*1 in compe- Camp was closing attorney. as the Camp retain its right represent he have a nor did Springs tition with Camp no since Further, deception alleged there is borrowers. him to deal with on loan refused directly Springs was told closings. insufficient to a SCUTPA complaint find state Camp’s alleged. act Accord- deceptive because no unfair or
violation on this Appeals’ the Court of issue. ingly, ruling we reverse in part. reversed part; Affirmed Finney Toal, JJ., C.J., Harwell, Chandler, concur. STATE, Johnny CRIBB, Appellant. Respondent Raymond (2d) 306)
(426 S.E. Supreme Court *2 Morgan Hearn, Jr., L. Martin M. George both Hearn, Martin, & Brittain appellant. Conway, for Medlock,
Atty. Gen. T. Atty. Travis Gen. Donald J. Deputy Zelenka, Coombs, Attys. Asst. Gen. Harold M. Jr. Salter, III, Columbia, William Sol. Edgar Ralph J. Wil- son, Conway, respondent. 21, 1992. Sept.
Heard 14, 1992.
Decided Dec. Chief Justice:
Harwell, (Cribb) Johnny Raymond Appellant was convicted of felоny driving three counts of under the influence. He chai- that the trial erred alleging by the convictions lenges test by failing a blood alcohol the admission of allowing of a lesser included offense and remand. reverse
1. FACTS morning 24,1990, Cribb drove early August In the hours against a red while ex- signal his car an intersection through vehicle, limit. another seri- He collidedwith ceeding speed scene, occupants. Cribb left its three ously injuring a friend from whose nearby pay to a and called phone, walked had She met him near thе wreck scene departed. home he just he at- where Georgetown Hospital and drove him A of blood personal physician. tended his diagnosing drawn for use in Cribb’s medical condition. thereafter, from the Patrol trav- Shortly troopers Highway to continue Hospital investigation. eled to their Georgetown accident, with Cribb to discuss the but did troopers met *3 a At met point, troopers him with crime. some also and asked him to draw a vial of blood physician with Cribb’s to the Law Divi- be tested for alcohol Enforсement (SLED). sample, sion blood the drawing Rather than a second on the that had doctor ordered a blood alcohol test for later ob- Troopers been drawn earlier diagnostic purposes. tained arrest Cribb on the test result. warrants fоr based trial, prohibit introduction of the attempted
At Cribb troopers that the vio- by asserting blood alcohol test result custody that implied lated the consent statute and the not established. allowed al- State to introduce test result as evidence of Cribb’s rejected intoxication. trial also Cribb’s con- leged included offense of tention a lesser felony DUI.
II. DISCUSSION A. Implied Consent Statute Application of first alcohol asserts that the result of blood test is because with the police comply implied inadmissible did not statute, consent 56-5 2950 As a Code Ann. matter, ap- threshold we must determine whether statute where, here, not in plies the defendant is at the 56-5-2950(a) time the chemical is requested. test Section pro- vides:
Any person operates who motоr a vehicle this State is given considered to have consent to chemical tests of his breath, blood, or urine for determining purpose arrested presence alcohol for offense drugs if out of arising alleged acts to have been whilе committed the person was a motor vehicle under the influ- operating ence alcohol, drugs, or a combination of Any them. test must administered at the of a direction law enforce- ment officer who has apprehended a for operating a motor vehicle in this State while under the influence alcohol, a drugs, or combination of them. At the direction added.) of the arresting officer____(Emphasis Cribb contends that section 56-5-2950 is time a triggered any law enforcement officer who is a DUI investigating possible offense requests disagree. chemical analysis.
When interpreting statute, primary this Court’s function is to ascertain the intention of the legislature. Gilstrap Budget v. S.C. and Control Board, The Court must clear unam give biguous terms their statutory plain ordinary meaning resorting without to subtle or forced construction to limit or expand operation. statute’s view,
In our references arrest and apprehension, when their given plain and ordinary meaning, indicate the legislature intended to limit the operаtion 2950(a) section 56-5 testing evidence under after influence an arrest been effected.1 Accordingly, has 56-5-2950(a) we find that section to this case inapplicable because Cribb was not until arrested some time after the *4 blood alcohol test.2 1 test, that We note had Cribb withheld to as consent the blood he could against any attempt suspend sert as a non-arrest defense his driver’s li 56-5-2950(e). cense. See 2 statute, controlling prearrest investigation gov the absence of a is by may highly erned the сommon law search and seizure. Police seize evanescent evidence effecting without warrant before an arrest when there probable
is Cupp cause to make the arrest the search. at time of the See v. (2d) Murphy, 291, 412 U.S. 93 S.Ct. 36 L.Ed. (1989). S.E. not whethеr We do consider Williams,' police rights action in this case violated because Cribb Cribb’s constitutional probable did not raise the issue of lack of cause at trial. Custody
B. Chain that the blood next asserts the Cribb agree. We sample was not establishеd. his to the emer- Cribb admission upon
Two nurses attended the other nurse One the nurses testified that room. gency (IV) it to Cribb and that an intravenous solution administered drawn the adminis- customary was for blood IV re- IV. nurse who administered the did not tering the that she drew his Cribb, call from but assumed drawing blood the that was her standard she started IV because blood when technician who drew Cribb’s The lab did know procedure. the how it transferred to lab. Neither Cribb’s blood or the sample the label the blood discloses medical records nor on it to lab. sample who the and the person(s) transported drew sev through the substance has analyzed passed Where it to conjecture evidence must not leave hands, eral the was done with it as to who had the substance what Pellum, v. analysis. Benton tаking between (1957). party offering evidence far establish, at least as a com required practicable, evidence, from the time the plete tracing possession chain body final analysis. is taken from human to the specimen persons at аt 537. The of the who identity See have handled the evidence must be established. Raino Co., Tire Rubber Goodyear While admission of evidence is within the discre it is we have that an abuse judge, tion of trial held to admit the results a blood alcoholtest of discretion sealed, labeled, of those who and trans identity where the the blood not established. State ported in the The evidence this does not han identify persons record of case those who dled blood the time it was until it from drawn the time Accordingly, wе conclude tested. trial admitting discretion in alcohol abused his blood test. Lesser Included C. Offenses that reckless is a in- finally contends lesser DUI, erred in cluded offense disagree. to so failing jury.
523 A lesser included offense is one that no requires proof bеyond that which is required for conviction of the Dobson, offense. State v. greater S.C. 551, 279 (2d) (1983). 752 The greater offense must all include the ele of Fennell, lesser. See State v. ments 263 S.C. 209 (1971). S.E. 433
Felony DUI of requires proof three elements:
1) the actor a drives vehicle while under the of influence
alcohol and/оr drugs; 2) the actor does an act forbidden lawby neglects or
duty imposed by law; and 3) the act or neglect proximately great causes in- bodily or
jury death to another person. State v. Grampus, 395, 397, (1986). See also S.C. Code Ann. (1991). § Clearly, 56-5-2945 required recklessness suрport felony conviction for DUI. However, we have held that involuntary manslaughter3 homicide,4 and reckless require proof which of recklessness, are lesser included v. King, of felony offenses DUI. (1986). argues implicit King ais finding recklessness is an felony element of DUI. Thus, according Cribb, because involuntary man- slaughter, homicide, reckless and reckless driving5 share the of common element recklessness, reckless also must abe lesser included offense felony of
Our decision to include involuntary manslaughter аnd reckless homicide as lesser included offenses of DUI was made as a policy. matter of at 372, at 323. because one can construe King hold that recklessness is an element of felony DUI, it directly person A negligence, must commit criminal disregard defined reckless safety others, of guilty involuntary of to be of manslaughter. S.C. Code (1985). §Ann. 16-3-60 implies doing Recklessness negligent of a act know Rachels, ingly. (1950). 1,8, any “When the person proximate death of year ensues within one aas re injury of sult disregard received vehicle in reckless others, safety person operating guilty so such vehicle shall be § reckless homicide.” S.C. Code Ann. 56-5-2910 “A who drives a vehicle in such a manner as to either a indicate disregard safety persons willful or property guilty wanton for the driving.” S.C. Code Ann. 56-5-2920 of section unambiguous language with the clear and
conflicts *6 King reck- overrule and hold that Accordingly, 56-5-2945. we are not lesser in- involuntary manslaughter less homicide felony of DUI. cluded offenses felony DUI, the us, we find that Turning to the issue before all elements of reсkless offense, does not contain greater DUI) (felony Compare lesser offense. 56-5-2945 driving, (reck- DUI) with (elements Grampus felony of 56-5-2920 Therefore, is not a less we hold driving). felony DUI, and we affirm the trial offense of lesser included requested charge. of judge’s refusal Cribb’s in rul- conclusion, find that the trial was correct In we DUI in- pre-arrest section 56-5-2950 is ing inapplicable not a lesser included and that reckless vestigations of the trial abused his offense admitting discretion in the blood alcohol test into evidence bе- sample for the blood was not estab- cause the chain case re- Therefore, the conviction is reversed and the lished. manded for a new trial.
Reversed and remanded. Finney JJ.,
Chandler, Moore, concur. J., Toal, separate opinion. dissents Toal, Justice, dissenting:
I rеspectfully dissent. I dis- majority’s opinion, While I concur in with the part analysis custody. with the agree majority’s Williams, State majority mechanically applies (1990), regard without to the facts this earlier I provide consistency decisions, case. To with our deсi- judge’s would accord a far deference to greater would, therefore, affirm. sion to admit evidence. I the trial court has to allow evidence in Ordinarily discretion evidentiary it. would today, or to exclude Until this discretion discretion, an or a not be disturbed unless there was abuse Gregory, legal prejudiced appellant. which error, also Sosebee, See State v. (1941); S.C. Sullivan, State v. (2d) 838 This rule is now in doubt be- the majority issue, cause would reverse on an evidentiary discretion, where record shows that there nowas abuse of law, any error which prejudiced appellant. The facts this case are specific can distinguished Williams, the facts in from the blood was taken on a busy night major in a trauma metropolitan center, question and a existed as to the identification of sample’s donor. In the present case, only one blood sample evening, was drawn the entire and there was little question that it did belong appel lant. The facts show that the testing done at Georgetown Memоrial Hospital, where the taken, without being facility, sent to outside testing and that there was no misidentification of the sample. solely relies majority *7 lack testimony on the about which marked the sam ple, not that there was sample’s error as origin. Thеre can question be no that an underlying outline of the facts in both clearly cases distinguish two.
Once State v. Williams is distinguished, then it becomes necessary to examine the chain of custody under “practica ble” test. This test that a requires complete custody be established “at least as far as practicable.” 290, 293, 376 297 S.C. (1989); Kahan, State Pol lard, Pellum, 233 (1973); Benton v.
Interestingly we with enough, dealt the reverse issue in a Goodyear decision. Raino v. Tire and Rubber very recent Co., (1992), this Court held that a judge’s evidence, еxclusion of based on chain of sim- ilar to the one presented here, was within his sound discre- real distinction with Raino and the case at bar only tion. The is that here the trial judge chose to admit the evidence. clearly facts this case suppоrt judge’s decision to admit the blood alcohol evidence. There was evidence in the which, record “practicable” test, when considered against established the State went far they as could to establish the chain custody. exercised his discretion and the record supports his decision. For these I reasons, must re- spectfully dissent, and would affirm the trial judge consistent decision in Raino. with our