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State v. Hook11/24/2003
Heard October 8, 2003
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
AFFIRMED AS MODIFIED
We granted a writ of certiorari to review the Court of Appeals' decision holding that petitioner/respondent Hook's statement to his probation officer was inadmissible at Hook's trial for driving under the influence (DUI) third offense. We affirm as modified.
FACTS
At trial, the State introduced evidence Hook was involved in an automobile accident in the early morning hours of January 15, 1999. He failed to yield the right of way at an intersection and collided with a Williston city police car. Both Hook and the police officer were taken to the hospital.
Trooper Cruz, who was called to the crash scene, went to the hospital to question both parties. Cruz asked the treating doctor whether he could speak with Hook and the doctor gave his permission. According to Cruz, Hook appeared intoxicated and "somewhat in pain" although Cruz observed no physical injuries. Cruz smelled a strong odor of alcohol on Hook's breath and on his person. When Cruz asked if he had been drinking, Hook replied that he had "consumed alcohol, mainly beer, at 2400 hours which was 12 midnight." The wreck had occurred between 1:30 and 2:30 a.m. Hook denied he had used any illegal drugs. Cruz placed Hook under arrest, read him his Miranda rights and, with permission from the doctor, transported Hook to the detention center for a breathalyzer test which Hook ultimately declined to take. During the next few days, while in jail, Hook began spitting up blood and had to seek further medical attention. He eventually had surgery to remove a ruptured spleen.
Hook testified he drank three beers at home before dinner on the evening before the wreck between 6:00 and 7:30 p.m. He went to bed between 9:00 and 10:00 p.m. but awoke later around 1:00 a.m. and decided to return to his former residence to pick up a television set. On his way, the wreck occurred.
On cross-examination, Hook denied he had used illegal drugs on the evening of the wreck. The State then moved to impeach Hook with a statement he made to his probation officer admitting he had snorted cocaine on the evening before the wreck and that he was impaired at the time the wreck occurred. Hook strenuously objected that the statement was privileged and inadmissible under S.C. Code Ann. § 24-21-290 (Supp. 2002) which provides:
All information and data obtained in the discharge of his official duty by a probation agent is privileged information, is not receivable as evidence in a court, and may not be disclosed directly or indirectly to anyone other than the judge or others entitled under this chapter to receive reports unless ordered by the court or the director.
The trial judge ruled that Hook's statement to his probation officer was admissible for impeachment only.
When cross-examination resumed, Hook testified as follows:
Q: So you did not tell[your probation officer] that you sniffed powder cocaine the night of the accident?
A: No. The night of the accident was - when I went to sleep it was the 14th and, you know, I woke up that night and really, you know, when it's 1:00 or so, I still consider that even though it was actually the 15th, I was still thinking of it as the 14th.
Q: What did you tell[your probation officer]?
A: Um - I told him that I had used powder cocaine a couple of days before the accident.
Q: How about did you tell anyone else about this powder cocaine usage?
A: Um - there was my other probation officer, Judy Brown.
Q: You did not tell Judy
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