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24686 - State v. Millins

Davis Adv. Sh. No. 26
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Appellant,

v.

Patrick Mullins, Respondent.

Appeal From Richland County

Costa M. Pleicones, Judge

Opinion No. 24686

Heard October 15, 1996 - Filed September 2, 1997

AFFIRMED

Beth Caldwell, Acting Assistant Solicitor for the Fifth

Judicial Circuit, of Columbia, for appellant.

Jack B. Swerling, of Columbia, for respondent.

FINNEY, C.J.: Respondent, Patrick Mullins, was arrested for

felony driving under the influence (DUI) after allegedly causing a collision which

killed a motorcycle driver. Respondent was taken from the scene of the accident

to the hospital. A Highway Patrolman invoked the Implied Consent Statute to

obtain a blood sample.1 Respondent refused to give a blood sample because of


1 S.C. Code Ann. § 56-5-2950(a) and (d) (Supp. 1993) provides in part that:

(a) A person who operates a motor vehicle in this State

is considered to have given consent to chemical tests of

his breath, blood, or urine for the purpose of determining

the presence of alcohol or drugs if arrested for an offense

arising out of acts alleged to have been committed while

the person was operating a motor vehicle while under the

influence of alcohol, drugs, or a combination of them . . .

(d) If a person under arrest refuses, upon the request of

a law enforcement officer, to submit to chemical tests as

provided in subsection (a) of this section, none may be

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STATE v. MULLINS

his fear of needles. The deputy coroner arrived at the hospital and directed the

attending physician to have a blood sample taken. A sample was drawn without

respondent's consent. Respondent was subsequently indicted. He filed a motion

to suppress evidence of the blood test. A hearing was held and the trial judge

issued an order suppressing evidence of the blood test. The State appeals the

trial judge's order.

Respondent moved to suppress the blood test evidence pursuant to

the Implied Consent Statute. The State opposed the motion asserting the

deputy coroner acted within State law in securing a blood sample from

respondent to determine if the victim's death was caused by respondent

operating a vehicle while under the influence. The State contends the coroner's

plenary authority to investigate the cause and manner of death2 and statutory

warrant authority3 includes the power to obtain a blood sample from a live

suspect in a felony DUI case. We disagree.

The plain language of S.C. Code Ann. § 17-7-80 does not authorize

the coroner to take blood from a live person to determine the cause and manner

of death in a motor vehicle accident. Further, S.C. Code Ann. § 17-7-170 does

not authorize the coroner to issue a warrant to search and seize an individual

for the purposes of taking blood.

The trial court found the Implied Consent Statute is controlling

under the facts and circumstances of this case; once respondent refused the

blood test, no chemical tests should have been performed. Since the sample was

drawn without his consent, the evidence of the test was properly suppressed.

Accordingly, the trial judge did not err in concluding the Implied Consent

Statute is controlling and evidence of the blood test is inadmissible.

AFFIRMED.

MOORE, WALLER and BURNETT, JJ., and Acting Associate

Justice George T. Gregory, Jr., concur.


given ....

2 The coroner shall examine the body of any driver and any pedestrian who

dies within four hours of a motor vehicle accident and take or cause to have taken

by a qualified person such blood or other fluids of the victim as are necessary to

a determination of the presence and percentages of alcohol or drugs. S.C. Code

Ann. § 17-7-80 (1985). (Emphasis supplied).

3 "The coroner may issue warrants, summon witnesses and examine before the

jury any person present, whether summoned or not, concerning the death." S.C.

Code Ann. § 17-7-170 (1985).

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