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State v. Salisbury1/16/2001
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal From Dorchester County Luke N. Brown, Jr., Circuit Court Judge
Heard December 2, 1999
AFFIRMED AS MODIFIED
Elliott G. Salisbury, Jr. ("Salisbury") appeals the Court of Appeals' decision he was not entitled to a circumstantial evidence jury charge at his trial for driving under the influence ("DUI"). We affirm.
Factual/Procedural Background
At Salisbury's trial for DUI, the State's case consisted of the following evidence. In Dorchester County on December 23, 1995, three Highway Patrol troopers observed Salisbury exceeding the speed limit in his pickup truck and crossing the center line of the road on three occasions. When Salisbury was stopped, Officer Link observed Salisbury had an odor of alcohol on his breath, he was unsteady on his feet, his eyes were bloodshot, and he had the general appearance of being under the influence. Salisbury acknowledged he had been drinking. Salisbury failed three field sobriety tests administered by Officer Link. Salisbury was unable to complete the alphabet, unable to complete the "walk and turn" test, and, according to one officer, when asked to do the "one leg stand" test, he responded he was "too drunk to do that shit." Salisbury was arrested for DUI and transported to the patrol office where Trooper Robert Beres administered a breathalyzer test that indicated he had a blood alcohol level of .21.
Salisbury presented a defense case that consisted of the following evidence. Salisbury testified at trial that a back injury contributed to his behavior the night he was arrested. He claimed he was driving to buy pain pills for his back condition when he was stopped. Salisbury admitted to drinking four beers between 8:00 and 12:00 p.m. He claimed he was crossing the center line of the road because he was unfamiliar with the truck he was driving and was having difficulty with the defroster. To explain his failure of the field sobriety tests, Salisbury claimed: (1) he was unable to recite the alphabet because he had not been in school since the 1970s; (2) he was unable to walk heel-to-toe or walk in a straight line because of his back condition; and (3) he could not stand on one foot because, weighing three hundred pounds, he "could not stand all that weight on one leg." Salisbury also denied making the statement he was "too drunk to do that shit" after he was asked to perform the "one leg stand" test. According to Salisbury, he said "I guess you think I can't do this shit because I'm drunk; but it's because of my back."
On May 29, 1996, Salisbury was found guilty of DUI and was sentenced to one year and a $2,000 fine, suspended upon the service of sixty days or twenty days of public service and payment of $1,500 with two years probation. The trial judge refused to give a charge on circumstantial evidence. The Court of Appeals affirmed his conviction and sentence on February 17, 1998. State v. Salisbury, 330 S.C. 250, 498 S.E.2d 655 (Ct. App. 1998). Salisbury appeals to this Court on the following issue:
Did the Court of Appeals err in affirming the trial judge's refusal to charge the jury on circumstantial evidence?
Law/Analysis
Salisbury argues the Court of Appeals erred by affirming the trial court's refusal to give a charge on circumstantial evidence. Salisbury contends the trial judge was required to give the jury a circumstantial evidence charge where the State relied entirely, or at least substantially, on circumstantial evidence to prove Salisbury was driving while impaired. Specifically, Salisbury argues he was entitled to the circumstantial evidence jury charge outlined in Sta
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