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2011-UP-263 - State v. Sawyer

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, Appellant,

v.

Phillip Wesley Sawyer, Respondent.


Appeal From Spartanburg County
Roger L. Couch, Circuit Court Judge


Unpublished Opinion No. 2011-UP-263
Heard March 10, 2011 – Filed June 7, 2011 


AFFIRMED


Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General William M. Blitch, Jr., all of Columbia; Solicitor Barry Joe Barnette, of Spartanburg, Appellant.

Assistant Appellate Defender LaNelle Durant, of Columbia, for Respondent.

PER CURIAM:  The State contends the circuit court erred in suppressing the videotape, evidence, and breath test results produced at the breath test site following Phillip Sawyer's (Sawyer) arrest for driving under the influence.  Despite the State's failure to record the audio portion of Sawyer's breath test pursuant to section 56-5-2953 of the South Carolina Code (2006),[1] the State claims any deficiencies in the recording went to the weight of the evidence and not its admissibility. 

We affirm pursuant to Rule 220(b)(1), SCACR, and the following authorities: S.C. Code Ann. § 56-5-2953(A) (2006) ("A person who [commits a DUI] must have his conduct at the incident site and the breath test site videotaped. . . . The videotaping at the breath site[] . . . 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[] . . .); S.C. Code Ann. § 56-5-2953(B) (2006) (stating noncompliance with subsection (A)(1) does not automatically require the dismissal of a DUI if the officer submits a sworn affidavit certifying: (1) the videotape equipment was inoperable and reasonable efforts were made to maintain the equipment; or (2) "it was physically impossible to produce the videotape because the person needed emergency medical treatment"; or (3) "exigent circumstances existed," and providing "[n]othing in this section prohibits the court from considering any other valid reason for the failure to produce the videotape based upon the totality of the circumstances; nor do the provisions of this section prohibit the person from offering evidence relating to the arresting law enforcement officer's failure to produce the videotape"); City of Rock Hill v. Suchenski, 374 S.C. 12, 15, 646 S.E.2d 879, 880 (2007) (stating in criminal cases, the appellate court reviews errors of law only; therefore, this court's scope of review is limited to correcting the circuit court's errors of law).

AFFIRMED.

WILLIAMS, GEATHERS, and LOCKEMY, JJ., concur.


[1] Because Sawyer was charged in 2007, prior to the 2009 amendment of this section, we apply the language of the pre-amended statute.