State v. Craig ( 2009 )

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Michele Nichole Craig, Appellant.

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Appeal From York County
Lee S. Alford, Circuit Court Judge

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Unpublished Opinion No. 2009-UP-603
Heard December 10, 2009 – Filed December 22, 2009

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AFFIRMED

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Michael L. Brown Jr., of Rock Hill, for Appellant.

Attorney General Henry Dargen McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Deborah R.J. Shupe, all of Columbia, and Solicitor Kevin S. Brackett, of York, for Respondent.

PER CURIAM: This appeal involves a 2007 conviction for driving under the influence (DUI). On appeal, Craig argues the trial court erred in failing to dismiss the DUI charge, or in the alternative, failing to suppress: (1) the incident site tape and results of the field sobriety test in violation of section 56-5-2953 of the South Carolina Code (2006); and (2) her refusal of the breath analysis test.[1]  Craig further asserts the charge should have been dismissed because the twenty-minute waiting period prior to administration of the breath analysis test was not videotaped in accordance with sections 56-5-2950 and 56-5-2953 of the South Carolina Code (2006)[2]. 

We affirm pursuant to Rule 220(b)(2), SCACR, and the following authorities:  S.C. Code Ann. § 56-5-2953(B) (2006) (stating that failure by the arresting officer "to produce" a videotape is not a ground alone for dismissal of a DUI charge if the arresting officer submits a sworn affidavit certifying that the video equipment was in an inoperable condition and that reasonable efforts have been made to maintain the equipment in an operable condition);  State v. Dicapua, 373 S.C. 452, 457, 646 S.E.2d 150, 153 (Ct. App. 2007) (Stilwell, J., concurring) ("The flaws in the videotape go to the weight of the evidence and not to its admissibility."); State v. Salisbury, 330 S.C. 250, 269, 498 S.E.2d 655, 665 (Ct. App. 1998) (ruling the conflict in testimony regarding the administration of the breathalyzer test went to the weight of the evidence as opposed to its admissibility); State v. Degnan, 305 S.C. 369, 371, 409 S.E.2d 346, 348 (1991) (holding the administration of a breathalyzer test is not a critical stage at which an accused is entitled to counsel); Betterman v. State Dep't of Motor Vehicles, 728 N.W.2d 570, 584 (Neb. 2007) ("An arrested motorist refuses to submit to a chemical test when the motorist's conduct, demonstrated under the circumstances confronting the officer requesting the chemical test, justifies a reasonable person's belief that the motorist understood the officer's request for a test and manifested a refusal or unwillingness to submit to the requested test."); State v. Jansen, 305 S.C. 320, 323, 408 S.E.2d  235, 237 (1991) (finding there was no question of the validity of the breath test as a result of failing to videotape the defendant for twenty minutes prior to submitting to the test where no test was given); Ex Parte Horne, 303 S.C. 30, 32, 397 S.E.2d 788, 789 (Ct. App. 1990) ("The question of the validity of test methods employed by a breath test operator does not arise until a test is given and its results are offered as evidence."); S.C. Code Ann. § 56-5-2953 (A)(2)(d) (2006) (requiring the videotaping of the twenty minute pre-test waiting period "if the arresting offer administers the breath test . . ."). 

AFFIRMED.

WILLIAMS, PIEPER, and LOCKEMY, JJ., concur.

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[1] As an additional basis to suppress the breath test, Craig argues that she was never offered a breath test.  The trial court did not rule upon this issue, thus it is not preserved for review.   State v. Oglesby, 384 S.C. 289, 293, 681 S.E.2d 620, 622 (Ct. App. 2009) ("In order for an issue to be preserved for appellate review, it must have been raised to and ruled upon by the trial [court].  Issues not raised and ruled upon in the trial court will not be considered on appeal.") (internal quotation omitted).

[2]  These sections of the South Carolina Code were in effect at the time of Craig’s arrest and bench trial.  Section 56-5-2953 was subsequently amended by 2008 Act No. 201, § 11, effective February 10, 2009.  The 2008 amendment rewrote subsections (1) and (2) and substituted "video recording" for "videotape."  See S.C. Code Ann. 56-5-2953 (Supp. 2008). Additionally, section 56-5-2950 was amended by 2008 Act No. 201, § 9, effective February 10, 2009. The 2008 amendment rewrote this section and redesignated the subsections.  See S.C. Code Ann. § 56-5-2950 (Supp. 2008).