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STATE v. SULLIVAN1/11/1993
Heard May 4, 1992.
Decided Jan. 11, 1993.
The state appeals from a circuit court order which reversed
On November 8, 1989, Trooper Dan Merritt was directing traffic across the damaged Ben Sawyer Bridge when the respondent failed to heed his signal to stop, forcing the trooper to jump from the path of respondent's vehicle. Trooper Merritt yelled for the respondent to stop and the vehicle came to a halt. The trooper smelled a strong odor of alcohol on the respondent's breath and after administering the horizontal gaze nystagmus (HGN) and other field sobriety tests, he arrested the respondent for
On March 15, 1990, the respondent was convicted in magistrate court. The respondent made a posttrial motion for a new trial which the magistrate took under advisement. By letter dated March 29, 1990, the magistrate denied the motion. On April 20, 1990, respondent served notice of intent to appeal, and filed a supplement to his notice on June 5, 1991. The circuit court reversed and remanded the case upon the following grounds:
1. That the respondent had timely objected to evidence
from the HGN test; and the magistrate erred in admitting
such evidence because a) the arresting officer was
not sufficiently trained in the theory and administration
of the scientific/medical test; b) the testimony was highly
speculative; and c) any probative value was far outweighed
by the prejudicial effect of such "pseudo-scientific"
evidence.
2. That the magistrate improperly denied respondent's
motion to suppress evidence of his refusal to submit to
the breathalyzer test based upon the state's failure to
provide reasonable assistance for the respondent to obtain
an independent blood test.
Initially, appellant asserts that the circuit court erred in hearing the case when the appeal from magistrate court was not filed within ten days of the jury verdict. The state relies on S.C. Code Ann. § 18-3-30 (1985), which provides that "the appellant shall, within ten days after sentence, serve notice of appeal upon the magistrate who tried the case, stating the
However, the statutory time for appeal has been enlarged by the following amendment regarding procedure in magistrate court:
No motion for a new trial may be heard unless made
within five days from the rendering of the judgment. The
right of appeal from the judgment exists for twenty-five
days after the refusal of a motion for a new trial.
S.C. Ann. § 22-3-1000 (Supp. 1991).
The state argues that respondent's appeal is from the
The state next asserts that the circuit court erred in considering respondent's supplement to his notice of intent to appeal. The record does not reflect that the appellant objected to the filing of the supplement nor an exception before the circuit court. To preserve an issue for appellate review, an appellant must object at his first opportunity. See State v. Williams, 303 S.C. 410, 401 S.E.2d 168 (1991). Nonetheless, we find that the issue was preserved for appeal by respondent's objection during trial to the introduction of evidence from field sobriety tests.
Seeking to elucidate Exception 14 under "Other Grounds," the respondent filed a supplement to his notice of intent to appeal on June 5, 1991, over one year after the notice was filed, asserting error in the admission of testimony regarding the HGN test. Section 18-3-30 requires that within ten days after sentencing, the notice of appeal shall be served stating the grounds for appeal. Exception 14 of the notice of intent to appeal follow
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