STATE of South Carolina, Appellant, v. James Eugene HUNTLEY, Respondent.
No. 25428.
Supreme Court of South Carolina.
Heard Nov. 27, 2001. Refiled May 6, 2002.
Rehearing Denied May 6, 2002.
562 S.E.2d 472
Francis L. Bell, of Bell, Tindall & Freeland, of Lancaster, for respondent.
ORDER WITHDRAWING ORIGINAL OPINION, SUBSTITUTING SUBSEQUENT OPINION, AND DENYING PETITION FOR REHEARING
PER CURIAM:
Opinion No. 25428, filed March 11, 2002, is hereby withdrawn and the following opinion is substituted. After careful consideration, the Petition for Rehearing is denied.
/s/ James E. Moore, J.
/s/ John H. Waller, Jr., J.
/s/ E.C. Burnett, III, J.
I would grant the petition to the extent it raises issues related to my dissent.
/s/ Costa M. Pleicones, J.
BURNETT, Justice:
On May 27, 2000, Respondent James Eugene Huntley (Huntley) was arrested for driving under the influence. After the jury was sworn, Huntley moved to suppress the results of his breathalyzer test, arguing the test operator used a different simulator solution test levеl than that set forth by law. The trial judge agreed and suppressed Huntley‘s breathalyzer results. The State appeals.1
ISSUE
Did the trial judge err by suppressing Huntley‘s breathаlyzer results?
ANALYSIS
In 1998, the General Assembly passed Act No. 434 (Act 434) which made various changes to provisions of the driving under the influence law. One change amended
Months later, at the behest of the then Clerk of the Senate, the Code Commissioner amended Act 434. In relevant part, the amended versiоn provides: “before the breath test is administered, a ten one-hundredths of one percent simulator test must be performed and the result must reflect a reading between 0.095 percent and 0.105 percent.”
The parties disagree which version of Act 434 is applicable for purposes of Huntley‘s prosеcution. The State argues the amended version of Act 434 applies; Huntley contends the original version of Act 434 applies.4 We agree with Huntley.
One duty of the Code Commissioner is to “[c]ompile the public statutes of the State.”
In amending Act 434, thе Code Commissioner changed the simulator solution test level and its corresponding range of accuracy. In addition, the Code Commissioner increаsed the alcohol inference level throughout
Evеn though the trial judge properly concluded the original version of Act 434 applied, we nonetheless conclude the trial judge erred by suppressing Huntley‘s breathalyzer results.
The purpose of a simulator test is to ensure the breathalyzer machine produces an accurate, reliable breath-alcohol reading, and ultimately, an accurate blood-alcohol analysis.
The alcoholic breath simulator is a part of the breathalyzer devised for the purpose of providing a standard alcohol-air mixture. By mixing an amount of absolute alcohol with distilled water, a desired conсentration of breath alcohol may be achieved. The breathalyzer operator, by pumping room air through the simulator solution, is able to dеtermine whether the breathalyzer machine is functioning properly. For instance, if the simulator solution contains .10 of one percent alcohol, room air pumped through the simulator will result in a corresponding reading on the breathalyzer machine.
State v. Parker, 271 S.C. 159, 162, 245 S.E.2d 904, 905 (1978) (emphasis added); see 2 Richard E. Erwin Defense of Drunk Driving Cases § 18.04 (2001) (simulator test provides a known quantity of alcohol to the testing device to determine the capability of the device to properly analyze a sample at the time of the subject tеst); see also State v. Squires, 311 S.C. 11, 426 S.E.2d 738 (1992) (public purpose behind implied consent law is to facilitate compilation of reliable evidence in drunk driving prosecutions).
Thе alcohol level in the simulator test is used to determine the reliability of the breathalyzer machine‘s test results; it neither calibrates the breathalyzer machine nor affects the capability of the machine to properly measure the subject‘s blood-alcohol level. See State v. Parker, supra. Accordingly, as far as reliability is concerned, it is irrelevant whether the simulator test is run using an alcohol level of .10 or .08 percent. What is relevant is that the machine accurately measures the percentage of alcohol in the simulator test
Even if the breathalyzer operator did not use the simulator test solution at the alcohol concentration required by Act 434, Huntley was not prejudiced. There is no question the breathalyzer machine was operating properly and its results were reliable.5 Consequently, the trial judge erred by excluding Huntley‘s breathalyzer test results. State v. Chandler, 267 S.C. 138, 143, 226 S.E.2d 553, 555 (1976) (“[E]xclusion of evidence should be limited to violations of constitutional rights and not to statutory violations, at least where the [defendant] cannot demonstrate prejudice at trial resulting from the failure to follow statutory procedures.“). Evidence the simulator test was not run in conformity with Act 434 goes to the weight, not the admissibility, of Huntley‘s breathalyzer results.
REVERSED.
TOAL, C.J., MOORE and WALLER, JJ., concur. PLEICONES, J., dissenting in a separate oрinion.
PLEICONES, Justice, dissenting:
I respectfully dissent. I agree with the majority that the original version of Act 434 is applicable to Huntley‘s case. Unlike the majority, however, I believе that the failure to comply with the clear and unambiguous statutory language mandating a simulator test be run using “an eight one-hundredths of one percent” alcohol solution bars the use of the breath test results at trial. State v. Breech, 308 S.C. 356, 417 S.E.2d 873 (1992) (DUI statute strictly construed in favor of defendant).