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2004-UP-658 - 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Unpublished Opinion No. 2004-UP-658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.