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2004-UP-498 - Gelinas v. Department fo Public Safety
THE STATE OF SOUTH CAROLINA

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

Raymond G. Gelinas,        Appellant,

v.

Department of Public Safety,        Respondent.


Appeal From York County
John C. Hayes, III, Circuit Court Judge


Unpublished Opinion No. 20040UP-498
Submitted September 19, 2004 – Filed October 5, 2004


AFFIRMED


Daniel D. D’Agostino, of York, for Appellant.

Frank L. Valenta, Jr., of Columbia, for Respondent.

PER CURIAM:  The Department of Public Safety suspended Raymond G. Gelinas’ driver’s license after he refused to take an alcohol breath test.  The circuit court affirmed the Department’s administrative hearing officer’s decision sustaining the suspension.  Gelinas appeals and we affirm. [1]  

FACTS AND PROCEDURAL HISTORY

Officer Gilstrap arrested Gelinas for DUI during a traffic stop after he smelled the odor of alcohol on him and Gelinas failed a sobriety test.  At the law enforcement center, Officer Gilstrap advised Gelinas of his implied consent rights and requested he take the Datamaster test.  The officer began setting up the Datamaster when Gelinas told the officer he was not going to take the test.  The test was never administered. [2]  Because of Gelinas’ refusal and pursuant to applicable law, Officer Gilstrap issued a Notice of Suspension suspending Gelinas’ driving privileges. 

On appeal to the circuit court, Gelinas argued the implied consent law permits only a qualified Datamaster operator to offer an alcohol breath test.  He claimed that because Officer Gilstrap was the arresting officer, he could not be qualified as the Datamaster operator until after he videotaped Gelinas’ conduct pursuant to South Carolina Code Ann. sections 56-5-2950(a) and 56-5-2953(A)(2)(d) (Supp. 2003).  All parties agreed no videotaping occurred.  Gelinas therefore contended the officer could not offer him a valid test to refuse, thus invalidating his suspension. 

The circuit court disagreed and upheld Gelinas’ suspension finding “the arresting officer, if certified, is qualified to administer all pre-test processes and procedures including accepting a refusal, right from the start.”  Moreover, the court concluded the question of whether Gelinas was offered a valid test was irrelevant because the precautionary rules governing test procedures are inapplicable if the test is refused.  To support its conclusion, the court relied on State v. Jansen, 305 S.C. 320, 408 S.E.2d 235 (1991), wherein our supreme court held the validity of test methods will not be considered when no test is administered and no test results are offered into evidence.  

STANDARD OF REVIEW

An appeal from a decision of the department of public safety is governed by the Administrative Procedures Act.  Byerly Hosp. v. South Carolina State Health & Human Servs. Fin. Comm’n, 319 S.C. 225, 229, 460 S.E.2d 383, 385 (1995).  Therefore, when reviewing a final decision of the department, the circuit court, sitting as an appellate court, may not substitute its judgment for that of the department as to the weight of the evidence on questions of fact.  S.C. Code Ann. § 1-23-380(A)(6) (Supp. 2003).  The department’s decision will be affirmed unless it is controlled by an error of law or is without evidentiary support.  Mictronics, Inc. v. South Carolina Dep’t of Revenue, 345 S.C. 506, 510, 548 S.E.2d 223, 225 (Ct. App. 2001). 

DISCUSSION

Gelinas contends the circuit court erred in determining he was offered a valid test because the Datamaster operator, who was also the arresting officer, did not observe or videotape him during a twenty-minute pre-test waiting period before offering the test.  He therefore claims his refusal was void for lack of a valid test offer requiring the circuit court to reverse his suspension and reinstate his driving privileges.  We disagree.

South Carolina Code Ann. section 56-5-2950(a) (Supp. 2003) states “[t]he arresting officer may administer the tests if the [arrested] person’s conduct during the twenty-minute pre-test waiting period is videotaped pursuant to Section 56-2-2953(A)(2)(d).”  (Emphasis added.)  Section 56-2-2953(A)(2)(d) also states “if the arresting officer administers the breath test, the person’s conduct during the twenty-minute pre-test waiting period must be videotaped.”  (Emphasis added.) 

The statutes require an arresting officer to videotape a person’s conduct if he administers the Datamaster test, not offers it.  Therefore, Officer Gilstrap did not have to videotape Gelinas or observe the twenty-minute waiting period prior to offering the test and accepting the refusal.  Moreover, the purpose of the videotaping is “to insure that the results of the breathalyzer test if given are accurate and reliable as evidence at trial.”  State v. Jansen, 305 S.C. 320, 322, 408 S.E.2d 235, 237 (1991).  Because Gelinas’ suspension did not depend on the reliability of the test results, he may not challenge Officer Gilstrap’s pre-test qualifications or methods.  See Jansen, 305 S.C. at 322-23, 408 S.E.2d at 237 (holding testing precautions “do not apply to the offer and refusal of a breathalyzer test” and a defendant may not question the validity of test methods when “no test was given, and there were no results offered as evidence by the State”); see also 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.”).  

AFFIRMED.

STILWELL, BEATTY, and SHORT, JJ., concur.


[1]        We decide this case without oral argument pursuant to Rule 215, SCACR.

[2]        At the hearing before the circuit court, Gelinas’ counsel stated Officer Gilstrap entered the time, date “and everything else” into the Datamaster before Gelinas refused to take the test.  Counsel therefore argued testing had already begun and was terminated on Gelinas’ refusal.  However, we find Officer Gilstrap was merely preparing the Datamaster for an anticipated breath test that never occurred.