THE STATE OF SOUTH CAROLINA 

In The Supreme Court 

The State, Petitioner, 

v. 

Cody Roy Gordon, Respondent. 

Appellate Case No. 2014-001337 

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS 

Appeal From Oconee County 

The Honorable Alexander S. Macaulay, Circuit Court Judge 

Opinion No. 27554 

Heard June 3, 2015 – Filed August 5, 2015 

AFFIRMED AS MODIFIED 

Attorney General Alan McCrory Wilson and Assistant 

Attorney General John Benjamin Aplin, both of 

Columbia, for Petitioner. 

Keith G. Denny, of Keith G. Denny, P.A., of Walhalla, 

for Respondent. 

JUSTICE BEATTY: The State appeals the Court of Appeals' affirmation 

of the circuit court's interpretation of section 56-5-2953 of the South Carolina 
Code. The Court of Appeals found that section 56-5-2953 requires officers to 

record the head of the motorist when administering the Horizontal Gaze 

Nystagmus (HGN) field sobriety test and that Cody Gordon's head was not 

sufficiently visible. The State posits that a plain reading of the statute makes no 

mention of the motorist's "head." We affirm the Court of Appeals' conclusion that 

the statute requires that the motorist's head be recorded in the video; however, we 

vacate the mandate to remand to the magistrate court for further consideration. We 

reinstate Gordon's conviction as we find that the officer complied with the statute 

in recording Gordon's HGN test. 

I. Factual/Procedural History 

On October 29, 2011, Gordon was stopped at a license and registration 

checkpoint by a South Carolina Highway Patrol Officer. The officer administered 

several field sobriety tests. The test at issue in this case is the HGN test. The 

dashboard camera on the officer's patrol car recorded the entire incident, including 

all field sobriety tests, with continuous recording. The stop occurred at night, so 

the lighting was not perfect, but the officer had Gordon stand in the light of his 

patrol car's headlights and further illuminated Gordon by shining a flashlight 

directly on his face. 

 

Following the tests, Gordon was placed under arrest. Gordon was charged 

with driving under the influence (DUI) for violating section 56-5-2930. The case 

was presented to a magistrate judge and a jury. The jury found Gordon guilty as 

charged. Gordon timely appealed his conviction. 

Using still-shot photos of the video, Gordon argued that the video violated 

section 56-5-2953(A) because he was out of sight and in the dark during the HGN 

test. The circuit court concluded that section 56-5-2953(A) requires the motorist's 

head to be visible during the administration of the HGN field sobriety test. Section 

56-5-2953(A) reads in pertinent part: 

(A) A person who violates Section 56-5-2930, 56-5-2933, or 56-5-

2945 must have his conduct at the incident site and breath test site 

video recorded. 

(1)(a) The video recording at the incident site must: 

(i) not begin later than the activation of the officer's blue lights; 

(ii) include any field sobriety tests administered; and 

(iii) include the arrest of a person for violation of Section 56-5- 
 

2930 or Section 56-5-2933, or a probable cause determination 

in that the person violated Section 56-5-2945, and show the 

person being advised of his Miranda rights. 

S.C. Code Ann. § 56-5-2953(A) (Supp. 2011) (emphasis added). The circuit court 

found Gordon's head was not "sufficiently visible through the entire administration 

of the [HGN] test." The circuit court reversed his conviction and dismissed the 

DUI charge. The State timely appealed to the Court of Appeals. 

 

The Court of Appeals affirmed in part, vacated in part, and remanded the 

case to the magistrate court. State v. Gordon, 408 S.C. 536, 759 S.E.2d 755 (Ct. 

App. 2014). The court concluded that "the circuit court correctly found the head 

must be shown during the HGN test in order for that sobriety test to be recorded, 

and we affirm that finding." Gordon, 408 S.C. at 543, 759 S.E.2d at 758. The 

Court of Appeals remanded the case to the magistrate court with the instruction to 

"make factual findings in light of the circuit court and our determination that the 

test must be recorded on the camera; specifically for the HGN test, the head has to 

be visible on the recording." Gordon, 408 S.C. at 543-44, 759 S.E.2d at 759. 

The Court of Appeals denied the State's petition for a rehearing.1 This Court 

granted the State's petition for a writ of certiorari to review the Court of Appeals' 

decision. 

II. Standard of Review 

In criminal cases, the appellate court sits to review errors of law only. State 

v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006). Thus, an appellate court is 

bound by the trial court's factual findings unless they are clearly erroneous. Id. 

"The cardinal rule of statutory interpretation is to ascertain and effectuate the 

intention of the legislature." Sloan v. Hardee, 371 S.C. 495, 498, 640 S.E.2d 457, 

459 (2007). "When a statute's terms are clear and unambiguous on their face, there 

is no room for statutory construction and a court must apply the statute according 

to its literal meaning." Id. In interpreting a statute, "[w]ords must be given their 

plain and ordinary meaning without resort to subtle or forced construction to limit 

or expand the statute's operation." Id. at 499, 640 S.E.2d at 459. 

1

 Additionally, the Court of Appeals withdrew its original opinion and substituted a 

new published one. Gordon, 408 S.C. at 536, 759 S.E.2d at 755. 
 

III. Discussion 

Whether the Court of Appeals erred in affirming the circuit court's 

decision to reverse Gordon's magistrate court conviction for driving under the 

influence? 

A. Argument 

The State argues the Court of Appeals misconstrued the decision of the 

magistrate as lacking sufficient findings of fact. Specifically, the State contends 

that the Court of Appeals "misapprehended or overlooked the clear and 

unambiguous language of the statute, which does not include any requirement that 

'the head must be visible on the recording' of an HGN field sobriety test." 

B. Analysis 

The State would have us review this case using the analytical framework of 

Murphy v. State, 392 S.C. 626, 709 S.E.2d 685 (Ct. App. 2011). The court in 

Murphy held that section 56-5-2953 only requires that the conduct of the motorist 

be recorded. Murphy, 392 S.C. at 631, 709 S.E.2d at 688. The Court of Appeals 

and the circuit court correctly distinguished Murphy from Gordon's case. In 

Murphy, the prior version of the statute at issue in this case was in effect. The 

prior version of the statute did not include the explicit requirement that the 

videotape include "any field sobriety tests administered." S.C. Code Ann. § 56-5-

2953(A)(1)(a)(ii)(Supp. 2011). The current version of the statute, which applies to 

Gordon, specifically requires that the officer record "any field sobriety tests 

administered." Based on this distinction, the magistrate erred as a matter of law in 

finding that the officer's recording was only required to show Gordon's conduct 

generally. 

The statute at issue in this case is clear and unambiguous and, therefore, this 

Court must give its words their ordinary meaning. The statute states that the video 

recording "must include any field sobriety test administered," which necessarily 

includes the HGN test. Considering the fact that the HGN test focuses on eye 

movement, common sense dictates that the head must be visible on the video. 

Accordingly, the circuit court's finding that the head must be visible does not 

amount to a hyper-technicality, but merely states the obvious. The Court of 

Appeals did not err in affirming this requirement. 
 

 

 

Here, the officer's administration of the HGN test is visible on the video 

recording. It is undisputed that Gordon's face is depicted in the video; it is 

axiomatic that the face is a part of the head. The officer's flashlight and arm are 

visible as he administers the test. Also, the officer's instructions were audible. 

Thus, the requirement that the head be visible on the video is met and the statutory 

requirement that the administration of the HGN field sobriety test be video 

recorded is satisfied. Therefore, the per se dismissal of the charge as discussed in 

Town of Mount Pleasant v. Roberts, 393 S.C. 332, 713 S.E.2d 278 (2011), and City 

of Rock Hill v. Suchenski, 374 S.C. 12, 646 S.E.2d 879 (2007) is not appropriate. 

Even if we assume that the video of a field sobriety test is of such poor 

quality that its admission is more prejudicial than probative, the remedy would not 

be to dismiss the DUI charge. Instead, the remedy would be to redact the field 

sobriety test from the video and exclude testimony about the test.2

 If that remedy 

is applied here, there is still sufficient evidence to present this case to a jury for 

resolution. The evidence included the breath alcohol analysis report, video of 

other field sobriety tests, and Gordon's statement that he had consumed four beers. 

Neither Gordon nor the State would have been prejudiced by the exclusion 

of the HGN test video or testimony because of the alleged poor quality of the 

video. Since the focus of the HGN test is the movement of the eyes, the jury 

would not have been able to determine if Gordon passed or failed by simply 

looking at this video. Moreover, the viewing of a video of an HGN field sobriety 

test has very little probative value to a jury because the eyes of the motorist are 

rarely, if ever, seen.3 

The remaining issues raised by Gordon concerning discrepancies with the 

breath test site video's date and time stamp are without merit. 

IV. Conclusion 

The Court of Appeals' decision is affirmed as to the requirements for video 

2

 It appears the solicitor unintentionally led the circuit court to believe that the 

HGN test was the only evidence against Gordon. 

3

 Of course, this would not be the case if actual eye movement is recorded. 
recording the HGN field sobriety test. The mandate to remand to the 

magistrate court for further consideration is vacated. Gordon's conviction is 

reinstated. 

TOAL, C.J., HEARN, J., and Acting Justice Allison Renee Lee, concur. 

PLEICONES, J., concurring in result only.