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STATE v. SMITH1/8/1996
Charlie S. Smith appeals his conviction for driving under the influence (DUI). We reverse based upon the chain of custody of the blood sample introduced into evidence.
I.
Smith argues the trial judge erred in admitting blood analysis evidence where subsequent actions by law enforcement personnel negated any reasonable assistance provided to Smith in obtaining his own blood sample. We disagree.
After Smith was arrested for DUI he refused to submit to a breathalyzer test. Smith requested a blood test and the arresting officer, Trooper Bullard, transported him to the Lexington County Medical Center where two vials of blood were drawn. Both vials were given to Bullard who then transported Smith back to the Lexington County Detention Center for booking. Bullard stated he gave the booking officer Smith's vial which was marked with Smith's name. Smith was standing next to Bullard when this was done. The booking form which lists property of an inmate, however, did not list the vial of blood.
Smith and his wife testified that after Smith was released from jail, they attempted to retrieve his vial of blood. They claimed they called the Detention Center, Lexington County Medical Center, the Highway Department, and SLED, but no
Under the implied consent statute, S.C. Code Ann. § 56-5-2950 (Supp. 1994), any person who operates a motor vehicle in this State gives implied consent to chemical tests of his or her breath, blood, or urine for purposes of determining the presence of alcohol or drugs if the person is arrested for an offense arising from acts alleged to have been committed while under the influence of alcohol, drugs, or a combination of them. The statute provides further:
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 of that right . . . . The failure or
inability of the person tested to obtain additional
tests does not preclude the admission of evidence
relating to the tests or samples taken at the
direction of the law enforcement officer.
The arresting officer shall provide reasonable
assistance to the person to contact a qualified
person to conduct additional tests.
Under this statute, an officer does not have a duty to affirmatively assist persons in obtaining any independent tests when the accused refuses the breathalyzer test. State v. Lewis, 266 S.C. 45, 221 S.E.2d 524 (1976). Lewis only requires a reasonable opportunity to obtain an independent blood test be afforded a person who refuses a breathalyzer test. 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).
In this case, Smith was not entitled to reasonable assistance in obtaining his own blood sample since he refused to submit to a breathalyzer test. Rather, law enforcement only had to provide Smith with a reasonable opportunity to obtain a blood test without affirmative assistance. The officers undertook, however, to provide affirmative assistance even though this was not required.
We agree with the trial judge that this issue is controlled by State v. Wickenhauser, 309 S.C. 377, 423 S.E.2d 344 (1992).
Wickenhauser was arrested for
Wickenhauser was released the next day and received his personal items, which did not include the vial of blood. Wickenhauser signed a receipt and left without inquiring about the blood sample. When he went back to the jail two days later seeking the vial, Wickenhauser was advised by jail personnel they had no record of receiving a blood sample from him and
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