THE STATE OF SOUTH CAROLINA In The Supreme Court

The State, Petitioner,

v.

Phillip Wesley Sawyer, Respondent.

Appellate Case No. 2011-201206

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Appeal from Spartanburg County Roger L. Couch, Ci rcuit Court Judge

Opinion No. 27393 Heard November 5, 2013 – Filed June 4, 2014

AFFIRMED

Attorney General Alan McCrory Wilson and Assistant Attorney General William M. Blitch, Jr., both of Columbia, and Solicitor Barry Joe Barnette, of Spartanburg, for Petitioner.

Appellate Defender LaNelle Cantey DuRant, of Columbia, for Respondent.

JUSTICE PLEICONES: The Court granted the State's petition for a writ of certiorari to review an unpu blished Court of Appeals decision that affirmed thecircuit court's suppression of respondent's breath test results and video in this prosecution for driving under the influence (DUI). State v. Sawyer , 2011-UP-263 (S.C. Ct. App. filed June 7, 2011). We affirm, holding that a videotape from the breath test site that lacks the audio portio n of the reading of Miranda rights and the informed consent law did not satisfy the requirements of S.C. Code Ann. § 56-5

- 2953(A)(2) (2006). 1

FACTS

In September 2007, responde nt was taken to the Spartanburg County Jail by Deputy Evett, who picked him up followi ng a traffic stop made by Lt. Woodward. Evett, a certified Data Master operator, pl aced respondent in the "subject test area" which is a room that adjoins the Data Ma ster room. The rooms are separated by a glass panel. The deput y retrieved some forms from the Data Master room and then appeared to read respondent his Miranda rights and the implied consent information. Both respondent and De puty Evett signed the forms. There are separate audio and video recording devices in both the subject test area and in the breathalyzer room. In this case, the audi o device in the subject test area did not
function.

Respondent moved to suppress the evidence relating to the breath test site alleging the videotape did not meet the requirement s of S.C. Code Ann. § 56-5-2953(A). Section (A) required that a person charge d with DUI have his conduct at both the
incident site and the breath test site videotaped. Subsection (A)(2) provided:

The videotaping at the breath site:

(a) must be completed with in three hours of the person's arrest for a violation of Section 56-5-2930, 56-5-2933, or 56-5-2945 or a probable cause determination that the person violated Section 56-5-2945, unless compliance is not possible because the person needs emergency

1 Subsection A of this statute was rewr itten by 2008 Act No. 201, § 11, effective February 10, 2009 or when new equipment is installed. Essentially, the statute no longer requires the test to be conducte d within 3 hours, and eliminates the requirement that the video include the reading of Miranda rights at the breath test
site.medical treatment considered necessary by licensed medical personnel;

(b) must include the reading of Miranda rights, the entire breath test procedure, the person being informed that he is being videotaped, and that he has the right to refuse the
test;

(c) must include the person taking or refusing the breath test and the actions of the breath test operator while conducting the test;

(d) must also include the person's conduct during the required twenty-minute pre-test waiting period, unless the officer submits a sworn affidavit certifying that it was physically impossible to videotape this waiting period. However, if the arresting of ficer administers the breathtest, the person's conduct during the twenty-minute pretest waiting period must be videotaped.

The circuit court first held that the vide otape itself must be excluded because "the videotape has no audio of the conversations between the testing officer and [respondent] concerning such matters as hi s Miranda warnings, the explanation of implied consent or other matters that ma y have been discusse d between them." The judge held that evidence other than the videotape could be used, citing § 56-5- 2953(B).

On respondent's motion for reconsideration, the circuit court clarified that it was suppressing not only the videotape, but also any evidence or testimony that respondent was offered and/or took a breath te st, as well as the results of that test. The court noted the State had supplied an "exigency" affidavit, seeking to invoke the provisions of § 56-5-2953(B) that provides "Failure by the arresting officer to produce the videotapes required by this s ection is not alone a ground for dismissal of any charge . . . if the arresting officer submits a . . . sworn affidavit that it was physically impossible to produce the videot ape because . . . ex igent circumstances existed." (emphasis supplied). The j udge held "an exigency" required an emergency situation, or one requiring i mmediate attention or remedy, and found
that since the State did not even know of the audio malfunction for several months after respondent's test, there was no exig ent circumstance here. The court alsonoted the affidavit was not prepared by the arresting officer, Lt. Woodward, as required by the statute, but rather by Deputy Evett, the breath test administrator.

In the direct appeal, the State argued firs t that since a videotape was produced, no consideration of Deputy Evett's "e xigency" affidav it was necessary. 2 The State also argued that any defects in the audio por tion of the tape went to its weight, not its admissibility, and that all the statute required was a video, which it produced. Alternatively, the State argued the tr ial judge should not have relied on the "exigency" exception, but that instead he should have admitted the evidence based upon a different part of § 56-5-2953(B), whic h permits the court to consider "other
valid reasons" for the lack of a vide otape based upon the "totality of the circumstances." This "totality of the circumstances" argument was not preserved for appeal as it was not ruled upon in either the circuit court's original order or in
its amended order. E.g. State v. Kromah , 401 S.C. 340, 737 S.E.2d 490 (2013) fn.
3.

Following the Court of Appeals' decision affirming the trial court's suppression of
all evidence obtained at the breath test s ite, the State sought a writ of certiorari. In its petition, the State made two arguments:

I. The Court of Appeals erred in affirming the trial court's suppression of the video recording of the breath test site, testimony or evidence that a breath test was offered or administered, and the results of Respondent's breath test.

II. The Court of Appeals erred in refusing to reverse the trial court's decision based on the totality of the circumstances pursuant to Section 56-5-2953(B) of the South Carolina
Code.

State's petition for a writ of certiorari to the Court of Appeals (filed November 18, 2011) (C-TRACK A ppellate Case No . 2011-201206).

2 We note that, assuming it was error to cons ider this affidavit, the State was the party that introduced it. It is well-settled that a party cannot complain of an error it
induced. E.g. State v. Stroman , 281 S.C. 508, 316 S.E.2d 395 (1984).On January 9, 2013, the Court granted cer tiorari on the first question but denied
certiorari on the second. S. Ct. Order dated January 9, 2013 (C-TRACK Appellate Case No. 2011-201206). 3

ISSUE

Did a breath test site video that did not include audio demonstrating that Miranda warnings were given, that the individual was informed that he was being videotaped, or that he has the right to refuse the br eath test meet the requirements of § 56-5-2953(A) as it ex isted in September 2007?

ANALYSIS

The State argues that the statute only requi red that the individual's "conduct" be recorded, and that conduct under the stat ute has been defined by the Court of Appeals as "one's behavior, action or demeanor." Murphy v. State , 392 S.C. 626, 709 S.E.2d 685 (Ct. App. 2011) superseded by statute as stated in State v. Gordon

, 2014 WL 1614854 (S.C. Ct. App. filed Apr. 23, 2014). Thus, the State contends that only video of the individual is necessary to satisfy the statute. We disagree.

In Murphy , the incident site video did not capture a full length image of the individual as she attempted field sobriety tests. Murphy held that the video adequately reflected the individual's behavior. Here, however, we are concerned
not with the defendant's c onduct but with the content of the statutorily required warnings. At the breath test site, th e videotape must record the individual's conduct during the twenty-minute waiting period [§ 56-5-2953( A)(2)(d)] and the action of the breathalyzer operator conduc ting the test [§ 56-5-2953(A)(2)(c)]. Silent tape of this conduct would be acceptable under Murphy . However, the statute required a videotape not merely of the individual's conduct while being read his Miranda and informed consent rights , but also that it "must include" "the reading of Miranda rights" and "the pe rson being informed that he is being videotaped, and that he has the right to re fuse the test." § 56-5-2953(A)(2)(b). A silent video simply cannot meet these statutory requirements. 4

3 While the dissent would find the scope of the circuit court's suppression order too broad, there is no challenge to the breadth of that order on certiorari.

4 Contrary to the dissent's contention that the video shows respondent being read
his Miranda warnings, being told the matter wa s videotaped, and being informedThe State argues that this defect in the videotape goes only to its weight, not its admissibility. Here we are concer ned with a statute which governs the admissibility of cer tain evidence. Compare e.g. S.C. Code Ann. § 19-1-180 (Supp. 2012) (certain hearsay statements made by children admissible in family court if statute's terms complied with). In § 56-5-2953(B), the General Assembly specified:

Nothing in this section may be construed as prohibiting the
introduction of other evidence in the trial of a [DUI charge]. Failure by the arresting officer to produce the videotapes required by this section is not alone a ground for dismissal of [charges] if the arresting offi cer submits a sworn affidavit certifying that the videotape equipm ent at the time of the . . . breath test device [sic] was in an inoperable condition, stating
reasonable efforts have been made to maintain the equipment . . . and certifying there was no other operable breath test facility available in the county or, in the alternative, submits a sworn affidavit certifying that it was physically impossible to produce the videotape because the pers on needed emergency medical treatment, or exigent circ umstances existed . . . . Nothing in this section prohibits the court from considering any other valid reason for the failure to produce the videotape based upon the totality of the circumstances . . . .

Section 56-5-2953(B) (2006).

While defects in evidence do not genera lly affect admissibility, as the State maintains, the Court has inte rpreted the statute to requi re strict compliance with Section (A) as a prerequisite for admissibility, unless an exception in Section (B) applies. City of Rock Hill v. Suchenski , 374 S.C. 12, 646 S.E.2d 879 (2007); see also State v. Elwell , 403 S.C. 606, 743 S.E.2d 802 (2013 ). The General Assembly

of his right to refuse, all that the video shows is the officer's lips moving. As for respondent's failure to challe nge the contents of the officer's warnings, at this juncture the sole issue before the circ uit court was whether the silent video complied with the statute. Further, res pondent has not conceded the adequacy of the officer's statements, as reflected in his briefs which refer to the "alleged warnings." Finally, "bad faith" and "bad motive" are irrelevant here.is presumed to be aware of this Court's interpretation of a statute, and where that statute has been amended, but no change has been made that affects the Court's interpretation, the legislature's inaction is evidence that our interpretation is

correct. E.g. McLeod v. Starnes , 396 S.C. 647, 723 S.E.2d 198 (2012). While the General Assembly has amende d § 56-5-2953 following our Suchenski decision, nothing in the amended statute alters our holding that failure to comply with the
statute's terms renders the evidence inadmissible. 5

As explained above, we declined certiorari to consider whether the circuit court might have admitted the flawed tape under § 56-5-2953(B)'s "totality of the circumstances" exception, and we have dete rmined this tape di d not satisfy § 56-5

- 2953(A). The Court of Appeals properly a ffirmed the circuit court's suppression
order. City of Rock Hill v. Suchenski

, supra

. 6

CONCLUSION

The Court of Appeals' decision is

AFFIRMED

.

HEARN and BEATTY, JJ., concur. TO AL, C.J., dissenting in a separate opinion in which KITT REDGE, J., concurs.

5 The dissent maintains that a prejudice anal ysis is appropriate whenever evidence is obtained without full compliance with statutory requirements, citing State v.
Odom , 382 S.C. 144, 676 S.E.2d 124 (2009) ( actually involving violation of executive agreements); State v. Huntley , 349 S.C. 1, 562 S.E.2d 472 (2002); State

v. Chandler , 267 S.C. 138, 226 S.E.2d 533 (1976); State v. Sachs , 264 S.C. 541, 216 S.E.2d 501 (1975). As we have explained, these decisions are inapposite since, unlike 56-5-2953, they involve stat utes where the General Assembly did not specify the remedy for the State's failure to comply. Suchenski

, supra

.

6 The only arguable error of law was the circuit court's failure to dismiss the charges once it determined that the Stat e did not produce a videotape meeting the requirements of (A) and that it did not meet any of the exceptions in (B).
Suchenski

, supra ; Elwell

, supra . Respondent, however, did not appeal the circuit court's denial of his request that the charges be dismissed.CHIEF JUSTICE TOAL: I respectfully dissent. I would hold that the circuit court committed an error of law in suppre ssing the evidence at i ssue in this case.

Assuming, without deciding, that the video recording of Respondent's breath test site did not comply with section 56-5-2953, 7 I would apply a harmless error analysis in determining whether the video recording and breath test evidence should have been suppressed. This Cour t has recognized that the "exclusion of
evidence should be limited to violations of constitutional rights and not to statutory violations, at least where the appellant cannot demonstrate prejudice at trial resulting from the failure to follow statutory procedures." State v. Chandler , 267 S.C. 138, 143, 226 S.E.2d 553, 555 (1 976) (emphasis added) (citing State v. Sachs

, 264 S.C. 541, 566 n.11, 216 S.E.2d 501, 514 n.11 (1975)). In State v. Huntley , 349 S.C. 1, 5, 562 S.E.2d 472, 474 (2002), the circuit court suppressed a defendant's breathalyzer results where the simulator test solution did not contain the proper alcohol concentration required by an Act. 8 Despite non-complia nce with the Act,
this Court held that the circuit court improperly excluded the breathalyzer test
results because the defendant was not prejudiced by the violation, as the breathalyzer machine itself was operating properly. Id. at 6, 562 S.E.2d at 474. Therefore, the Court determined that evidence of non-comp liance with the Act went to the weight, not the admissibility of the defendant's breathalyzer results. Id.

Relying on these cases, I would hold that th e circuit court committed an error of law in failing to engage in a prejudi ce analysis upon finding that the video

7 The State argues that the video recordi ng satisfied section 56-5-2953 because the video recording captured all conduct and events required by the statute. In addition, the police officer who administer ed the breath test submitted an affidavit to the circuit court indicating that exigent circumstances existed under 56-5

- 2953(B) because the audio fa ilure was unknown and out of the officer's control at
the time of the test.

8 The Act amended South Carolina Code Ann. § 56-5-2950(a) to require a simulator test be performed before a brea th test is administered to ensure the reliability of the breathaly zer machine results. Act No. 434, 1998 S.C. Acts
3220–23.recording failed to satisfy the requirements of section 56-5-2953. 9

Contrary to the ma jority's assertion, the Genera l Assembly did not specify a remedy in section 56-5-2953 for failure to co mply with the statutory requirements. Subsection (B) merely provides that noncom pliance with the statute "is not alone a ground for dismissal" if the video recording qualifies under an exception in subsection (B). S.C. C ode Ann. § 56-5-2953(B); see also Suchenski , 374 S.C. at 16, 646 S.E.2d at 881 (finding that failu re to produce a video recording in compliance with 56-5-2953 may be a ground for dismissal if no exceptions apply). Regardless, in my opinion, a statut e's failure to specify a remedy for noncompliance does not preclude a prejudice analysis, as the ma jority implies. C.f.
State v. Landon , 370 S.C. 103, 108–09, 634 S. E.2d 660, 663 (finding a prejudice analysis appropriate for an alleged violat ion of a recordkeeping statute which does not specify a remedy for noncompliance).

In my view, Respondent was not prejudiced by the video recording's lack of audio. Aside from its lack of audio, the video recording complies with the statutory requirements of 56-5-2953 by including the reading of Respondent's
Miranda 10 warnings, the officer informing Respondent of the video recording and his right to refuse the breath test, and the br eath test procedure itself. This Court has stated that "the purpose of section 56-5- 2953 . . . is to create direct evidence of
a DUI arrest." Town of Mt. Pleasant v. Roberts , 393 S.C. 332, 347, 713 S.E.2d 278, 285 (2011). Despite the malfunctioni ng of the audio, the video recording nevertheless creates evidence of Responde nt's breath test. Significantly, Respondent has challenged neither the validity of the Miranda warnings he was given nor any other aspect of the breat h test procedure. Respondent has not
asserted that bad faith or a bad motive ex isted on the part of any actor involved in the video recording audio failure.

9 The mention of prejudice in City of Rock Hill v. Suchenski , 374 S.C. 12, 16, 646 S.E.2d 879, 881 (2007) has no imp act on the presen t case. In Suchenski , the Court found that a violation of 56-5-2953, even without a showing of prejudice to the defendant, may result in dism issal of the charges. Id. As the majority points out, in this case, Respondent did not appeal the circuit court's denial of his motion to
dismiss.

10 Miranda v. Arizona , 384 U.S. 436 (1966).Therefore, I would hold that Respondent was not prejudiced by the omission of audio in the video recording and, c onsequently, the circuit court erred in suppressing the evidence. Absent a violation of Respondent's constitutional rights—which are not in dispute here—the circuit court should not have excluded the video recording or the evidence surrounding Respondent's breath test without a showing that (1) the video did not comply with section 56-5-2953 and (2) Respondent was prejudiced as a result of the video's non-compliance. See Huntley , 349 S.C. at 6, 562 S.E.2d at 474; Chandler 267 S.C.at 143, 226 S.E.2d at
555.

In my view, nothing in section 56- 5-2953 mandates suppression of a defective video recording, nor has this Court ever interpreted the statute as requiring strict compliance for admission of a video recording, as the majority asserts. Defects in evidence gene rally do not affect admissibility. See State v.
Odom , 382 S.C. 144, 152, 676 S.E.2d 124, 128 (2009) (citing Huntley , 349 S.C. at 6, 562 S.E.2d at 474). As indicated, supra , in the prejudice analysis, "exclusion is typically reserved for c onstitutional violations." Id. (citing Huntley , 349 S.C. at 6, 562 S.E.2d at 474); Chandler , 267 S.C. at 143, 226 S.E.2d at 555. Thus, I would find that the defect in the video recording goes to the weight, rather than the admissibility, of the evidence. See Odom , 382 S.C. at 152, 676 S.E.2d at 128.

Likewise, I disagree with the majority's interpretation of Suchenski

. Specifically, the majority believes Suchenski stands for the proposition that strict compliance with section 56-5-2953 is a prer equisite for admissibility of evidence.
Suchenski merely holds that dismissal of a DUI charge is " an appropriate remedy provided by [section] 56-5-2953 where a violation of subsection (A) is not mitigated by subsection (B) exceptions." Suchenski , 374 S.C. at 17, 646 S.E.2d at 881 (emphasis added). In fact, the cas e makes no mention of suppression of evidence, addressing only dismissal of DUI charges as a possible remedy for non

compliance with the statute. Id. Because dismissal of Respondent's DUI charges is not before us, this Court may only review the circuit court's suppression order. As a result, the majority's reliance on Suchenski is misplaced.Furthermore, the majority provides no support for upholding the circuit court's suppression of Respondent's breath te st results along with all evidence or testimony related to the breath test. 11 Even if the failure to comply with the statute did, in fact, require suppression of the defective video recording, and assuming the
circuit court declined to dismiss the DUI charges, I cannot conceive of a basis, statutory or otherwise, for excluding the breath test results and the related testimony and evidence. To the cont rary, section 56-5-2953 provides that "[n]othing in this section may be construe d as prohibiting the introduction of other
relevant evidence" in the trial for a DUI . S.C. Code Ann. § 56-5-2953(B).

Therefore, because I would hold that the circuit court erred in failing to conduct a prejudice analysis and Respondent demonstrated no prejudice resulting from admission of the evidence, and because at the very least the circuit court erred in suppressing the evidence surrounding th e breath test, I would reverse the court of appeals' decision upholding the circuit court's suppression order and remand for
a new trial.

KITTREDGE, J., concurs.

11 I disagree with the major ity's contention that there is no challenge to the breadth of the circuit court's suppression order on certiorari. While the State's petition does not use that language, the State argued that the court of appeals erred in affirming the circuit court's suppression of the vi deo recording, the testimony or evidence that a breath test was offered or administered, and the results of the breath test. In my opinion, if the State contended the ci rcuit court erred in excluding the video recording only, the State's argument would have only mentioned the video recording.