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State v. Long3/21/2005
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Heard February 15, 2005
AFFIRMED
We granted certiorari to review a Court of Appeals' decision holding that, pursuant to S.C. Code Ann. § 56-5-2946 (Supp. 2004), a law enforcement officer may require, without first offering a breath test, a person charged with felony driving under the influence (Felony DUI) to submit to a chemical test of his blood. State v. Long, Op. No. 2003-UP-111 (S.C. Ct. App. filed February 12, 2003). We affirm.
FACTS
Following a single-car accident, petitioner (Driver) and his two passengers were transported to a hospital. One of the passengers died as a result of injuries received. Around 4 a.m., several hours after Driver arrived at the hospital, a blood sample was taken at the behest of a law enforcement officer.
At trial, Driver objected to the introduction of the results of this blood test since he alleged he had neither been offered a breath test nor had a licensed medical personnel determined that he was unable to give a breath sample. Driver relied upon the general implied consent statute, which provides "the person must first be offered a breath test...[unless] the person is physically unable to provide an acceptable breath sample because he has an injured mouth, is unconscious or dead, or for any other reason considered acceptable by the licensed medical personnel...." before a blood sample may be taken. § 56-5-2950(a). The State contended, and the trial judge agreed, that the specific statute applicable to individuals suspected of Felony DUI, § 56-5-2946, obviated the requirement of § 56-5-2950(a) that a breath test be offered or be deemed unavailable, before a blood test is ordered. The test result was admitted, and on appeal, the Court of Appeals affirmed.
ISSUE
Did the Court of Appeals err in holding that § 56-5-2946 altered the prerequisites for ordering a blood test of individuals charged with Felony DUI?
ANALYSIS
The general implied consent statute was rewritten by 1998 Act No. 434, § 7. Section 6 of that same act created § 56-5-2946. We are not asked today to determine all the changes wrought by § 56-5-2946, but only whether this statute alters the general requirement that an officer offer a breath test or obtain a medical opinion that such a test is not feasible before offering a blood test. We hold that it does.
Pursuant to § 56-5-2950, a person driving a motor vehicle in South Carolina is deemed to have consented to a chemical test of his breath, blood, or urine if arrested for an offense arising out of acts alleged to have been committed while under the influence of alcohol, drugs, or a combination of the two. § 56-5-2950(a). The arresting officer must first assure the individual is offered a breath test, unless "licensed medical personnel" deems such a test unacceptable. In that case, the officer may request a blood test. Id. The officer must notify the individual of his right to independent testing, and provide affirmative assistance to assist in arranging such testing. Id.
Section 56-5-2950(a) also prescribes certain technical testing requirements, such as requiring an accurate simulator test be performed before the breath test is administered, and that blood and urine samples be obtained by medical personnel. This section also provides civil and criminal immunity to those administering the tests or obtaining the samples in most situations.
Part (b) of § 56-5-2950 provides for certain evidentiary presumptions based upon the alcohol concentrations shown by the tests. Part (c) deems an unconscious person or one otherwise unable to refuse to have
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