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State v. Huntley3/11/2002
ol may be achieved. The breathalyzer operator, by pumping room air through the simulator solution, is able to determine whether the breathalyzer machine is functioning properly. For instance, if the simulator solution contains.10 of one percent alcohol, room air pumped through the simulator will result in a corresponding reading on the breathalyzer machine. State v. Parker, 271 S.C. 159, 162, 245 S.E.2d 904, 905 (1978) (emphasis added); see 2 Richard E. Erwin Defense of Drunk Driving Cases § 18.04 (2001) (simulator test provides a known quantity of alcohol to the testing device to determine the capability of the device to properly analyze a sample at the time of the subject test); see also State v. Squires, 311 S.C. 11, 426 S.E.2d 738 (1992) (public purpose behind implied consent law is to facilitate compilation of reliable evidence in drunk driving prosecutions).
The alcohol level in the simulator test is used to determine the reliability of the breathalyzer machine's test results; it neither calibrates the breathalyzer machine nor affects the capability of the machine to properly measure the subject's blood-alcohol level. See State v. Parker, supra. Accordingly, as far as reliability is concerned, it is irrelevant whether the simulator test is run using an alcohol level of.10 or.08 percent. What is relevant is that the machine accurately measures the percentage of alcohol in the simulator test solution so that it will, likewise, accurately measure the percentage of alcohol in the subject's breath.
Even if the breathalyzer operator did not use the simulator test solution at the alcohol concentration required by Act 434, Huntley was not prejudiced. There is no question the breathalyzer machine was operating properly and its results were reliable. Consequently, the trial judge erred by excluding Huntley's breathalyzer test results. State v. Chandler, 267 S.C. 138, 143, 226 S.E.2d 553, 555 (1976) (" xclusion of evidence should be limited to violations of constitutional rights and not to statutory violations, at least where the [defendant] cannot demonstrate prejudice at trial resulting from the failure to follow statutory procedures." ). Evidence the simulator test was not run in conformity with Act 434 goes to the weight, not the admissibility, of Huntley's breathalyzer results.
REVERSED.
TOAL, C.J., MOORE and WALLER, JJ., concur. PLEICONES, J., dissenting in a separate opinion.
JUSTICE PLEICONES: I respectfully dissent. I agree with the majority that the original version of Act 434 is applicable to Huntley's case. Unlike the majority, however, I believe that the failure to comply with the clear and unambiguous statutory language mandating a simulator test be run using "an eight one-hundredths of one percent" alcohol solution bars the use of the breath test results at trial. State v. Breech, 308 S.C. 356, 417 S.E.2d 873 (1992)(DUI statute strictly construed in favor of defendant).
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