Davis Adv. Sh. No. XX
S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The City of Columbia, Respondent
v.
James H. Ervin, III, Petitioner
ON WRIT OF CERTIORARI TO THE COURT OF
APPEALS
Appeal From Richland County
J. Ernest Kinard, Jr., Judge
Opinion No. 24786
Heard March 18, 1998 - Filed May 11, 1998
AFFIRMED AS MODIFIED
H. Jackson Gregory, of Gregory & Gregory, of
Columbia, for petitioner.
Thomas E. Ellenburg, of Columbia, for respondent.
BURNETT, A.J.: Petitioner James H. Ervin, III, was convicted
in Respondent the City of Columbia's (City's) municipal court of first offense
driving under the influence (DUI). The circuit court and the Court of
Appeals affirmed. The City of Columbia v. Ervin, 325 S.C. 644, 482 S.E.2d
781 (Ct. App. 1997). The Court granted Ervin a writ of certiorari to review
the decision of the Court of Appeals.
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CITY OF COLUMBIA v. ERVIN
FACTS
Prior to trial, Ervin moved to quash the arrest warrant, arguing
he had not been given a reasonable opportunity to obtain an independent
blood test. The parties stipulated Ervin had refused to take the datamaster
test after his arrest and specifically stated he wanted to be taken to Richland
Memorial Hospital (RAM) for an independent blood test. The arresting
officer transported petitioner to RMH. A nurse at the hospital informed
Ervin and the officer it was RMH's policy to perform blood tests only at the
request of the arresting officer. The arresting officer did not request the
blood test.1
During the motion hearing, Ervin argued "for the officer to take
him to the hospital and not request the blood test when the whole purpose of
(sic) trip down there was to get one, then he just put the defendant in a
Catch 22 ... The officer prohibited him from being able to get that
independent test . . . ." Although Ervin presented no evidence the arresting
officer knew RMH's policy, he argued the arresting officer should have
been charged with knowledge of the hospital's policy and, therefore, the
reasonable opportunity" provided by the officer was illusory. Ervin further
maintained the officer denied him a reasonable opportunity to obtain an
independent blood test by refusing to take him to Baptist Medical Center
(BMC) after RMH refused to provide the test.2 The trial judge concluded
the officer had provided Ervin with a reasonable opportunity to obtain an
independent blood test and denied Ervin's motion to quash the arrest
warrant.
During trial, Ervin asked the arresting officer if he had
instructed the nurse at RMH to perform the blood test. The arresting
officer answered negatively. Thereafter, Ervin questioned the officer as to
whether he was aware of RMH's policy regarding blood tests. The trial
judge sustained the City's objection. Ervin did not proffer the arresting
officer's testimony.
1 Police department policy permits an officer to request a blood test if
the defendant is unable to provide a breath sample as a result of injury or
if the defendant is suspected of using narcotics.
2 Trial testimony indicated BMC will perform a blood test at the
suspect's request.
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CITY OF COLUMBIA v. ERVIN
ISSUES
I. Did the Court of Appeals err by ruling the trial judge
properly sustained the City's objection?
II. Did the Court of Appeals err by concluding Ervin had been
provided a reasonable opportunity to obtain an independent
blood test?
III. Did the Court of Appeals err by affirming the denial of
Ervin's motion to suppress the evidence of his refusal to take
the datamaster test?
I.
On appeal to the Court of Appeals, Ervin argued the trial judge
erred by sustaining the City's objection to his question regarding the
arresting officer's knowledge of RMH's blood testing policy. The Court of
Appeals noted "this issue may not have been properly preserved for appeal
because Ervin made no proffer of the excluded testimony," but nonetheless
addressed the merits of Ervin's argument. Id. S.C. at 647, S.E.2d at 783.
The Court of Appeals should not have addressed the merits of
this issue. During his intermediate appeal before the circuit court Ervin
argued, inter alia, the trial judge erred in denying his pretrial motion to
quash the arrest warrant. Ervin did not raise the evidentiary issue to the
circuit court. Graniteville Manufacturing Co. v. Renew, 113 S.C. 171, 102
S.E. 18 (1920)(an issue not raised by exception to an intermediate appellate
court cannot be raised for the first time in the Supreme Court).
Moreover, Ervin failed to proffer the officer's testimony as to
his knowledge of RMH's policy. Accordingly, this issue was not preserved
for appellate review. State v. Cabbagestalk, 281 S.C. 35, 314 S.E.2d 10
(1984)(failure to make an offer of proof precludes consideration of an issue
on appeal); State v. Roper, 274 S.C. 14, 260 S.E.2d 705 (1979)(a reviewing
court may not consider error alleged in the exclusion of testimony unless
the record on appeal shows fairly what the rejected testimony would have
been). We vacate that portion of the Court of Appeals' opinion which
addresses the merits of Ervin's evidentiary issue.
II.
On appeal to the Court of Appeals, Ervin argued the arresting
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CITY OF COLUMBIA v. ERVIN
officer interfered with his attempt to procure an independent blood test by
1) refusing to request the test at RMH and 2) refusing to transport him to
BMC.3 The Court of Appeals concluded the officer provided Ervin with a
reasonable opportunity for an independent blood test where he "made a
breathalyzer test4 available to Ervin on the terms requested by Ervin. We
decline to hold that the Officer was required to do more." State v. Ervin,
supra, S.C. at 649, S.E.2d at 784.
An arresting officer does not have a duty to affirmatively assist
a defendant who refuses to take a breathalyzer test with obtaining
independent tests. Instead, a defendant who refuses to take a breathalyzer
test is only entitled to a "reasonable opportunity" to obtain an independent
blood test.5 State v. Lewis, 266 S.C. 45, 221 S.E.2d 524 (1976). A
reasonable opportunity does not include the affirmative duty to procure a
blood test for a defendant who has not taken a breathalyzer test. "What is
reasonable will, of course, depend on the circumstances of each case." Id.,
S.C. at 48, S.E.2d at 526. In some situations, the provision of a telephone
and telephone book constitutes reasonable opportunity. State v. Sullivan,
310 S.C. 311, 426 S.E.2d 766 (1993); State v. Degnan, 305 S.C. 369, 409
S.E.2d 346 (1991); State v. Lewis, supra.
In State v. Masters, 308 S.C. 433, 418 S.E.2d 552 (1992), the
arresting officer attempted to give the suspect a breathalyzer test at two
different locations; both machines malfunctioned. The officer then agreed
to transport the suspect to the hospital for a blood test. However, on the
way to the hospital, the officer received a call on the police radio and
returned with the suspect to the police station without having obtained the
blood test. The Court determined "under the unique facts such as these,
. . . where the officer affirmatively undertakes to procure a blood test for
the defendant, then the officer terminates that affirmative undertaking
3 Petitioner also argued the arresting officer was required to inform
him of the parameters of a reasonable opportunity. This issue was not
raised to the trial court and is not preserved for review. State v. Johnson,
324 S.C. 38, 476 S.E.2d 681 (1996).
4 We assume the Court of Appeals meant to refer to a blood test.
5 South Carolina Code Ann. 56-5-2950 (Supp. 1997) provides "[t]he
arresting officer shall provide reasonable assistance to the person to contact
a qualified person to conduct additional tests." "The person" has been
interpreted to mean a person who has submitted to a breathalyzer test.
State v. Lewis, 266 S.C. 45, 221 S.E.2d 524 (1976).
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CITY OF COLUMBIA v. ERVIN
without any explanation or excuse, the officer has effectively denied the
defendant the reasonable opportunity to obtain a blood test." Id, S.C. at
435, S.E.2d at 553.
By transporting Ervin to RMH, the arresting officer provided
Ervin with more reasonable assistance than required since Ervin had
refused to take the datamaster test. Nonetheless, unlike the officer in
Masters, the arresting officer did not agree to procure a blood test for
Ervin, but, rather to simply transport Ervin to RMH as Ervin had
requested. Accordingly, the officer was not required to either request the
blood test at RMH or to transport Ervin to BMC. Consequently, we agree
in result with the opinion of the Court of Appeals.
However, we vacate that portion of the Court of Appeals'
opinion which suggests that by complying with the terms of the suspect's
request for an independent blood test, an officer automatically provides a
reasonable opportunity for a test. This is not always the case. For
instance, if Ervin had shown the arresting officer had knowledge of RMH's
policy of refusing blood tests at the request of a suspect, the officer's
transportation of Ervin to the hospital would not have been reasonable.
III.
Ervin argues the Court of Appeals erred in affirming the denial
of his motion to suppress evidence of his refusal to take the datamaster test
because he was not given a reasonable opportunity to obtain an independent
blood test. As noted above, Ervin was given a reasonable opportunity to
obtain a blood test. There was no error in the admission of Ervin's refusal
to take the datamaster test. Moreover, as found by the Court of Appeals, in
light of the overwhelming evidence of his intoxication, Ervin was not
prejudiced by the admission of his refusal to take the datamaster test.6
The decision of the Court of Appeals is AFFIRMED AS
MODIFIED.
FINNEY, C.J., TOAL, MOORE and WALLER, JJ., concur.
6 One police officer testified she observed Ervin disregard a stop sign
then drive his vehicle onto the median while making a right-hand turn.
Officers testified Ervin appeared unsteady, had an odor of alcohol about his
person, and used profanity. A RMH nurse testified Ervin was verbally and
physically abusive to the arresting officer and appeared to be intoxicated.
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