In The Court of Appeals

The State, Appellant,


Jonathan Bass, Respondent.

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

Unpublished Opinion No. 2004-UP-541
Heard October 12, 2004 – Filed October 26, 2004


Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Deborah R. J. Shupe, all of Columbia; and Solicitor Thomas E. Pope, of York, for Appellant.

Christopher A. Wellborn, of Rock Hill, for Respondent.

PER CURIAM:  Jonathan Bass was arrested for driving under the influence.  At a pre-trial hearing, the trial judge suppressed the results of a breath analysis test administered to Bass following his arrest.  The State appeals this evidentiary exclusion, arguing the trial judge erred in finding the test’s suppression was statutorily mandated.  We reverse and remand.


The facts of this case are undisputed.  In August 2001, Jonathan Bass was arrested for driving under the influence.  Once at the police station, the arresting officer advised Bass of his implied consent rights and offered him a breath test to gauge his breath alcohol concentration.  During the statutorily mandated videotaped pre-test waiting period, Bass requested to speak to his attorney.  Since there was no telephone in the breath analysis room, the arresting officer escorted Bass out of the room and off camera to make the phone call.  Bass and the officer returned to the testing room approximately eleven minutes later.  The officer testified he remained in close proximity to Bass the entire time they were off camera and at no time did Bass place a foreign substance or object into his mouth.  At the conclusion of the twenty-minute period (including the time both were absent from the room and off camera), the breath analysis test was conducted on video by the arresting officer.   Bass registered a .23 breath alcohol concentration.  

At a pre-trial hearing, Bass moved to suppress the results of the breath analysis test.  Finding that the arresting officer did not follow the statutory requirements applicable to administering the test, specifically that the test subject’s conduct during the twenty-minute waiting period be videotaped, the trial judge found the test results inadmissible.  This appeal followed.


The trial judge has considerable discretion in ruling on the admissibility of evidence.  State v. Sheldon, 344 S.C. 340, 342, 543 S.E.2d 585, 585-86 (Ct. App. 2001).  On appeal, the trial court’s ruling will not be disturbed absent a prejudicial abuse of discretion amounting to an error of law.  Id.; see also  State v. Smicklevich, 268 S.C. 411, 415, 234 S.E.2d 230, 232 (1977).


The State contends South Carolina's implied consent statute does not mandate automatic exclusion of a breath test's results when the pre-test waiting period is not videotaped in its entirety.  We agree.

By operating a motor vehicle in this state, one automatically consents to searches of his breath, blood, and urine for the presence of alcohol or drugs if arrested for an offense arising from the alleged influence of such while driving.  S.C. Code Ann. § 56-5-2950(a) (Supp. 2003).  This “implied consent” to be searched is circumscribed by several restrictions and safeguards incorporated into the framework of the implied consent statute.  For instance, one may still refuse to take the tests at the sufferance of a penalty (suspension of his driving privileges for at least ninety days), and must be advised of this right of refusal before any test is given.  S.C. Code Ann. § 56-5-2950(a)(1) (Supp. 2003).  One may also request an additional independent test performed by a person of his own choosing and has a right to “affirmative assistance” from the police in obtaining such a test.  S.C. Code Ann. § 56-5-2950(a) (Supp. 2003).  The authorities must also offer a person suspected of driving under the influence the least intrusive of the three tests, a breath analysis test, before further tests are ordered (unless a breath test is medically unfeasible or there is reasonable grounds to suspect drug use other than alcohol).  Id. 

In addition to these statutory rights, the implied consent statute requires that a twenty-minute pre-test waiting period be videotaped “pursuant to Section 56-5-2953(A)(2)(d)” when the arresting officer is administering a breath test.  S.C. Code Ann. § 56-5-2950(a) (Supp. 2003).  Section 56-5-2953(A)(2) reads:

[t]he videotaping at the breath site: . . . (d) must . . . include the person’s conduct during the required twenty-minute pre-test waiting period, unless the officer submits a sworn affidavit certifying that it was physically impossible to videotape this waiting period.  However, if the arresting officer administers the breath test, the person’s conduct during the twenty-minute pre-test waiting period must be videotaped.

S.C. Code Ann. § 56-5-2953(A)(2) (Supp. 2003) (emphasis added).  Because the arresting officer performed the breath test on Bass, the videotaping of the pre-test waiting period was clearly required by the implied consent statute in the case at bar.  By failing to videotape the entire twenty minutes, the officer violated a mandate of the implied consent statute.   

Having concluded that the officer’s administration of the breath test violated section 56-5-2950, we next consider whether this violation automatically renders the test results inadmissible.  We conclude that it does not.

The failure of law enforcement to strictly adhere to certain testing guidelines found in the implied consent statute often results in the suppression of the test results at trial.  See e.g. State v. Mullins, 331 S.C. 501, 503, 489 S.E.2d 923, 924 (1997); State v. Pipkin, 294 S.C. 336, 338, 364 S.E.2d 464, 465 (1988); State v. Kimbrell, 326 S.C. 344, 349, 481 S.E.2d 456, 459 (Ct. App. 1997).  However, a violation of the implied consent statute does not make suppression of the test results a foregone conclusion.  See State v. Hunley, 349 S.C. 1, 6, 562 S.E.2d 472, 474 (2002) (finding the trial court erred in automatically suppressing a breath test’s results when no prejudice to the defendant was shown as a result of the implied consent statute’s violation).  It is well established that “exclusion of evidence should be limited to violations of constitutional rights and not to statutory violations, at least where the appellant cannot demonstrate prejudice at trial resulting from the failure to follow statutory procedure.”  State v. Chandler, 267 S.C. 138, 143, 226 S.E.2d 553, 555 (1976). 

In the case before us, the trial court found that the failure to videotape the entire twenty-minute waiting period automatically mandated the suppression of the breath test.  The trial court reached this conclusion without any findings on whether Bass was prejudiced by the statutory violation.  When a trial court suppresses evidence based on a statutory violation without making any findings on whether the violation prejudiced the moving party, it has made an error of law. The proper action for this court, therefore, is to reverse the suppression order and remand to the trial court for the purpose of making such findings.  Sheldon, 344 S.C. at 343-44, 543 S.E.2d at 586.