*1 PART, AND PART, IN REVERSED IN AFFIRMED REMANDED. A.J., CURETON, concur. KONDUROS, J.,
FEW, C.J., MURPHY, Appellant, Denise STATE, Respondent. The
No. 4816. Carolina. Appeals of South Court Jan. 2011. Submitted April Decided *2 Columbia, for Appellant. O’Leary, A. John Erwin, Respondent. for Blythewood, Donald Rachel THOMAS, J. driving under her conviction Murphy appeals
Denise (DUI). We affirm.1 influence
FACTS Jerry stopped Murphy’s Rothell Officer April On Rothell swerving weaving. her noticing vehicle after Murphy arrested three field tests and conducted Datamaster breath test revealed subsequent A DUI. camera in alcohol level of 0.13. A dashboard video had a blood stop. vehicle recorded the traffic Rothell’s *3 a straight was made to walk During stop Murphy the traffic test, However, only videotape this during line. and in essentially up, portions her from the knees recorded she walked to the limit of the body half her only displayed addition, gaze nastag- In a horizontal camera’s field of view. conducted, in which was made to follow Murphy mus test was with her Rothell pen eyes. the movement of after Murphy in the where stood spot conducted this test car, test, her to the on line with back completing straight of view.2 cross- of the dashboard camera’s field On fringe examination, explained: Rothell you car and completely
I have done it in front of the could checking it. The reason for it is it’s wouldn’t have seen I around and eye. an of the turned involuntary twitching to that because the blue her back toward the car do pointed in and out and create with [light] going problems is to flash I her That’s the reason moved to eyes focusing. her and made sure had her turn her back to the car side and argument pursuant Rule without oral to 1. We decide this case SCACR. videorecording Contrary Murphy’s allegation, upon review of the to camera, appear produced by Rothell does not to affirma- the dashboard removing Murphy tively from the view of the camera. that she didn’t feel like the bothering were her at all.
Pre-trial, Murphy unsuccessfully moved to suppress (1) traffic stop sobriety tests because two of the field tests were not conducted in full of view the camera and the video camera continued recording after she was placed Rothell’s vehicle. police
Additionally, Murphy’s moved to unsuccessfully suppress the results of her Datamaster breath alcohol test because the Datamaster device used in her required case sixteen repairs days trial, after her test was conducted. At cross- examined Rothell in detail about repair SLED’s records for device, the Datamaster breath alcohol test which Murphy from acquired SLED’s website.
The jury found Murphy guilty DUI. Murphy appealed court, the circuit and the circuit court affirmed. This appeal followed. APPEAL
ISSUES ON I. Did the circuit court err in failing suppress the
incident site videotape Murphy’s traffic stop? II. Did the circuit court err in failing to Mur- suppress
phy’s breath alcohol test results?
STANDARD OF REVIEW of review scope “[0]ur is limited to correcting circuit court’s order for errors of law.” City Rock Hill v. Suchenski,
LAW/ANALYSIS Videotape I.
Section 56-5-2953 of the South provides: Carolina Code (A) A 56-5-2930, 56-5-2933, who person violates Section or 56-5-2945 must have his conduct at the incident site breath test site videotaped.
(1) The at the videotaping incident site must: the officer’s
(a) activation of later than the not begin a for person arrest of the after the and conclude 56-5-2933, 56-5-2930, probable or a violation of Section 56-5- violated Section that the person cause determination 2945; and rights Miranda
(b) advised of his being person include the administered, if the tests tests are before are administered. 56-5-2953(A) (2006).3 §Ann.
S.C.Code Remedy under 56-5-2953 available Section a. note we must by party, raised either although not Initially, matter, inconsis- is Murphy of this course throughout that magistrate, Before the seeks. remedy as to the she tent appeal on videotape, argued “suppression” for Murphy erred in magistrate argued court Murphy to the circuit on to this court appeal and now charge, to “dismiss” failing failing “suppress” erred in to the trial court argues Murphy the video. (A) statute, videotapes “[t]he subsection
Under pursu- site are admissible and of the breath test incident site criminal, Evidence Rules of ant to the South Carolina to the action.” administrative, by any party civil proceeding or 56-5-2953(A). However, remedy § Ann. S.C.Code Rock City is dismissal. See with the statute noncompliance Suchenski, Hill v. remedy (“[Dismissal appropriate is an charge of the DU[I] (A) is a violation of subsection § 56-5-2953 where by provided (B) Ann. S.C.Code by exceptions.”); subsection mitigated 56-5-2953(B) ... produce that (stating “[f]ailure (A) ground not alone a is required by ] videotapes [subsection met]”). However, are exceptions ... if [certain for dismissal suppress asked of the fact that regardless the issue of the trial we find noncompliance, this is before properly of the statute interpretation court’s Further, the statu- holding of our light court. infra —that (A) met—the inconsis- were of subsection tory requirements Act No. Feb. 2009. See amended effective Section 56-5-2953 was Thus, applica- statute is not the amended 2008 S.C. Acts 1682-85. ble to this case.
681 in remedy sought tencies are not of to this consequence appeal. sobriety
b. Failure to record a full view of all field tests Murphy alleges incident cite does with comply the statute because it fails to “record most sobriety field tests.” We disagree. “All statutory rules of construction are subservient the maxim that legislative prevail intent must if it can be Gaines, reasonably discovered in the language used.” State v. 23, 32-33, Here, the provides person statute “must have his conduct at the incident site and breath test site The videotaped.” “(a) at the incident site videotaping not later than begin the activation of ... and conclude after the arrest “(b) ...” and the person being include advised of his Miranda rights any administered, before field sobriety tests are if the tests are § administered.” S.C.Code Ann. 56-5- 2953(A)(l)(a)-(b).
Therefore, recorded, in to what must be regard plain language of the statute is not violated as as the long recording (1) captures the accused’s conduct and warnings Miranda tests, prior sobriety to field if such tests occur. does not allege the video fails to her advised of capture being Miranda, but that the requires statute that she remain full view and record all field tests. sobriety nothing plain of the statute indicates that an accused language remain in full view of the camera for the duration of the Rather, encounter. the statute only requires her “conduct” be behavior, recorded. is generally Conduct defined as one’s action, (2d ed.2001). or Dictionary demeanor. The Oxford Failure of the video to maintain a full view of the accused for sobriety duration of a field test in which she is made to line, instance, behavior, walk a does not fail to her display demeanor, Thus, state. an accused need not general remain in full view of the camera at all in order for the times recording capture her conduct. speaks by stating
The statute to the tests the video person rights must “include the advised of his Miranda being administered, before tests are if the tests 56-5-2953(A)(l)(b). Ann. are administered.” S.C.Code on such tests performance certainly an individual’s While *6 at the of his or her “conduct” parcel part would be mentioned, recording of the tests site, an unbroken incident Therefore, recording conduct. capture necessary is not captures it sobriety provided tests all field display need not conduct.4 the accused’s of the statute does the plain language we find
Accordingly, view a continuous full recording capture that the not require Rather, accused, tests. sobriety or all field capture of the met, the video need all other are requirements provided reason we find the conduct. For this record the accused’s with complied the video finding did not err trial court 56-5-2953(A). section upon Terminating the video arrest
c. when Next, the statute was violated Murphy argues was in the placed when she stop Rothell failed to disagree. cruiser. We police at the incident site videotaping “The provides:
The statute ... (a) the activation of not later than begin person....” the arrest of the S.C.Code and conclude after added). 56-5-2953(A)(l)(a) (emphasis §Ann. “must ... recording that the alleges provision the record- after the arrest” Rothell to end required
conclude However, in cruiser. police when she was in the ing placed Dowd, court affirmed a defendant’s supreme State conviction, not conclude the arrest did resisting holding arrest 268, jail in his cell. 306 S.C. until the defendant was locked argument In rejecting S.E.2d the court custody, taken into upon being that the arrest ended only when the process, arrest as “an finalized ongoing defined is confined.” Id. properly defendant section 56-5-2953 ex- amended in the current version of 4. As recording sobriety Ann. pressly requires of field tests. See S.C.Code ("The 56-5-2953(A)(l)(a)(ii) recording at the inci- (Supp.2010) video administered."). We ... tests dent site must: include language legislature's plain of the amendment of note that recording bolsters require the of field tests further statute to version, language prior in effect at the position plain our that the action, recording require of all tests. time of this did not Accordingly, we find the statute did not require video be terminated upon Murphy being placed the police cruiser. Thus, the trial court did not err in finding the video recording complied with the statute.
II. Suppression of the breath test
Finally, Murphy argues the trial court erred in failing to suppress the results of her Datamaster breath in light test of documents from the SLED website that the machine was repaired sixteen days after her test. disagree. We
Section 56-5-2954 of the South Carolina requires: Code The State Law Enforcement Division and each law enforce- ment agency with a breath testing site is required maintain malfunctions, a detailed record of repairs, com- plaints, or other problems breath regarding testing devices *7 at each site. These records must electronically be recorded. records, These remarks, all including any and must be entered into a breath testing device and subsequently made available on the State Law Enforcement Division web site. S.C.Code Ann. 56-5-2954 (Supp.2010).
First Murphy argues “there are no local records as required the [and] SLED records are erroneous and misleading.” Landon, in State v. our supreme court found that section 56-5-2954 by “is satisfied the fact that SLED’s inter- net records are available at the testing site itself.” 370 S.C. Moreover, S.E.2d Murphy has failed to include the SLED records in the record on appeal.
Next, Murphy argues, ... “[d]espite finding that the [a]ppellant had made a prima facie showing of as prejudice ” Landon, required in the result not suppressed.... [was] Landon,
In the court supreme held: aware, however, We are that regarding information the DataMaster is within the exclusively State’s control. Be- cause SLED’s failure to provide a detailed record signifi- cantly hampers the defendant’s ability prejudice show in situation, this we hold that once a prima defendant makes a facie showing prejudice, of the burden shift to to prove State the defendant was not prejudiced, by either providing records to show the machine was working proper- contemporaneous other byor some testing time of
ly at the evidence. at 663. 634 S.E.2d
Id. at made a prima that she case, Murphy argues In this that appears it Interestingly, of showing prejudice. facie motion pre-trial to Murphy’s in response court agreed trial results, the trial court stated: the test to suppress can something that motion.... It’s deny your going I’m the number it on basing I I’m guess cross-examined and be test, ... subject were conducted between tests that on this made repair was some date that there and the has / like the State Anyway, datamaster. satisfied feel is a issue as jury it still I guess Landon but requirement of of the datamaster. weight want to treat they to how added). (emphasis showing that a facie
First, prima to state compelled we are per test results inadmissible not render the does prejudice to the to show the burden State shifts simply se but time of the test. See at the properly was working machine Therefore, if even Landon, at 663. at a prima that she made contention accept Murphy’s we were to allege she does not because showing prejudice, facie under satisfied its burden finding the State trial court erred Landon, which to reverse this court no basis on she offers trial court. ruling of the allege does not
However, notwithstanding that met its burden under the State finding trial court erred the trial court’s conclu- Landon, supports we find the evidence *8 that the evidence presented that it did. The State sion checks to self-diagnosing a series of Datamaster conducts to and subse- correctly prior both operating that it is insure In this evidence testing. regard to actual breath quent in con- question that the Datamaster exists to demonstrate times after twenty-five checks at least this series of ducted or need for a malfunction indicating test without Murphy’s repair. claim that accept Murphy’s if we were to even
Accordingly, we find the of showing prejudice, a facie prima she presented met its that State the determination supports evidence
635 burden and that proper under Landon the issue was one jury.
CONCLUSION above, For the reasons stated the ruling is AFFIRMED.
GEATHERS, J., concurs.
PIEPER, J., concurring.
I in concur decision to affirm. I resulting would resolve the videotape issue on preservation grounds. review,
“In order for an issue to be preserved appellate it must have been raised to and ruled the trial upon by judge.” Dunbar, 138, (2003). 691, State v. 356 S.C. 587 S.E.2d 693 When the circuit court is in an acting appellate capacity, appellant must raise an issue to the circuit court order to State, 266, 270, preserve Rogers the issue. 594 Moreover, (Ct.App.2004). S.E.2d an preserve issue an appellant argue the same at trial grounds as Smith, those he argues on State v. appeal. S.C. During pretrial motions before the magistrate, Murphy moved to suppress the because of a violation of section 56-5-2953 of the by South Carolina Code tests, all recording sobriety field also asked court, that the case be dismissed. to the circuit appeal On be a Murphy argued charges his should dismissed based on statute; however, remedy violation the same of sup- pression on the of not all ground recording tests was never the circuit by addressed court. The circuit court did Murphy’s allowing post- address issue about evidence, arrest video of the defendant into as well as the issue about the datamaster Murphy subsequently records. court, to this all appealed basing appeal the issues on on the court’s failure to suppress videotape. Because some of Murphy’s the issue of arguments changed part, suppression tests, fully video for not the field taping case, opposed appear dismissal of does not to be properly before us. Just as a motion to strike evidence does *9 mistrial, a request for a request a automatically preserve automatically preserve request does not suppression merits Thus, I not reach the
dismissal, versa. would and vice tests issue on the Murphy’s suppression using addressed the issue circuit court because the was appropriate. of whether dismissal perspective on the majority opinion remaining portions As to issue, I the datamaster records issue and taping post-arrest majority. concur with the S.E.2d 690 REVENUE, Appellant, DEPARTMENT OF CAROLINA
SOUTH RIO, Level, Respondent. Club CLUB d/b/a
No. 4817. Appeals Carolina. Court of of South Submitted March 2011. April
Decided