G.
Qualifying the Data Master Operator and Admissibility of Results
S.C. Code Ann. § 56-5-2930, DUI, makes it unlawful for a person to drive a motor vehicle within this State while: (1) under the influence of alcohol to the extent that the person’s faculties to drive are materially and appreciably impaired; (2) under the influence of any other drug or a combination of other drugs or substances which cause impairment to the extent that the person’s faculties to drive are materially and appreciably impaired; or (3) under the combined influence of alcohol and any other drug or drugs or substances which cause impairment to the extent that the person’s faculties to drive are materially and appreciably impaired. S.C. Code Ann. § 56-5-2933, DUI Per Se, makes it unlawful for a person to drive a motor vehicle within this State while his alcohol concentration is ten one-hundredths of one percent or more. An integral part of any trial for DUI or DUI Per Se is the qualification of the breath test machine operator by the court.
The breath test machine operator must be qualified as an expert witness. An expert witness is a person who has some specialized training, education or experience that the court determines would be useful to a layperson jury in consideration of a particular issue in a case. Generally, the court has wide latitude in the qualification of an expert witness. However, the DUI and DUI Per Se statutes do mandate certain training and certification. S.C. Code 56-5-2950.
First, the court will make the initial determination of the qualification of the witness outside the presence of the jury unless the parties have previously stipulated to the witness’ qualifications. The prosecution will first ask questions of the witness to establish his qualification, then defense counsel will be afforded the right of cross-examination on the qualification of the witness. After hearing "both" the prosecution and the defense, the court will make an initial determination about qualifying the witness. However, even if the witness is qualified as an expert and allowed to testify, the jury will be free to accept or reject any testimony of the expert witness and defense counsel is free to attack the witness’ qualifications on cross-examination in the presence of the jury.
Second, the court must also make a preliminary determination that the results are admissible. Most of this analysis hinges on statutory and case law requirements for admissibility of the results. Judicial officers should note that the applicable statutes have been amended and great care must be exercised in applying cases based upon the old statutory provisions.
1. Qualification Process: [see S.C. Code 56-5-2950]
a. Was the breath test administered by a person "trained and certified" by the Department of Public Safety, pursuant to SLED policies?
If so, you may find the witness qualified. [often this is stipulated]
2. Determining Admissibility of Operator's Testimony
As indicated, even upon a finding that a person is qualified to testify as to the results of the breath test, the court must next address the question of admissibility in accordance with case and statutory requirements.
a. Was the breath test administered at the direction of a law enforcement officer who has arrested a person for driving a motor vehicle in this State while under the influence of alcohol / drugs?
b. Prior to taking the test, the defendant was informed in writing that:
1. he does not have to take the test or give the samples but that his privilege to drive must be suspended or denied for at least 90 days if he refuses to submit to the test and that his refusal may be used against him in court;
2. his privilege to drive must be suspended for at least 30 days if he takes the tests or gives the samples and has an alcohol concentration of fifteen one-hundredths of one percent or more;
3. he has the right to have a qualified person of his own choosing conduct additional independent tests at his expense [note - the defendant’s failure to obtain such additional tests is not admissible];
4. he has the right to request an administrative hearing within 30 days of the issuance of the notice of suspension; and
5. he must enroll in an Alcohol and Drug Safety Action Program within 30 days of the issuance of the notice of suspension.
c. Generally, it has been established that the test must be administered at the direction of the arresting officer, but not by the arresting officer. This still hold true unless "the person’s conduct during the twenty-minute pre-test waiting period is videotaped pursuant to Section 56-5-2953(A)(2)(d)." In this event, the test may be administered by the arresting officer.
d. The test was administered in accordance with methods approved by SLED.
e. Pursuant to 56-5-2950(g), prior to the use of the test results in any proceeding or trial, a written report must be given to the person tested indicating the time of the arrest, the time of the test, and the results of the test.
f. The breath test machine was in proper working order at the time of the test.
g. Before the breath test was administered, a ten one-hundredths of one percent simulator test must have been performed and the result must reflect a reading between 0.076 percent and 0.084 percent.
h. The accused was not allowed to put anything in his mouth for 20 minutes prior to the test
The findings in f-h above, along with the administering of the test by a qualified person, are referred to as the foundational requirements of State v. Parker, 245 S.E.2d 904 (1978). That case requires that a certain foundation be laid prior to admissibility of the tests results. However, State v. Huntley, 349 S.E.1, 562 S.E.2nd. 472(2002), may suggest a different approach. The court in Huntley, while addressing the proper statutory language to be applied as a result of a change made by the Code Commissioner, went on to suggest that the failure to use the statutorily mandated simulator test range would go to the weight, not the admissibility, of the test results. In other words, the failure to use the correct test reading on the simulator test is properly addressed on cross examination for the jury to consider. The court indicated that the record showed the different ranges would make no difference as to whether the machine was working properly. This approach appears to be a shift from an admissibility standard, as seen in Parker, to a "weight of the evidence" standard, as seen in Huntley, for some factors depending on the record established.
a. DRIVING UNDER THE INFLUENCE
[FOR CASES AFTER JUNE 29, 1998]
I have indicated to you that the defendant is charged with the offense known in law as Driving Under the Influence. South Carolina Law, Section 56-5-2930 states:
It is unlawful for a person to drive a motor vehicle within this state while under the:
___1. influence of alcohol to the extent that the person's faculties to drive are materially and appreciably impaired;
___2. Influence of any other drug or a combination of other drugs or substances which cause impairment to the extent that the person's faculties to drive are materially and appreciably impaired; or
___3. combined influence of alcohol and any other drug or drugs, or substances which cause impairment to the extent that the person's faculties to drive are materially and appreciably impaired.
To constitute a violation of this law the State must prove, beyond a reasonable doubt, the elements of this offense:
First: That in the County and State [ ___or municipality] at the time and place alleged in the charging document, the defendant was driving a motor vehicle;
_____The word "drive" requires the vehicle to be in motion in order to meet this element of the offense. This requirement may be met by showing through direct or circumstantial evidence that the defendant had placed his vehicle in motion while under the influence of alcohol [drugs or a combination thereof];
and
Second: That at the time and place alleged in the charging document the defendant was under the influence of alcohol [drugs or a combination thereof], such that the defendant's faculties to drive were materially and appreciably impaired.
_____ [If needed in drug case] For purposes of this section, "drug" means illicit or licit drug, a combination of licit or illicit drugs, a combination of alcohol and an illicit drug, or a combination of alcohol and a licit drug.
Now, what is under the influence? It is not necessary to show that the defendant was in a helpless condition or that the defendant was dead drunk or even so drunk that the defendant could not walk without staggering. On the other hand, proof that the defendant had, at some time previous to the occasion in question partaken in some degree of alcohol [drugs or a combination thereof], is not sufficient in itself to place one under the influence. A person is not under the influence simply because that person consumes some alcohol [drugs or a combination thereof] and drives a vehicle.
A person is under the influence when the person has ingested alcohol [drugs or a combination thereof] such that the person's faculties to drive are materially and appreciably impaired. The person must be under the influence so as to cause the person to lose normal control of the person's mental or physical faculties, either one or both, to such an extent that there is a material and appreciable impairment of either or both of these faculties. A person violates the statute by operating a motor vehicle where he has partaken of any alcohol [drugs or a combination thereof] to the extent that he cannot drive a motor vehicle with reasonable care, or cannot drive as a prudent driver would operate a vehicle. One who drives [or operates] a vehicle when that person's mental or physical faculties have been thus impaired is considered to be driving while under the influence.
_____Omit if NO B/A TEST ---- Chemical Test Inferences
In a prosecution for the violation of the law [Section 56-5-2930] pertaining to driving a vehicle under the influence of alcohol [drugs or a combination of them], the alcohol concentration at the time of the test, as shown by chemical analysis of the defendant's breath, or other body fluids, gives rise to the following statutory inferences:
(1) If the alcohol concentration was at that time five one-hundredths of one percent or less, it is conclusively presumed that the person was not under the influence of alcohol.
(2) If the alcohol concentration was at that time in excess of five one-hundredths of one percent but less than eight one-hundredths of one percent, this fact does not give rise to any inference that the person was or was not under the influence of alcohol, but that fact may be considered with other evidence in determining the guilt or innocence of the person.
(3) If the alcohol concentration was at that time eight one-hundredths of one percent or more, it may be inferred that the defendant was under the influence of alcohol.
The results of any breath analysis test were submitted to you for your consideration. You are not required to accept or believe the results of the test. Any inference created by law which I have just read to you is an inference only. This inference is simply an evidentiary fact to be taken into consideration by you, the jury, along with other evidence in the case, and to be given such weight as the jury determines it should receive when considered with all of the evidence in the case.
____[use if needed] AFFIRMATIVE ASSISTANCE
South Carolina Law [56-5-2950] provides that:
The person tested or giving samples for testing may have a qualified person of his own choosing conduct additional tests at his expense and must be notified in writing of that right... The arresting officer must provide affirmative assistance to the person to contact a qualified person to conduct and obtain additional tests.
The person tested or giving samples for testing may have a backup test. If a person tested requests a blood test, the arresting officer is required to provide affirmative assistance promptly in obtaining a blood test. Affirmative assistance, at a minimum, includes providing transportation for the person to the nearest medical facility which provides blood tests to determine a person's alcohol concentration. The initiative rests with the person who has been charged with driving under the influence and not with the arresting officer. The arresting officer need only provide affirmative assistance to the person if there is a request for assistance to conduct additional tests.
If you find that the arresting officer did not provide affirmative assistance to the defendant as I have described that duty to you as required by statute, then the results of any breathalyzer test given to the defendant shall be disregarded and not afforded any evidentiary weight or value. If you find that the arresting officer did provide affirmative assistance to the defendant to conduct additional tests at the defendant's expense and did take the defendant to a qualified person for conducting such additional tests, OR that the defendant did not make a request after being notified of such right or that the defendant waived such right, then you may accord any breathalyzer results such evidentiary weight and value as you determine taking into consideration the statutory provisions in regard to chemical analysis that I have previously charged to you and my charge pertaining to such provisions.
In regard to any waiver of this right, the person must know of such right and then knowingly and voluntarily relinquish or give up such right.
_____ [Optional] Even where it has been shown that affirmative assistance was provided by the arresting officer to the person being tested, if this assistance was subsequently negated by acts of law enforcement personnel, then, in that event, the breathalyzer test result cannot be considered by you, the jury.
Breathalyzer Foundation: State v. Parker 2455 E.2d.904 (1978)
Checklist for Judge
Prima Facie -
(1) Machine was in proper working order at time of test,
(2) Correct chemicals were used,
(3) Accused not allowed to put anything in mouth for 20 minutes prior to test,
(4) Test administered by qualified person in proper manner.
(5) Advised of rights concerning breathalyzer.
Notes:
The State has now moved to the Datamaster machine. Based on an opinion of the Supreme Court, it appears that Parker is still applicable. See, State v. Huntley, 349 S.C. 1, 562 S.E.2d 472 (S.C. 2002). However, while Parker required the proper foundation to be met prior to admissibility of the test results, Huntley suggests that may not always be the case. Huntley now opens the door to whether, based on the record established, the results may be admitted and that some foundational problems may be questions of the weight of the evidence as opposed to the admissibility of the evidence.
On another note - one problem to be watched is that is has been asserted that the Datamaster does not use chemicals to actually test breath for the presence of alcohol. Instead, the machine utilizes principles of infrared absorption.
____[use if needed] REFUSAL OF BREATHALYZER TEST
A person may refuse to take the breath-alcohol test when it is offered to that person under lawful conditions. It is the right of the person to so refuse; but is also the right of the state to prove to you, through proper testimony, that the person did refuse. You may give whatever weight you wish to any refusal [ ___if you find such refusal to exist], in your deliberations as to the defendant's innocence or guilt, keeping in mind that a defendant is never required to produce evidence or prove innocence; rather, the burden always remains with the State to prove a defendant's guilt beyond a reasonable doubt.
______Now, although a person may refuse to take the breathalyzer test, if a person does refuse, then that person's driver's license will be suspended for a period of ninety days; this suspension will occur even if the person is not convicted at trial.
___[use if requested] HGN test
Now, a Horizontal Gaze Nystagmus (HGN) test involves watching a person's eyeballs when an object is gradually moved out of the suspect's vision to detect involuntary movement of the eyeball. This testing procedure is not conclusive proof of driving under the influence or determinative of a specific degree of blood alcohol content, but rather is simply one piece of evidence to be given whatever consideration you desire along with all the other evidence in the case in determining the guilt or innocence of the defendant.
State v. Sullivan, 310 S.C. 311, 426 S.E.2d 766 (1993)
SUGGESTED ADDITIONAL CHARGE FOR DRIVING WITH AN UNLAWFUL ALCOHOL CONCENTRATION
(DUI PER SE) - § 56-5-2933
The defendant is charged with driving with an unlawful alcohol concentration. The State must prove that the defendant was driving a motor vehicle in this State with a blood alcohol concentration of eight one-hundredths of one percent or more.