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CITY OF CAYCE v. GRAVES3/31/1983
March 31, 1983.
Respondent J. Wilton Graves was convicted of driving under the influence of intoxicants. He appealed his conviction to the circuit court on the ground that cumulative references to his status as a legislator made a fair trial impossible. The circuit court set aside the conviction, and the City of Cayce appeals. We affirm.
After respondent was arrested, a state highway patrolman was summoned to drive respondent to his home.
In closing argument, the prosecutor stated to the jury:
"... Talk about special treatment. You get locked up
tomorrow night and put in jail and see if the highway
patrol will provide you taxi service home ... Was he ever
locked up? Was he ever put in a cell? Absolutely not.
Special treatment."
Respondent's objection to this argument and prior objections to related testimony were overruled.
Respondent contends the prosecutor was improperly allowed to prejudice the jury by suggesting that because respondent was a legislator, he was accorded special privileges which members of the jury would not have received had they been in respondent's predicament.
We have repeatedly held that while a prosecutor should prosecute vigorously, his arguments must be carefully tailored to avoid appealing to a juror's personal bias or arousing his passion or prejudice. State v. Sloan, S.C. 298 S.E.2d 92 (1982); State v. Linder, 276 S.C. 304, 278 S.E.2d 335 (1981).
We hold that the city recorder erred in admitting evidence of the highway patrol's treatment of respondent. The evidence and argument were potentially prejudicial and wholly irrelevant to whether respondent was
We affirm the circuit court's order remanding the case for a new trial. Appellant also raised an issue relating to the admission of a breathalyzer test. Because the issue may arise again on trial, we address it to provide guidance to the trial court.
The circuit court properly dismissed respondent's technical exception to breathalyzer evidence. Specifically, respondent contended that unauthorized equipment was used to establish his blood alcohol content as .19%, considerably above the figure of .10% which supports a statutory presumption of intoxication. Section 56-5-2930, 1976 Code of Laws, as amended. Breathalyzer equipment must be approved for use by the South Carolina Law Enforcement Division (SLED) under Section 56-5-2950(a), 1976 Code of Laws, as amended, and Rule 73-2, Rules and Regulations of SLED. Pursuant to these requirements, SLED approved various models of breath testing devices manufactured by Stephenson Corporation, Red Bank, New Jersey. The Breathalyzer employed in this case was manufactured by Smith and Wesson, but the testimony
Affirmed.
LITTLEJOHN, GREGORY and HARWELL, JJ., concur.
LEWIS, C.J., dissents and concurs.
The City of Cayce appeals from a ruling of the circuit court granting a new trial to the respondent, the Honorable Wilton Graves. While serving as a member of the South Carolina General Assembly, the respondent was stopped by city officers in Cayce, charged with operating a motor vehicle while under the influence of intoxicants, and subsequently convicted by a jury in the city recorder's court. The conviction was appealed to the circuit court and was set aside. I would reverse and reinstate the conviction.
In appealing to the circuit court, respondent raised five issues: (1) improper admission of breathalyzer evidence; (2) failure to suppress his arrest which he deemed in violation of Article 3, Section 14, South Carolina Constitution, granting legislative immunity; (3) improper admission of
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