State v. Bass

THIS OPINION HAS NO PRECEDENTIAL VALUE. 
IT SHOULD NOT BE CITED OR RELIED ON AS

PRECEDENT IN ANY PROCDEEDING EXCEPT AS
PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State, Appellant,

v.

Jonathan Bass, Respondent.

Appeal From York County

 John C. Hayes, III, Circuit Court Judge

Unpublished Opinion No. 2004-UP-541

Heard October 12, 2004 – Filed October
26, 2004

REVERSED AND REMANDED

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott,
Assistant Attorney General Deborah R. J. Shupe, all of Columbia; and Solicitor
Thomas E. Pope, of York, for Appellant.

Christopher A. Wellborn, of Rock Hill, for Respondent.

PER CURIAM:  Jonathan Bass was arrested
for driving under the influence.  At a pre-trial hearing, the trial judge suppressed
the results of a breath analysis test administered to Bass following his arrest. 
The State appeals this evidentiary exclusion, arguing the trial judge erred
in finding the test’s suppression was statutorily mandated.  We reverse and
remand.
FACTS

The facts of this case are undisputed. 
In August 2001, Jonathan Bass was arrested for driving under the influence. 
Once at the police station, the arresting officer advised Bass of his implied
consent rights and offered him a breath test to gauge his breath alcohol concentration. 
During the statutorily mandated videotaped pre-test waiting period, Bass requested
to speak to his attorney.  Since there was no telephone in the breath analysis
room, the arresting officer escorted Bass out of the room and off camera to
make the phone call.  Bass and the officer returned to the testing room approximately
eleven minutes later.  The officer testified he remained in close proximity
to Bass the entire time they were off camera and at no time did Bass place a
foreign substance or object into his mouth.  At the conclusion of the twenty-minute
period (including the time both were absent from the room and off camera), the
breath analysis test was conducted on video by the arresting officer.   Bass
registered a .23 breath alcohol concentration.  

At a pre-trial hearing, Bass moved to
suppress the results of the breath analysis test.  Finding that the arresting
officer did not follow the statutory requirements applicable to administering
the test, specifically that the test subject’s conduct during the twenty-minute
waiting period be videotaped, the trial judge found the test results inadmissible. 
This appeal followed.

STANDARD OF REVIEW

The trial judge has considerable discretion
in ruling on the admissibility of evidence.  State v. Sheldon, 344 S.C.
340, 342, 543 S.E.2d 585, 585-86 (Ct. App. 2001).  On appeal, the trial court’s
ruling will not be disturbed absent a prejudicial abuse of discretion amounting
to an error of law.  Id.; see also  State v. Smicklevich,
268 S.C. 411, 415, 234 S.E.2d 230, 232 (1977).

LAW / ANALYSIS

The State contends South Carolina's
implied consent statute does not mandate automatic exclusion of a breath test's
results when the pre-test waiting period is not videotaped in its entirety. 
We agree.

By operating a motor vehicle in this state,
one automatically consents to searches of his breath, blood, and urine for the
presence of alcohol or drugs if arrested for an offense arising from the alleged
influence of such while driving.  S.C. Code Ann. § 56-5-2950(a) (Supp. 2003). 
This “implied consent” to be searched is circumscribed by several restrictions
and safeguards incorporated into the framework of the implied consent statute. 
For instance, one may still refuse to take the tests at the sufferance of a
penalty (suspension of his driving privileges for at least ninety days), and
must be advised of this right of refusal before any test is given.  S.C. Code
Ann. § 56-5-2950(a)(1) (Supp. 2003).  One may also request an additional independent
test performed by a person of his own choosing and has a right to “affirmative
assistance” from the police in obtaining such a test.  S.C. Code Ann. § 56-5-2950(a)
(Supp. 2003).  The authorities must also offer a person suspected of driving
under the influence the least intrusive of the three tests, a breath analysis
test, before further tests are ordered (unless a breath test is medically unfeasible
or there is reasonable grounds to suspect drug use other than alcohol).  Id. 

In addition to these statutory rights,
the implied consent statute requires that a twenty-minute pre-test waiting period
be videotaped “pursuant to Section 56-5-2953(A)(2)(d)” when the arresting officer
is administering a breath test.  S.C. Code Ann. § 56-5-2950(a) (Supp. 2003). 
Section 56-5-2953(A)(2) reads:

[t]he videotaping at the breath site: . . . (d) must . . .
include the person’s conduct during the required twenty-minute pre-test waiting
period, unless the officer submits a sworn affidavit certifying that it was
physically impossible to videotape this waiting period.  However, if the
arresting officer administers the breath test, the person’s conduct during the
twenty-minute pre-test waiting period must be videotaped.

S.C. Code Ann. § 56-5-2953(A)(2) (Supp. 2003) (emphasis
added).  Because the arresting officer performed the breath test on Bass, the
videotaping of the pre-test waiting period was clearly required by the implied
consent statute in the case at bar.  By failing to videotape the entire twenty
minutes, the officer violated a mandate of the implied consent statute.   

Having concluded that the officer’s administration
of the breath test violated section 56-5-2950, we next consider whether this
violation automatically renders the test results inadmissible.  We conclude
that it does not.

The failure of law enforcement to strictly
adhere to certain testing guidelines found in the implied consent statute often
results in the suppression of the test results at trial.  See e.g.
State v. Mullins, 331 S.C. 501, 503, 489 S.E.2d 923, 924 (1997); State
v. Pipkin, 294 S.C. 336, 338, 364 S.E.2d 464, 465 (1988); State v. Kimbrell,
326 S.C. 344, 349, 481 S.E.2d 456, 459 (Ct. App. 1997).  However, a violation
of the implied consent statute does not make suppression of the test results
a foregone conclusion.  See State v. Hunley, 349 S.C. 1, 6, 562
S.E.2d 472, 474 (2002) (finding the trial court erred in automatically suppressing
a breath test’s results when no prejudice to the defendant was shown as a result
of the implied consent statute’s violation).  It is well established that “exclusion
of evidence should be limited to violations of constitutional rights and not
to statutory violations, at least where the appellant cannot demonstrate prejudice
at trial resulting from the failure to follow statutory procedure.”  State
v. Chandler, 267 S.C. 138, 143, 226 S.E.2d 553, 555 (1976). 

In the case before us, the trial court
found that the failure to videotape the entire twenty-minute waiting period
automatically mandated the suppression of the breath test.  The trial court
reached this conclusion without any findings on whether Bass was prejudiced
by the statutory violation.  When a trial court suppresses evidence based on
a statutory violation without making any findings on whether the violation prejudiced
the moving party, it has made an error of law. The proper action for this court,
therefore, is to reverse the suppression order and remand to the trial court
for the purpose of making such findings.  Sheldon, 344 S.C. at 343-44,
543 S.E.2d at 586.

REVERSED AND REMANDED.

GOOLSBY, ANDERSON, and WILLIAMS, JJ.,
concur.