This is an appeal from a conviction of driving under the influence of alcohol, second offense. We affirm.
Following his arrest, appellant was taken to the Hampton County Jail, where he consented to the administration of a breathalyzer test. After testing the breathalyzer with a standard simulator ampoule and obtaining a reading equal to the percent of alcohol in the simulator solution (0.10 percent), the test was administered on appellant. The South Carolina *290 Law Enforcement Division (SLED) certified operator obtained a reading of 0.18 percent. A 0.10 percent reading or greater on the breathalyzer raises a rebuttable presumption that the person tested is under the influence of alcohol. Subsequent to the completion of the breathalyzer test, both the simulator and test ampoules were nonmaliciously destroyed.
Under this court’s ruling in
State v. Parker,
271 S. C. 159,
Appellant maintains that the intentional though nonmali-cious destruction of the simulator and test ampoules deprived him of the opportunity to examine the evidence against him and amounted to the destruction of material evidence which could have potentially established his guilt or innocence. He contends that by reason of the above circumstances, he had been deprived of his right to due process, thereby rendering tire results of the breathalyzer test inadmissible.
The United States Supreme Court in
Brady v. Maryland,
The majority of courts addressing this issue, however, have reached the opposite result.
See, e. g., State v. Cantu,
The extension of the
Brady
doctrine by those cases relied upon by appellant to those instances where there is a “reasonable possibility” that the ampoules might constitute favorable evidence, is not constitutionally justified since
Brady
focused upon the harm to a defendant resulting from nondisclosure, while
Hitch
diverted this concern from the reality of prejudice to speculation about the contingent benefits to a defendant.
Edwards v. Oklahoma,
In the instant case, appellant has not attempted to show that .the ampoules, if available, could be subjected to scientific retesting which would yield reliable results. No expert witnesses were produced to demonstrate what the possible results would be. An examination of the
*292
record reveals only that appellant sought to raise the possibility of there existing a defect in the ampoules used. At best, appellant’s contentions constitute mere speculation on his part, with nothing advanced to realistically suggest the probability that information of any definite value would be obtained from any reliable process of re-examination.
1
See Edwards v. State,
Aside from the destruction of the ampoules used in the breathalyzer test, appellant contends that the lack of establishment of a chain of custody for the simulator solution and test ampoules, the use of a stale stock solution, and the use of incorrect or unknown chemicals in the ampoules singly and together deprived him of his right to due process. We disagree.
This court held in
Benton v. Pellum,
232 S. C. 26 at 27,
As the ampoules were never offered into evidence, this rule is inapplicable under the facts presented in the instant case.
Appellant also contends that the use of simulator stock solution beyond the recommended thirty-day period of use denied him due process of law. Testimony elicited at trial indicated that the stock solution was thirty-six days old at the time appellant was tested. Appellant fails, *293 however, to show what effect, if any, the use of such stale stock solution would have on the results of a breathalyzer test. Furthermore, testimony elicited from the test operator indicated that the solution remained effective for a sixty-day period.
Appellant contends that the use of vodka instead of absolute alcohol, contrary to the breathalyzer instructional manual, and of chemicals other than those required by the breathalyzer instructional manual violated the requirements of
State v. Parker, supra.
Although the test operator testified that the chemical contents of the ampoules consisted of sulfuric acid, potassium dichromate, and silver nitrate, no evidence was presented to show that the instructional manual required only two chemicals, potassium dichromate and sulfuric acid, as contended by appellant in his brief. Questions which are not presented to or' passed upon by the trial judge cannot be raised for the first time on appeal and are consequently waived.
Smart v. Charleston Mobile Homes, Inc.,
269 S. C. 588,
Testimony was also elicited from the test operator concerning the use of vodka in the simulator stock solution, as opposed to absolute alcohol, as required by the instructional manual. The test operator went on to testify, however, that he was instructed by SLED pursuant to its .training manual to use vodka in creating the simulator stock solution. SLED regulation 73-2, as set forth in the South Carolina Code (1976), provides that the approved method of operating a breathalyzer shall be “as set forth in the manufacturer’s instructional manual and in accordance with any supplementary written instructions governing operation or maintenance issued by the South Carolina Law Enforcement Division.” (Emphasis added.)
Appellant’s assertion that the lower court erred in admitting the breathalyzer test results despite the lack of evidence on the part of the State that the chemicals used in *294 either the simulator or test ampoules were the correct chemicals, disregards this court’s holding in State v. Parker, supra. As noted previously, a prima jade showing that the machine is operating properly and that the correct chemicals were used is made upon the testimony of the test operator that he had run a simulator test immediately before the actual test and that the breathalyzer machine gave a reading equal to the percent of alcohol in the simulator solution. State v. Parker, supra. In order to overcome this prima jade showing, it is necessary that appellant demonstrate that a 0.10 percent standard test reading is reasonably possible even though the ampoule chemical composition is in error or that the machine can malfunction without such being detected through the simulator test. Appellant has failed to present any scientific expert testimony to make such a demonstration.
Appellant next takes exception to the failure of the lower court to direct a verdict in his favor on the basis of a denial of equal protection of the law through the State Highway Department’s endorsement upon his driver’s license of the record of his previous license suspension for driving under the influence. This is without merit. The license to drive an automobile is not a property right, but a privilege which may be extended to individuals under various circumstances.
State v. Collins,
253 S. C. 358,
Appellant’s final contention is that the lower court erred in failing to charge the jury with the four requirements set forth in
State v. Parker, supra,
for the admission of breathalyzer test results into evidence. Appellant analogizes the instant case to that of a case in which the admission of a confession is sought. In the latter situation, the trial judge is required to make an initial determination on the admissibility of a confession, with a final determination being made by the jury.
State v. Lee,
255 S. C. 309,
Affirmed.
Notes
Although we make no determination in this opinion on the admissibility of expert testimony attempting to demonstrate that scientific retesting of used breathalyzer ampoules will yield reliable results, other cases in other jurisdictions have determined such expert testimony to be inadmissible since it did not meet the standard set forth in
Frye v. United States,