State v. Sawyer

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, Appellant,

v.

Phillip Wesley Sawyer, Respondent.

Appeal From Spartanburg County

Roger L. Couch, Circuit Court Judge

Unpublished Opinion No. 2011-UP-263

Heard March 10, 2011 – Filed June 7, 2011 

AFFIRMED

Attorney General Alan Wilson, Chief Deputy
Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W.
Elliott, Assistant Attorney General William M. Blitch, Jr., all of Columbia; Solicitor
Barry Joe Barnette, of Spartanburg, Appellant.

Assistant Appellate Defender LaNelle
Durant, of Columbia, for Respondent.

PER CURIAM:  The State contends the circuit court
erred in suppressing the videotape, evidence, and breath test results produced
at the breath test site following Phillip Sawyer's (Sawyer) arrest for driving
under the influence.  Despite the State's failure to record the audio portion
of Sawyer's breath test pursuant to section 56-5-2953 of the South Carolina
Code (2006),[1] the State claims any deficiencies in the recording went to the weight of the
evidence and not its admissibility. 

We affirm pursuant
to Rule 220(b)(1), SCACR, and the following authorities: S.C. Code Ann. §
56-5-2953(A) (2006) ("A person who [commits a DUI] must have his conduct
at the incident site and the breath test site videotaped. . . . The videotaping
at the breath site[] . . . must include the reading of Miranda rights, the
entire breath test procedure, the person being informed that he is being
videotaped, and that he has the right to refuse the test[] . . .); S.C. Code
Ann. § 56-5-2953(B) (2006) (stating noncompliance with subsection (A)(1) does
not automatically require the dismissal of a DUI if the officer submits
a sworn affidavit certifying: (1) the videotape equipment was inoperable and reasonable efforts were made to maintain the equipment; or (2) "it
was physically impossible to produce the videotape because the person needed
emergency medical treatment"; or (3) "exigent circumstances
existed," and providing "[n]othing in this section prohibits the
court from considering any other valid reason for the failure to produce the
videotape based upon the totality of the circumstances; nor do the provisions
of this section prohibit the person from offering evidence relating to the
arresting law enforcement officer's failure to produce the videotape"); City
of Rock Hill v. Suchenski, 374 S.C. 12, 15, 646 S.E.2d 879, 880 (2007)
(stating in criminal cases, the appellate court reviews errors of law only;
therefore, this court's scope of review is limited to correcting the circuit
court's errors of law).

AFFIRMED.

WILLIAMS, GEATHERS,
and LOCKEMY, JJ., concur.

[1] Because Sawyer was charged in 2007, prior to the 2009
amendment of this section, we apply the language of the pre-amended statute.