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State v. Cuevas6/20/2005
Opinion
Heard May 11, 2005
REVERSED AND REMANDED
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General David A. Spencer, all of Columbia; and Solicitor Harold W. Gowdy, III, of Spartanburg, for Appellant.
Andrew J. Johnston, of Spartanburg, for Respondent.
The State appeals the trial court's suppression of Sergio Cuevas's breath test results. We reverse and remand for trial.
FACTS
On August 18, 2001, Cuevas was the driver of a vehicle involved in a two-car accident, which left his victim with a broken leg. Officers gave Cuevas the implied consent warnings for felony DUI, as required by section 56-5-2945 of the South Carolina Code (Supp. 2004). However, the officers did not advise Cuevas of his right to refuse the breath test.
Cuevas was indicted for driving under the influence resulting in great bodily injury and leaving the scene of an accident in which injury resulted. Cuevas made a pre-trial motion to suppress the results of his breath test. The trial court granted the motion because Cuevas was not afforded the right to refuse the breath test. This appeal followed.
STANDARD OF REVIEW
In criminal cases, an appellate court sits to review errors of law only and is bound by factual findings of the trial court unless they are clearly erroneous. State v. Wilson, 345 S.C. 1, 6, 545 S.E.2d 827, 829 (2001). A trial court's ruling on the admissibility of evidence will not be reversed on appeal absent an abuse of discretion or the commission of legal error that results in prejudice to the defendant. State v. Adams, 354 S.C. 361, 377, 580 S.E.2d 785, 793 (Ct. App. 2003). The appellate court should examine the record to determine whether there is any evidence to support the trial court's ruling. If there is any evidence in the record, the appellate court should affirm. Wilson, 345 S.C. at 6, 545 S.E.2d at 829.
LAW/ANALYSIS
I.
The State claims the trial court erred in suppressing Cuevas's breath test results because, under section 56-5-2946 of the South Carolina Code (Supp. 2004), Cuevas does not have a right to refuse a breath test when charged with felony DUI. We agree.
Section 56-5-2950 (a) of the South Carolina Code (Supp. 2004), originally enacted in 1993, but rewritten by Act No. 434, 1998 S.C. Acts § 7 and amended most recently in August 2003, provides a person suspected of driving under the influence with the right to refuse "chemical tests of his breath, blood, or urine for the purpose of determining the presence of alcohol or drugs." Also, the arresting officer must first offer a breath test in writing before administering any other tests. Id.
Additionally, Section 56-5-2953(A)(2)(b) of the South Carolina Code (Supp. 2004) provides that a person who violates section 56-5-2945 must have his conduct at the breath test site videotaped, including being informed of the right to refuse the test.
In June 1998, in conjunction with Act 434, the legislature enacted section 56-5-2946 of the South Carolina Code (Supp. 2004), which states the following in regard to felony DUI:
Notwithstanding any other provision of law, a person must submit to either one or a combination of chemical tests of his breath, blood, or urine for the purpose of determining the presence of alcohol, drugs, or a combination of alcohol and drugs if there is probable cause to believe that the person violated or is under arrest for violation of Section 56-5-2945.
(emphasis added).
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