 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Frey1/25/2005
ORDER
PER CURIAM
The State has petitioned for a rehearing and argues our prior opinion was incorrect in several particulars. While we deny the petition for rehearing, we briefly address the State's contentions.
The State argues initially that the record establishes its compliance with the statutory mandate requiring that " lood and urine samples must be obtained by physicians licensed by the State Board of Medical Examiners, registered nurses licensed by the State Board of Nursing, and other medical personnel trained to obtain the samples in a licensed medical facility." S.C. Code Ann. § 56-5-2950 (a) (Supp. 2003). We disagree, for we remain firmly convinced that this record fails to establish that Scott Darragh is either a licensed physician, registered nurse or is otherwise properly qualified under the statute.
The State further argues that it would have been unduly burdensome to "utilize the out-of-state subpoena process, and expend Spartanburg County's limited financial resources, to secure the testimony of" Darragh. Assuming Darragh has moved to another state as alleged, the suggestion that Darragh's qualifications could be established only by his presence and testimony at trial is specious.
We also view as meritless the State's newly asserted efforts to recast the issue as one of "chain of custody."
The State finally contends that a remand to the trial court is the appropriate remedy. While we agree that a remand is appropriate under the circumstances, we do not adopt the State's expansive proposal for the taking of new evidence. We have reviewed the cases cited by the State for the proposition that it is entitled to a second bite of the apple to establish Darragh's qualifications: State v. Primus, 312 S.C. 256, 440 S.E.2d 128 (1994) (case remanded to lower court to conduct an initial Jackson v. Denno hearing to determine whether the defendant was "in custody" for Miranda purposes when he made statements to a police officer); State v. Williams, 258 S.C. 482, 189 S.E.2d 299 (1972) (case remanded to trial court to consider defendant's motion to strike the in-court identification testimony where the trial court "overruled the motion without going fully into whether or not there had, in fact, been improper prior confrontations, and whether, in fact, either or both of the in-court identifications were perchance the tainted product of any such unlawful confrontation"); State v. Sampson, 317 S.C. 423, 454 S.E.2d 721 (Ct. App. 1995) (court declined on appeal to rule on motion to suppress, instead remanding to the trial court to conduct an initial hearing on the sufficiency of a search warrant affidavit). These cases represent remands to trial courts to address issues that were not fully addressed and developed during the original trial. Remand in such circumstances is far removed from the request here--allowing the State a second evidentiary hearing. We conclude the remand should be limited to the existing record for the trial court to determine whether the State's failure to establish the qualifications of Darragh per section 56-5-2950(a) "materially affected the accuracy or reliability of the tests results or the fairness of the testing procedure." S.C. Code Ann. § 56-5-2950 (e) (Supp. 2003).
The original opinion, therefore, is withdrawn and the attached opinion is substituted therefore.
Kaye G. Hearn, C. J.
Thomas E. Huff, J.
John W. Kittredge, J.
Opinion
Submitted September 15, 2004; Filed October 25, 2004; Withdrawn, Substituted and Refiled January 25, 2005
REVERSED IN PART AND REMANDED
Timothy Scott Frey appeals his
Page 1 2 3 4 South Carolina DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|