Heard: November 5, 2013.
Appeal from Spartanburg County. Appellate Case No. 2011-201206. Roger L. Couch, Circuit Court Judge.
Attorney General Alan McCrory Wilson and Assistant Attorney General William M. Blitch, Jr., both of Columbia, and Solicitor Barry Joe Barnette, of Spartanburg, for Petitioner.
Appellate Defender LaNelle Cantey DuRant, of Columbia, for Respondent.
JUSTICE PLEICONES. HEARN and BEATTY, JJ., concur. TOAL, C.J., dissenting in a separate opinion in which KITTREDGE, J., concurs.
[409 S.C. 476] ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
The Court granted the State's petition for a writ of certiorari to review an unpublished Court of Appeals decision that affirmed the circuit court's suppression of respondent's breath test results and video in this prosecution for driving under the influence (DUI). State v. Sawyer,
2011-UP-263, (S.C. Ct. App. filed June 7, 2011). We affirm, holding that a videotape from the breath test site that lacks the audio portion of the reading of Miranda rights and the
informed [409 S.C. 477] consent law did not satisfy the requirements of S.C. Code Ann. § 56-5-2953(A)(2) (2006).
In September 2007, respondent was taken to the Spartanburg County Jail by Deputy Evett, who picked him up following a traffic stop made by Lt. Woodward. Evett, a certified Data Master operator, placed respondent in the " subject test area" which is a room that adjoins the Data Master room. The rooms are separated by a glass panel. The deputy retrieved some forms from the Data Master room and then appeared to read respondent his Miranda rights and the implied consent information. Both respondent and Deputy Evett signed the forms. There are separate audio and video recording devices in both the subject test area and in the breathalyzer room. In this case, the audio device in the subject test area did not function.
Respondent moved to suppress the evidence relating to the breath test site alleging the videotape did not meet the requirements of S.C. Code Ann. § 56-5-2953(A). Section (A) required that a person charged with DUI have his conduct at both the incident site and the breath test site videotaped. Subsection (A)(2) provided:
The videotaping at the breath site:
(a) must be completed within three hours of the person's arrest for a violation of Section 56-5-2930, 56-5-2933, or 56-5-2945 or a probable cause determination that the person violated Section 56-5-2945, unless compliance is not possible because the person needs emergency medical treatment considered necessary by licensed medical personnel;
(b) 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;
[409 S.C. 478] (c) must include the person taking or refusing the breath test and the actions of the breath test operator while conducting the test;
(d) must also 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 ...