THE STATE OF SOUTH CAROLINA
In The Court of Appeals

State of South Carolina,        Appellant,

v.

Bruce Charles Tice,        Respondent.

Appeal From Edgefield County
L. Casey Manning, Circuit Court Judge

Unpublished Opinion No. 2003-UP-652
Submitted August 20, 2003 � Filed November 13, 2003���

REVERSED

Eugene Hamilton Matthews, of Blythewood, Frank L. Valenta, Jr., of Blythewood, for Appellant

Elmer W. Hatcher, Jr., of Aiken, for Respondent.

PER CURIAM:� Bruce Charles Tice was charged with driving under the influence.�� He was convicted in magistrate�s court, but his conviction was reversed on appeal to the circuit court.� The State appeals.� We reverse.

FACTUAL/PROCEDURAL HISTORY

South Carolina Highway Trooper David Hamilton was driving down a rural road in Edgefield County on his way home from work when he saw headlights in the woods and a truck down an embankment.��� Hamilton noticed Tice attempting to rock the vehicle.�� Hamilton approached Tice and asked if Tice was alright.� Tice appeared intoxicated and his response to Hamilton did not make sense.�� Hamilton arrested Tice for driving under the influence (DUI) and placed Tice in his patrol car.� Trooper Taylor arrived on the scene, and Hamilton turned Tice over to Taylor.�� Hamilton continued home, while Taylor transported Tice for administration of the breathalyzer test.�� Tice refused to take the test.

At trial before the magistrate, Hamilton testified regarding the events leading up to the arrest.�� He stated he did not give Tice field sobriety tests because he did not believe Tice could pass the tests.��� After Hamilton�s testimony, Tice objected to any testimony by Taylor regarding the breathalyzer test because the test was not administered by the arresting officer as required by statute.�� The magistrate overruled the objection, and Taylor testified regarding Tice�s refusal to take the test.�� Tice was convicted of DUI.

Tice appealed his DUI conviction to the circuit court, arguing, in part, that the magistrate erred in allowing testimony regarding the breathalyzer test because the test was not administered by the arresting officer as required by statute.�� The circuit court judge agreed that Tice�s refusal to consent to the breathalyzer test should not have been admitted at trial.� Relying on the order from another circuit court judge in the 1992 case of Criswell v. State, 92-CP-19-181, the judge in Tice�s appeal reversed the conviction.�� The judge cited language from the order in Criswell that the implied consent law requires that the breathalyzer test must be administered at the direction of the arresting officer.�� The judge in Tice�s appeal recognized the DUI statutes had been amended since Criswell was decided, but he held the reasoning was still appropriate.�� The State appeals.�

ISSUE

Whether the circuit court erred in reversing the conviction on the grounds that an officer other than the arresting officer was permitted to testify that Tice refused the breathalyzer test ?

DISCUSSION

The State argues the circuit court judge erred in reversing Tice�s DUI conviction on the ground the arresting officer did not direct Tice to have a breathalyzer test.�

�In criminal appeals from magistrate or municipal court, the circuit court does not conduct a de novo review, but instead reviews for preserved error raised to it by appropriate exception.�� State v. Henderson, 347 S.C. 455, 457, 556 S.E.2d 691, 692 (Ct. App. 2001) (citations omitted).� On appeal, this Court�s review is limited to the correction of errors of law.� Id.

The implied consent statute provides that a person who drives in South Carolina impliedly consents to the testing of his or her breath or blood for the presence of alcohol or drugs.� S.C. Code Ann. � 56-5-2950 (Supp. 2002).� Certain procedures must be followed in administering the test before the results may be admitted at trial.� The statute provides as follows:

A breath test must be administered at the direction of a law enforcement officer who has arrested a person for driving a motor vehicle in this State while under the influence of alcohol, drugs, or a combination of them. At the direction of the arresting officer, the person first must be offered a breath test to determine the person�s alcohol concentration.

S.C. Code Ann. � 56-5-2950(a) (emphasis added).� This statute has been interpreted to mean that the breathalyzer test need not be offered or given by the arresting officer, but that it should be offered or given at the arresting officer�s direction.� Kelly v. South Carolina Dep�t of Highways, 323 S.C. 333, 474 S.E.2d 443 (1996).� In order for the results of the breathalyzer test to be admissible, the State must lay a foundation by proving that (1) the machine was working properly; (2) the correct chemicals had been used; (3) the accused did not place anything in his mouth twenty minutes prior to testing; and (4) a qualified person properly administered the test.� State v. Parker, 271 S.C. 159, 245 S.E.2d 904 (1978).��

Although no South Carolina appellate court cases have decided the issue of admissibility of breathalyzer test results when the test was not administered at the direction of the arresting officer, the circuit court�s order in the case of Criswell v. State, 92-CP-19-181, discussed this issue.� Because the arresting officer was not the person who directed that Criswell be given the breathalyzer test, the circuit court found the State failed to comply with the specific language of the implied consent statute and, thus, the results of the test should not have been admitted.� The circuit court reversed Criswell�s conviction.

The question in this case, however, concerns the admission of evidence that Tice withdrew his implied consent by refusing to take the breathalyzer test.� Our courts have repeatedly held that the admission of the defendant�s refusal to submit to a breathalyzer test does not violate his or her constitutional rights.� State v. Jansen, 305 S.C. 320, 322, 408 S.E.2d 235, 237 (1991) (holding the revocation of an accused�s implied consent to submit to the breathalyzer test is �constitutionally admissible as prosecutorial evidence at the trial pursuant to that arrest�); State v. Kerr, 330 S.C. 132, 151-52, 498 S.E.2d 212, 222 (Ct. App. 1998) (�A defendant�s constitutional rights are not violated by the admission of testimony of the defendant�s failure to submit to a chemical test designed to measure the alcoholic content of his blood.�); City of Columbia v. Ervin, 325 S.C. 644, 649, 482 S.E.2d 781, 784 (Ct. App. 1997), aff�d as modified, 330 S.C. 516, 500 S.E.2d 483 (1998) (�It is not error to admit into evidence a defendant�s refusal to submit to a breathalyzer test.�).��

The circuit court judge in the present case erred in several respects.� Because Tice did not submit to a breathalyzer test, the requirement that the arresting officer direct that the test be given and the foundation requirements of Parker do not apply.� The circuit court judge erred in relying upon Criswell, a circuit court order that has no precedential value and did not concern the admission of a refusal to submit to the test.� Further, our cases make it clear that a defendant�s refusal to submit to the breathalyzer test is admissible.� The circuit court judge in the present case committed an error of law in reversing Tice�s conviction.� Accordingly, we reverse.�

CONCLUSION

Because the circuit court judge committed an error of law, the circuit court�s order reversing Tice�s conviction is

REVERSED.�

HEARN, C.J., CONNOR and ANDERSON, JJ., concur.