State v. Young

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

The State,       
Respondent,

v.

Olin Earl Young, Jr.,       
Appellant.

Appeal From Greenville County

John W. Kittredge, Circuit Court Judge

Unpublished Opinion No. 2004-UP-658

Heard November 10, 2004 – Filed December
28, 2004

AFFIRMED

Jack B. Swerling, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott,
Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia; and
Solicitor Robert M. Ariail, of Greenville, for Respondent.

PER CURIAM:  Olin Earl Young appeals his
convictions for two counts of felony driving under the influence and two counts
of reckless homicide.  He argues the trial court erred in admitting evidence
of his refusal to take a breathalyzer test and the results of a blood alcohol
test. [1]   We affirm. 

BACKGROUND

In 1999, Young caused an automobile
accident, resulting in the death of two people.  All witnesses at the scene,
including the police officers, testified Young, who suffered injuries to his
head and chest in the accident, smelled of alcohol and was having difficulty
walking and talking.  Young was arrested at the scene for felony DUI. 

At trial, the jury convicted Young of two counts
of felony DUI resulting in death and two counts of reckless homicide.  The trial
judge sentenced him to consecutive twenty-five year terms for the two counts
of felony DUI resulting in death and concurrent ten-year terms for both counts
of reckless homicide. 

LAW/ANALYSIS

I.  Videotape Evidence

Young claims the trial court erred in admitting
evidence of his refusal to take the breathalyzer test because the arresting
officers did not comply with the provisions of section 56-5-2953 of the South
Carolina Code.  We disagree.

Section 56-5-2953 requires violators of
the driving under the influence statute to be videotaped at the incident site
and the breath test site.  S.C. Code Ann. § 56-5-2953(A) (Supp. 1998). [2]   Among other things, the videotaping
at the breath test site must include the reading of the person’s rights, a twenty-minute
pre-test waiting period, and the entire testing procedure or the person’s refusal
to take the test.  Id.  However, failure to produce a videotape is not
grounds for dismissal of a DUI, felony DUI, or driving with an unlawful alcohol
concentration charge if the arresting officer submits a sworn affidavit certifying
that despite reasonable efforts, the equipment was inoperable and there was
no other operable breath test facility available in the county.  § 56-5-2953(B). 
Here, Young’s refusal was not videotaped and Young challenges the effectiveness
of the arresting officer’s affidavit.  Young argues surveillance equipment at
the station that was purchased and installed by the city suffices as “videotaping
equipment” for purposes of this statute.  At the time of Young’s arrest, the
city police department was using this equipment in the hallway for security
purposes rather than in the Datamaster room. 

The statute provides “SLED is responsible for purchasing,
maintaining, and supplying all necessary videotaping equipment for use at the
breath test sites.”  § 56-5-2953(D).  Additionally, the act creating section
56-5-2953 stated “[t]he provisions in Section 56-5-2953(A), (B), and (C) take
effect for each breath test site as soon as the breath test site is equipped
with a videotaping device.”  Act No. 434, 1998 S.C. Acts § 18, as amended
by Act No. 97, 1999 S.C. Acts § 1.  This language, with minor non-substantive
changes has since been incorporated into the statute.  See S.C. Code
Ann. § 56-5-2953(G) (Supp. 2003).  When this incident occurred in August 1999,
although the city had its own videotaping equipment, SLED had not installed
videotaping equipment to meet the requirements of this statute.  In fact, SLED
did not install the videotaping equipment in the city Datamaster test site until
September 2000.  Therefore, because the department had not yet been equipped
by SLED pursuant to the statute, the breath test provisions of subsections (A)
and (B) are inapplicable to Young’s case and the trial court properly admitted
evidence of Young’s refusal.

II.  Blood Alcohol Test

Young claims the trial court erred in admitting
the results of his blood alcohol test because the blood was drawn without actual
consent or compliance with the requirements of the implied consent statute. 
We disagree.

The implied consent statute prohibits
the administration of drug or alcohol tests and obtaining drug or alcohol samples
until the person has been informed in writing of his rights in regards to the
procedures.  S.C. Code Ann. § 56-5-2950(a) (Supp. 1998).  Officer Blose advised
Young of his implied consent rights on two occasions, and Young signed documentation
to that effect.  Young also rejected medical care at the scene and at the police
station, though he was advised of his rights to medical services. 

Later on, however, he “ask[ed] to go to the hospital.” 
At the hospital, Dr. Theresa Oldson requested a medical blood alcohol test to
determine Young’s degree of impairment and whether that impairment was caused
by his injuries or alcohol.  Additionally, Oldson explained “the biggest reason
is he had potentially life threatening injuries that often times require surgery
and most all the time require narcotics and the administration of multiple drugs. 
And it was important for me to know what the alcohol level was or if he had
been drinking.” 

Young claims the results of these tests should
not be admitted as evidence because he was not notified of his implied consent
rights at the hospital.  However, in State v. Hunter, 305 S.C. 560, 561,
410 S.E.2d 242, 242 (1991), our supreme court found that even if a defendant
was not afforded the procedural safeguards contained in the implied consent
statute, those safeguards were inapplicable because the test was conducted for
the purpose of medical diagnosis and treatment.  Here, not only was the test
performed for purposes of medical diagnosis and treatment, but Young requested
the treatment.  Thus the implied consent statute simply does not apply. 

AFFIRMED. 

ANDERSON, STILWELL, and SHORT, JJ., concur. 

[1] In his brief, Young asserted two other evidentiary issues
as well as a ground for exclusion of his blood test results not addressed
in this opinion.  Young conceded these issues at oral argument.

[2] The
statute is referenced as it existed at the time of Young’s arrest.  It has
since been amended.