State v. Craig

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.

Michele Nichole Craig, Appellant.

Appeal From York County

Lee S. Alford, Circuit Court Judge

Unpublished Opinion No. 2009-UP-603

Heard December 10, 2009 – Filed December
22, 2009

AFFIRMED

Michael
L. Brown Jr., of Rock Hill, for Appellant.

Attorney
General Henry Dargen 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 Kevin S. Brackett, of York,
for Respondent.

PER
CURIAM: 
This appeal involves a 2007 conviction for driving under the influence (DUI). 
On appeal, Craig argues the trial court erred in failing to dismiss the DUI
charge, or in the alternative, failing to suppress: (1) the incident site tape
and results of the field sobriety test in violation of section 56-5-2953 of the
South Carolina Code (2006); and (2) her refusal of the breath analysis test.[1]  Craig
further asserts the charge should have been dismissed because the twenty-minute
waiting period prior to administration of the breath analysis test was not
videotaped in accordance with sections 56-5-2950 and 56-5-2953 of the South
Carolina Code (2006)[2]. 

We affirm
pursuant to Rule 220(b)(2), SCACR, and the following authorities:  S.C. Code
Ann. § 56-5-2953(B) (2006) (stating that failure by the arresting officer
"to produce" a videotape is not a ground alone for dismissal of a DUI
charge if the arresting officer submits a sworn affidavit certifying that the
video equipment was in an inoperable condition and that reasonable efforts have
been made to maintain the equipment in an operable condition);  State v.
Dicapua, 373 S.C. 452, 457, 646 S.E.2d 150, 153 (Ct. App. 2007) (Stilwell,
J., concurring) ("The flaws in the videotape go to the weight of the
evidence and not to its admissibility."); State v. Salisbury, 330
S.C. 250, 269, 498 S.E.2d 655, 665 (Ct. App. 1998) (ruling the conflict in
testimony regarding the administration of the breathalyzer test went to the
weight of the evidence as opposed to its admissibility); State v. Degnan, 305 S.C.
369, 371, 409 S.E.2d 346, 348 (1991) (holding the administration of a
breathalyzer test is not a critical stage at which an accused is entitled to
counsel); Betterman v.
State Dep't of Motor Vehicles, 728 N.W.2d 570, 584 (Neb. 2007) ("An arrested motorist refuses to submit
to a chemical test when the motorist's conduct, demonstrated under the
circumstances confronting the officer requesting the chemical test, justifies a
reasonable person's belief that the motorist understood the officer's request
for a test and manifested a refusal or unwillingness to submit to the requested
test."); State
v. Jansen,
305 S.C. 320, 323, 408 S.E.2d  235, 237 (1991) (finding there was no question
of the validity of the breath test as a result of failing to videotape the
defendant for twenty minutes prior to submitting to the test where no test was
given); 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."); S.C. Code Ann. § 56-5-2953 (A)(2)(d) (2006) (requiring the
videotaping of the twenty minute pre-test waiting period "if the arresting
offer administers the breath test . . ."). 

AFFIRMED.

WILLIAMS,
PIEPER, and LOCKEMY, JJ., concur.

[1] As an
additional basis to suppress the breath test, Craig argues that she was never
offered a breath test.  The trial court did not rule upon this issue, thus it
is not preserved for review.   State v. Oglesby, 384 S.C.
289, 293, 681 S.E.2d 620, 622 (Ct. App. 2009) ("In order
for an issue to be preserved for appellate review, it must have been raised to
and ruled upon by the trial [court].  Issues not raised and ruled upon in the
trial court will not be considered on appeal.") (internal quotation
omitted).

[2]  These sections
of the South Carolina Code were in effect at the time of Craig’s arrest and
bench trial.  Section 56-5-2953 was subsequently amended by 2008 Act No. 201, §
11, effective February 10, 2009.  The 2008 amendment rewrote subsections (1)
and (2) and substituted "video recording" for "videotape."  See S.C. Code Ann. 56-5-2953 (Supp. 2008). Additionally, section
56-5-2950 was amended by 2008 Act No. 201, § 9, effective February 10, 2009. 
The 2008 amendment rewrote this section and redesignated the subsections.  See S.C. Code Ann. § 56-5-2950 (Supp. 2008).