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State v. Huntley3/11/2002
Appeal From Lancaster County Kenneth G. Goode, Circuit Court Judge
Heard November 27, 2001
REVERSED
On May 27, 2000, Respondent James Eugene Huntley (Huntley) was arrested for driving under the influence . After the jury was sworn, Huntley moved to suppress the results of his breathalyzer test, arguing the test operator used a different simulator solution test level than that set forth by law. The trial judge agreed and suppressed Huntley's breathalyzer results. The State appeals.
ISSUE
Did the trial judge err by suppressing Huntley's breathalyzer results?
ANALYSIS
In 1998, the General Assembly passed Act No. 434 (Act 434) which made various changes to provisions of the driving under the influence law. One change amended South Carolina Code Ann. § 56-5-2950(a) to specify that before a breath test is administered, "an eight one-hundredths of one percent simulator test must be performed and the result must reflect a reading between 0.076 percent and 0.084 percent." Previously, § 56-5-2950(a) did not require a simulator test. On June 29, 1998, the Governor approved Act 434. Subsequently, Act 434 was enrolled with the Office of the Secretary of State.
Months later, at the behest of the then Clerk of the Senate, the Code Commissioner amended Act 434. In relevant part, the amended version provides: "before the breath test is administered, a ten one-hundredths of one percent simulator test must be performed and the result must reflect a reading between 0.095 percent and 0.105 percent." S.C. Code Ann. § 56-5-2950(a) (Supp. 1999).
The parties disagree which version of Act 434 is applicable for purposes of Huntley's prosecution. The State argues the amended version of Act 434 applies; Huntley contends the original version of Act 434 applies. We agree with Huntley.
One duty of the Code Commissioner is to " ompile the public statutes of the State." S.C. Code Ann. § 2-13-60(1) (1986). Part of this duty includes preparing indices to the statutes, noting court decisions under appropriate statutory sections, and adding references to new acts and joint resolutions. S.C. Code Ann. § 2-13-60(2), (3), and (6). The Code Commissioner is only authorized to " orrect typographical and clerical errors." S.C. Code Ann. § 2-13-60(10). He is not authorized to make any other changes by way of addition or deletion to the existing laws.
In amending Act 434, the Code Commissioner changed the simulator solution test level and its corresponding range of accuracy. In addition, the Code Commissioner increased the alcohol inference level throughout § 56-5-2950(b), increased the alcoholic concentration level at which a person must enroll in a safety program (§ 56-5-2951(B)), and increased the level of alcohol concentration at which an insurance penalty may be imposed (§ 56-1-288(U)). The Code Commissioner acted outside his statutory authority in making these substantive changes. Accordingly, we conclude the original version of Act 434 is the law applicable to Huntley's prosecution.
Even though the trial judge properly concluded the original version of Act 434 applied, we nonetheless conclude the trial judge erred by suppressing Huntley's breathalyzer results.
The purpose of a simulator test is to ensure the breathalyzer machine produces an accurate, reliable breath-alcohol reading, and ultimately, an accurate blood-alcohol analysis.
The alcoholic breath simulator is a part of the breathalyzer devised for the purpose of providing a standard alcohol-air mixture. By mixing an amount of absolute alcohol with distilled water, a desired concentration of breath alcoh
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