State v. Elwell
396 S.C. 330
S.C. Ct. App.2011Background
- Elwell was arrested for DUI on January 3, 2009 and taken to a breath-testing site.
- The officer advised Elwell of videotaping, provided Miranda rights, and offered a breath test, which Elwell refused.
- The video recorder was turned off after Elwell refused and before the twenty-minute waiting period elapsed.
- Elwell was indicted for DUI, second offense, and moved to dismiss, arguing the waiting period should have been videotaped in its entirety.
- The trial court dismissed the charge, ruling the twenty-minute waiting period must be videotaped even if the test is refused.
- The State appealed, arguing the waiting period videotaping is not required when a breath test is refused and exceptions apply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does 56-5-2953(A)(2)(d) require videotaping the twenty-minute waiting period when a breath test is refused? | Elwell argues statute requires twenty-minute video if waiting period is required. | Elwell contends waiting period not required when test is refused; video not required. | Yes, waiting period videotaping is not required if test is refused. |
| If the waiting period videotaping is not required, is a refusal a valid reason to stop videotaping under 56-5-2953(B)? | Not necessary to address because issue one controls. | Refusal could be a valid reason to stop videotaping under the subsection. | Court did not need to decide; reversed on issue one. |
Key Cases Cited
- State v. Parker, 271 S.C. 159 (1978) (implied consent waiting period and breath test foundation)
- State v. Jansen, 305 S.C. 320 (1991) (waiting period not required if test refused)
- State v. Sweat, 386 S.C. 339 (2010) (statutory interpretation and practical purpose)
- Town of Mount Pleasant v. Roberts, 393 S.C. 332 (2011) (strict construction of §56-5-2953)
- State v. Branham, 392 S.C. 225 (Ct.App.2011) (statutory interpretation under §56-5-2953)
- State v. Long, 363 S.C. 360 (2005) (legislative intent in interpreting statutes)
- State v. Baker, 310 S.C. 510 (1993) (breath test reliability and pre-test procedures)
- State v. Winkler, 388 S.C. 574 (2010) (standard of review in criminal appeals)