 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
S.C. Dep't of Motor Vehicles v. Nelson5/23/2005
Opinion
Submitted May 1, 2005
REVERSED
Danny Joe Nelson was arrested for driving under the influence . Nelson refused to consent to a breath test offered nearly five hours after his arrest. As a result, the South Carolina Department of Motor Vehicles (the Department), formerly the Department of Public Safety, suspended Nelson's driver's license. The circuit court reversed, finding the Department failed to videotape Nelson's breath test within three hours of arrest as required by law. The Department appeals the circuit court's decision. We reverse.
FACTUAL/PROCEDURAL BACKGROUND
On December 10, 2002, Deputy Jason Wilson of the Spartanburg County Sheriff's Department was on routine patrol in Duncan, South Carolina. He observed a vehicle driving erratically and crossing back and forth over the center line. The car, which Nelson was driving, turned left onto Berry Shoals Road and attempted to make a U-turn. Deputy Wilson stopped the vehicle. He found that Nelson's speech was slurred and he smelled of alcohol. Nelson admitted he had been drinking. Deputy Wilson asked Nelson to get out of the car, and he conducted several field sobriety tests, which Nelson failed.
Nelson was placed under arrest at 8:36 p.m. for driving under the influence . Deputy Wilson read Nelson his Miranda rights and his section 56-5-2934 advisement and placed him in the patrol car. Officer Piggins arrived at the scene at that time. Nelson began complaining of asthma and asked for his inhaler. Deputy Wilson was unable to locate an inhaler in Nelson's car, but he did find an open bottle of vodka and four other open bottles of liquor. An ambulance was called to the scene; the emergency medical technician checked Nelson and reported that he was fine.
Deputy Wilson took Nelson to the Detention Center, but had to leave him with Officer Piggins because Wilson's house was on fire. While Deputy Wilson was gone, Nelson again complained of asthma and asked to be taken to the hospital. Officer Piggins complied with Nelson's request.
When they returned to the Detention Center, Nelson was offered a DataMaster test. Officer K.D. Green advised Nelson of his implied consent rights both orally and in writing and told Nelson that the testing was being videotaped. The machine was working properly, and Officer Green followed procedure in preparing to administer the test. At 1:20 a.m., Nelson refused to give a sample.
Deputy Wilson returned to the Detention Center and found Nelson again complaining of asthma and requesting a blood test. Deputy Wilson transported Nelson to the hospital a second time, but the hospital refused to conduct a blood test because Nelson did not have cash to pay for it.
The Department suspended Nelson's driver's license. Nelson requested an administrative hearing pursuant to S.C. Code Ann. section 56-5-2951(B) (Supp. 2002). The hearing officer upheld the suspension in accordance with S.C. Code Ann. section 56-5-2951 (Supp. 2002) for failure to consent to drug and alcohol testing. The circuit court reversed, concluding the breath test was not offered within three hours of arrest as required by section 56-5-2953 (Supp. 2002).
STANDARD OF REVIEW
The South Carolina Administrative Procedures Act, S.C. Code Ann. sections 1-23-310 to -400 (2005), establishes the "substantial evidence" rule as the standard for judicial review of a decision of an administrative agency. Lark v. Bi-Lo, Inc., 276 S.C. 130, 135, 276 S.E.2d 304, 306-07 (1981). Section 1-23-380(A)(6) of the South Carolina Code (2005) provides as follows:
The court shall not substitute its judgment for that of
Page 1 2 3 4 5 6 South Carolina DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|