State v. Elwell
403 S.C. 606
S.C.2013Background
- Elwell was arrested for DUI in Chester County (2009) and taken to a breath test site.
- Arresting officer videotaped warnings, stated right to refuse, and requested a breath test; Elwell refused, and the breath test was videotaped.
- Video recording was turned off after the refusal, before the twenty-minute waiting period elapsed.
- Circuit court dismissed the case for noncompliance with section 56-5-2953(A)(2)(d).
- State appealed; court of appeals held subsection (A)(2)(d) does not require videotaping the twenty-minute waiting period if the arrestee refuses.
- This Court granted certiorari to resolve the discrepancy between Elwell and Hercheck outcomes and affirmed the appellate ruling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does § 56-5-2953(A)(2)(d) require videotaping the twenty-minute waiting period after a breath test refusal? | Elwell: waiting period must be videotaped; tape incomplete violates statute. | State: waiting period not required when no breath test administered; pre-test video not always necessary. | No; waiting period need not be videotaped if no breath test is given. |
Key Cases Cited
- State v. Parker, 271 S.C. 159 (1978) (test for laying a breath test foundation)
- State v. Jansen, 305 S.C. 320 (1991) (precautions futile if no test administered)
- Town of Mt. Pleasant v. Roberts, 393 S.C. 332 (2011) (purpose of § 56-5-2953 is to create direct evidence of a DUI arrest)
- City of Rock Hill v. Suchenski, 374 S.C. 12 (2007) (remedy for statutory noncompliance may be dismissal)
- State v. Baccus, 367 S.C. 41 (2006) (errors of law standard and appellate review framework)