The Supreme Court of South Carolina 

The State, Petitioner, 

v. 

Phillip Wesley Sawyer, Respondent. 

Appellate Case No. 2011-201206 

ORDER 

After careful consideration of the petition for rehearing, the majority of the Court 

is unable to discover that any material fact or principle of law has been either 

overlooked or disregarded, and hence, there is no basis for granting a rehearing. 

However, we withdraw the original opinion filed June 4, 2014, and substitute the 

attached opinion. The only change is the removal of a citation to the Court of 

Appeals opinion in State v. Gordon, 2014 WL 1614854, which was withdrawn 

after our opinion was filed. Accordingly, the petition for rehearing is denied. 

s/ Costa M. Pleicones J. 

s/ Donald W. Beatty J. 

s/ Kaye G. Hearn J. 

We would grant the petition. 

s/ Jean H. Toal C.J. 

s/ John W. Kittredge J. 

Columbia, South Carolina 

August 27, 2014 
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, Circuit Court Judge 

Opinion No. 27393 

Heard November 5, 2013 – Withdrawn and Substituted August 27, 2014 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certiorari to review an unpublished Court of Appeals decision that affirmed the 
 

 

 

circuit 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 portion 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, respondent was taken to the Spartanburg County Jail by 

Deputy Evett, who picked him up following a traffic stop made by Lt. Woodward. 

Evett, a certified Data Master operator, placed respondent in the "subject test area" 

which is a room that adjoins the Data Master room. The rooms are separated by a 

glass panel. The deputy 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 Deputy 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 audio 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 requirements of S.C. Code Ann. § 56-5-2953(A). 

Section (A) required that a person charged 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 within 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 

medical treatment considered necessary by licensed 

medical personnel; 

1 Subsection A of this statute was rewritten 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 conducted within 3 hours, and eliminates the 

requirement that the video include the reading of Miranda rights at the breath test 

site. 
(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 officer administers the breath 

test, the person's conduct during the twenty-minute pretest waiting period must be videotaped. 

The circuit court first held that the videotape itself must be excluded because "the 

videotape has no audio of the conversations between the testing officer and 

[respondent] concerning such matters as his Miranda warnings, the explanation of 

implied consent or other matters that may have been discussed 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 test, 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 section 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 videotape because . . . exigent circumstances 

existed." (emphasis supplied). The judge held "an exigency" required an 

emergency situation, or one requiring immediate 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 exigent circumstance here. The court also 

noted 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 first that since a videotape was produced, no 

consideration of Deputy Evett's "exigency" affidavit was necessary.2 The State 

also argued that any defects in the audio portion 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 trial 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), which permits the court to consider "other 

valid reasons" for the lack of a videotape 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 site, 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 Appellate Case No. 2011-201206). 

 On January 9, 2013, the Court granted certiorari 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 

2 We note that, assuming it was error to consider 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). 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. 
 

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 breath test meet the requirements 

of § 56-5-2953(A) as it existed in September 2007? 

ANALYSIS 

The State argues that the statute only required that the individual's "conduct" be 

recorded, and that conduct under the statute 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). 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 conduct but with the content of the statutorily required 

warnings. At the breath test site, the 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 conducting 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 person being informed that he is being 

videotaped, and that he has the right to refuse the test." § 56-5-2953(A)(2)(b). A 

silent video simply cannot meet these statutory requirements.4 

4 Contrary to the dissent's contention that the video shows respondent being read 

his Miranda warnings, being told the matter was videotaped, and being informed 

of his right to refuse, all that the video shows is the officer's lips moving. As for 

respondent's failure to challenge the contents of the officer's warnings, at this 

juncture the sole issue before the circuit court was whether the silent video 

complied with the statute. Further, respondent 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. 
The State argues that this defect in the videotape goes only to its weight, not its 

admissibility. Here we are concerned with a statute which governs the 

admissibility of certain 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 officer submits a sworn affidavit 

certifying that the videotape equipment 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 person needed emergency medical 

treatment, or exigent circumstances 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 generally affect admissibility, as the State 

maintains, the Court has interpreted the statute to require 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 

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 amended § 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 determined this tape did not satisfy § 56-5-

2953(A). The Court of Appeals properly affirmed 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. TOAL, C.J., dissenting in a separate 

opinion in which KITTREDGE, J., concurs. 

5 The dissent maintains that a prejudice analysis 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 statutes 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 State 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 suppressing the evidence at issue 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 Court 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 (1976) (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-compliance 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-compliance 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 the circuit court committed an error of 

law in failing to engage in a prejudice analysis upon finding that the video 

7

 The State argues that the video recording satisfied section 56-5-2953 because the 

video recording captured all conduct and events required by the statute. In 

addition, the police officer who administered the breath test submitted an affidavit 

to the circuit court indicating that exigent circumstances existed under 56-5-

2953(B) because the audio failure 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 breath test is administered to ensure the 

reliability of the breathalyzer 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 majority's assertion, the General Assembly did not specify a 

remedy in section 56-5-2953 for failure to comply with the statutory requirements. 

Subsection (B) merely provides that noncompliance with the statute "is not alone a 

ground for dismissal" if the video recording qualifies under an exception in 

subsection (B). S.C. Code Ann. § 56-5-2953(B); see also Suchenski, 374 S.C. at 

16, 646 S.E.2d at 881 (finding that failure 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 statute's failure to specify a remedy for 

noncompliance does not preclude a prejudice analysis, as the majority 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 violation 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 

Miranda10 warnings, the officer informing Respondent of the video recording and 

his right to refuse the breath test, and the breath 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 malfunctioning of the audio, the video recording 

nevertheless creates evidence of Respondent's breath test. Significantly, 

Respondent has challenged neither the validity of the Miranda warnings he was 

given nor any other aspect of the breath test procedure. Respondent has not 

asserted that bad faith or a bad motive existed 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 impact on the present 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 dismissal 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, consequently, 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 generally 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 constitutional 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 prerequisite 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 case makes no mention of suppression of 

evidence, addressing only dismissal of DUI charges as a possible remedy for noncompliance 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 test results along with all evidence or 

testimony related to the breath test.11 Even if the failure to comply with the statute 

11 I disagree with the majority'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 video recording, the testimony or evidence 
 

 

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 contrary, section 56-5-2953 provides that 

"[n]othing in this section may be construed 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 the 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. 

that a breath test was offered or administered, and the results of the breath test. In 

my opinion, if the State contended the circuit court erred in excluding the video 

recording only, the State's argument would have only mentioned the video 

recording.