 59(e),
SCRCP, motion to obtain a ruling, the appellate court may not address the issue.");
City of Rock Hill v. Suchenski, 374 S.C. 12, 15-16, 646 S.E.2d 879, 880-81 (2007)
(finding an issue was unpreserved when the circuit court, reviewing the magistrate
judge's order, did not address an issue raised to the magistrate judge and the
appellant did not file a Rule 59(e) motion to reconsider).

AFFIRMED.

SHORT, GEATHERS, and MCDONALD, JJ., concur.