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State v. Henderson7/9/2001
directed me to give you a breath test. I am trained and certified by the South Carolina Law Enforcement Division, SLED, to give this test. You have the right to refuse to take this test. If you refuse to take this test your privilege to drive in South Carolina must be suspended or denied for 90 days. You have the right to additional independent tests. Whether you take this breath test or not you will be given reasonable assistance in contacting a qualified person of your own choosing to conduct any additional tests. You will have to pay for additional tests.
Given the offer to stipulate by Henderson's counsel, there was no plausible reason why this language should have been read to the jury. Unlike the situation in Wilson, the State was not required to lay a foundation for the Datamaster test results. While we recognize that a stipulation usually involves the consent of all parties, the State's consent was not necessary here, where, by statute, "a person's . . . failure to request additional blood or urine tests is not admissible against the person in the criminal trial." § 56-5-2950(a). It was thus error for the municipal court judge to allow it to come before the jury.
Contrary to the State's argument, we are not persuaded that a different result is required by either State v. Anderson, 318 S.C. 395, 458 S.E.2d 56 (Ct. App. 1995) or State v. Hamilton, 327 S.C. 440, 486 S.E.2d 512 (Ct. App. 1997). In Anderson, the defendant was found guilty of driving under suspension (DUS), DUI, and violating the Habitual Traffic Offender Act. At trial, the defendant offered to stipulate to the jurisdiction of the court, but the solicitor refused. On appeal, Anderson argued the trial court erred in denying his motion to sever the habitual traffic offender charge from the DUS and DUI charges. While the dissent would have required the trial court to grant the motion, the majority held it could not reach the issue since it had not been preserved. Accordingly, Anderson cannot be read to hold that the State should not accept an offer to stipulate under the circumstances presented in this case.
Hamilton is equally unavailing to the State's position. There, this court held that the State was not required to stipulate, as requested by the defense, to Hamilton's prior burglary convictions because the previous burglaries were an element of the crime for which Hamilton was charged. We did not hold that a stipulation could never be required, however.
The facts presented in this case are distinguishable from those in either Anderson or Hamilton. Here, a specific legislative enactment proscribes the admission of a person's failure to request additional blood or urine tests. Wilson held there was no error in refusing to redact language concerning independent testing on the Datamaster form where the defendant did not offer to stipulate that proper procedures were followed and that he was advised of his statutory rights. The logical extension of Wilson's holding is that where the defendant does offer to so stipulate, it is error to permit the State to introduce evidence which is barred by § 56-5-2950(a).
For the foregoing reasons, the circuit court judge's decision to reverse Henderson's conviction is hereby
AFFIRMED.
CURETON and CONNOR, JJ., concur.
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