        The Supreme Court of South Carolina

             The State, Petitioner,

             v. 


             Phillip Wesley Sawyer, Respondent. 


             Appellate Case No. 2011-201206 




                                      ORDER


After careful consideration of the petition for rehearing, the majority of the Court
is unable to discover that any material fact or principle of law has been either
overlooked or disregarded, and hence, there is no basis for granting a rehearing.
However, we withdraw the original opinion filed June 4, 2014, and substitute the
attached opinion. The only change is the removal of a citation to the Court of
Appeals opinion in State v. Gordon, 2014 WL 1614854, which was withdrawn
after our opinion was filed. Accordingly, the petition for rehearing is denied.

                                  s/ Costa M. Pleicones                            J.

                                  s/ Donald W. Beatty                              J.

                                  s/ Kaye G. Hearn                                 J.


We would grant the petition.
                                  s/ Jean H. Toal                                C.J.

                                  s/ John W. Kittredge                             J.


Columbia, South Carolina
August 27, 2014
                    THE STATE OF SOUTH CAROLINA 

                         In The Supreme Court 


            The State, Petitioner,

            v.

            Phillip Wesley Sawyer, Respondent.

            Appellate Case No. 2011-201206


       ON WRIT OF CERTIORARI TO THE COURT OF APPEALS



                        Appeal from Spartanburg County 

                       Roger L. Couch, Circuit Court Judge 



                            Opinion No. 27393
     Heard November 5, 2013 – Withdrawn and Substituted August 27, 2014


                                     AFFIRMED


            Attorney General Alan McCrory Wilson and Assistant
            Attorney General William M. Blitch, Jr., both of
            Columbia, and Solicitor Barry Joe Barnette of
            Spartanburg, for Petitioner.

            Appellate Defender LaNelle Cantey DuRant, of 

            Columbia, for Respondent. 





JUSTICE PLEICONES: The Court granted the State's petition for a writ of
certiorari to review an unpublished Court of Appeals decision that affirmed the
circuit court's suppression of respondent's breath test results and video in this
prosecution for driving under the influence (DUI). State v. Sawyer, 2011-UP-263
(S.C. Ct. App. filed June 7, 2011). We affirm, holding that a videotape from the
breath test site that lacks the audio portion of the reading of Miranda rights and the
informed consent law did not satisfy the requirements of S.C. Code Ann. § 56-5-
2953(A)(2) (2006).1

                                       FACTS

In September 2007, respondent was taken to the Spartanburg County Jail by
Deputy Evett, who picked him up following a traffic stop made by Lt. Woodward.
Evett, a certified Data Master operator, placed respondent in the "subject test area"
which is a room that adjoins the Data Master room. The rooms are separated by a
glass panel. The deputy retrieved some forms from the Data Master room and
then appeared to read respondent his Miranda rights and the implied consent
information. Both respondent and Deputy Evett signed the forms. There are
separate audio and video recording devices in both the subject test area and in the
breathalyzer room. In this case, the audio device in the subject test area did not
function.

Respondent moved to suppress the evidence relating to the breath test site alleging
the videotape did not meet the requirements of S.C. Code Ann. § 56-5-2953(A).
Section (A) required that a person charged with DUI have his conduct at both the
incident site and the breath test site videotaped. Subsection (A)(2) provided:

             The videotaping at the breath site:

                    (a) must be completed within three hours of the person's
                    arrest for a violation of Section 56-5-2930, 56-5-2933, or
                    56-5-2945 or a probable cause determination that the
                    person violated Section 56-5-2945, unless compliance is
                    not possible because the person needs emergency
                    medical treatment considered necessary by licensed
                    medical personnel;

1
 Subsection A of this statute was rewritten by 2008 Act No. 201, § 11, effective
February 10, 2009 or when new equipment is installed. Essentially, the statute no
longer requires the test to be conducted within 3 hours, and eliminates the
requirement that the video include the reading of Miranda rights at the breath test
site.
                    (b) must include the reading of Miranda rights, the entire
                    breath test procedure, the person being informed that he
                    is being videotaped, and that he has the right to refuse the
                    test;

                    (c) must include the person taking or refusing the breath
                    test and the actions of the breath test operator while
                    conducting the test;

                    (d) must also include the person's conduct during the
                    required twenty-minute pre-test waiting period, unless
                    the officer submits a sworn affidavit certifying that it was
                    physically impossible to videotape this waiting period.
                    However, if the arresting officer administers the breath
                    test, the person's conduct during the twenty-minute pre-
                    test waiting period must be videotaped.

The circuit court first held that the videotape itself must be excluded because "the
videotape has no audio of the conversations between the testing officer and
[respondent] concerning such matters as his Miranda warnings, the explanation of
implied consent or other matters that may have been discussed between them."
The judge held that evidence other than the videotape could be used, citing § 56-5-
2953(B).

On respondent's motion for reconsideration, the circuit court clarified that it was
suppressing not only the videotape, but also any evidence or testimony that
respondent was offered and/or took a breath test, as well as the results of that test.
The court noted the State had supplied an "exigency" affidavit, seeking to invoke
the provisions of § 56-5-2953(B) that provides "Failure by the arresting officer to
produce the videotapes required by this section is not alone a ground for dismissal
of any charge . . . if the arresting officer submits a . . . sworn affidavit that it was
physically impossible to produce the videotape because . . . exigent circumstances
existed." (emphasis supplied). The judge held "an exigency" required an
emergency situation, or one requiring immediate attention or remedy, and found
that since the State did not even know of the audio malfunction for several months
after respondent's test, there was no exigent circumstance here. The court also
noted the affidavit was not prepared by the arresting officer, Lt. Woodward, as
required by the statute, but rather by Deputy Evett, the breath test administrator.
In the direct appeal, the State argued first that since a videotape was produced, no
consideration of Deputy Evett's "exigency" affidavit was necessary.2 The State
also argued that any defects in the audio portion of the tape went to its weight, not
its admissibility, and that all the statute required was a video, which it produced.
Alternatively, the State argued the trial judge should not have relied on the
"exigency" exception, but that instead he should have admitted the evidence based
upon a different part of § 56-5-2953(B), which permits the court to consider "other
valid reasons" for the lack of a videotape based upon the "totality of the
circumstances." This "totality of the circumstances" argument was not preserved
for appeal as it was not ruled upon in either the circuit court's original order or in
its amended order. E.g. State v. Kromah, 401 S.C. 340, 737 S.E.2d 490 (2013) fn.
3.

Following the Court of Appeals' decision affirming the trial court's suppression of
all evidence obtained at the breath test site, the State sought a writ of certiorari. In
its petition, the State made two arguments:

             I. 	The Court of Appeals erred in affirming the trial court's
                 suppression of the video recording of the breath test site,
                 testimony or evidence that a breath test was offered or
                 administered, and the results of Respondent's breath test.

             II. The Court of Appeals erred in refusing to reverse the trial
                court's decision based on the totality of the circumstances
                pursuant to Section 56-5-2953(B) of the South Carolina
                Code.

State's petition for a writ of certiorari to the Court of Appeals (filed November 18,
2011) (C-TRACK Appellate Case No. 2011-201206).

 On January 9, 2013, the Court granted certiorari on the first question but denied
certiorari on the second. S. Ct. Order dated January 9, 2013 (C-TRACK Appellate
Case No. 2011-201206).3


2
  We note that, assuming it was error to consider this affidavit, the State was the
party that introduced it. It is well-settled that a party cannot complain of an error it
induced. E.g. State v. Stroman, 281 S.C. 508, 316 S.E.2d 395 (1984).
3
  While the dissent would find the scope of the circuit court's suppression order too
broad, there is no challenge to the breadth of that order on certiorari.
                                        ISSUE

             Did a breath test site video that did not include audio
             demonstrating that Miranda warnings were given, that the
             individual was informed that he was being videotaped, or that
             he has the right to refuse the breath test meet the requirements
             of § 56-5-2953(A) as it existed in September 2007?

                                     ANALYSIS

The State argues that the statute only required that the individual's "conduct" be
recorded, and that conduct under the statute has been defined by the Court of
Appeals as "one's behavior, action or demeanor." Murphy v. State, 392 S.C. 626,
709 S.E.2d 685 (Ct. App. 2011). Thus, the State contends that only video of the
individual is necessary to satisfy the statute. We disagree.

In Murphy, the incident site video did not capture a full length image of the
individual as she attempted field sobriety tests. Murphy held that the video
adequately reflected the individual's behavior. Here, however, we are concerned
not with the defendant's conduct but with the content of the statutorily required
warnings. At the breath test site, the videotape must record the individual's
conduct during the twenty-minute waiting period [§ 56-5-2953(A)(2)(d)] and the
action of the breathalyzer operator conducting the test [§ 56-5-2953(A)(2)(c)].
Silent tape of this conduct would be acceptable under Murphy. However, the
statute required a videotape not merely of the individual's conduct while being read
his Miranda and informed consent rights, but also that it "must include" "the
reading of Miranda rights" and "the person being informed that he is being
videotaped, and that he has the right to refuse the test." § 56-5-2953(A)(2)(b). A
silent video simply cannot meet these statutory requirements.4



4
 Contrary to the dissent's contention that the video shows respondent being read
his Miranda warnings, being told the matter was videotaped, and being informed
of his right to refuse, all that the video shows is the officer's lips moving. As for
respondent's failure to challenge the contents of the officer's warnings, at this
juncture the sole issue before the circuit court was whether the silent video
complied with the statute. Further, respondent has not conceded the adequacy of
the officer's statements, as reflected in his briefs which refer to the "alleged
warnings." Finally, "bad faith" and "bad motive" are irrelevant here.
The State argues that this defect in the videotape goes only to its weight, not its
admissibility. Here we are concerned with a statute which governs the
admissibility of certain evidence. Compare e.g. S.C. Code Ann. § 19-1-180 (Supp.
2012) (certain hearsay statements made by children admissible in family court if
statute's terms complied with). In § 56-5-2953(B), the General Assembly
specified:

            Nothing in this section may be construed as prohibiting the
            introduction of other evidence in the trial of a [DUI charge].
            Failure by the arresting officer to produce the videotapes
            required by this section is not alone a ground for dismissal of
            [charges] if the arresting officer submits a sworn affidavit
            certifying that the videotape equipment at the time of the . . .
            breath test device [sic] was in an inoperable condition, stating
            reasonable efforts have been made to maintain the equipment . .
            . and certifying there was no other operable breath test facility
            available in the county or, in the alternative, submits a sworn
            affidavit certifying that it was physically impossible to produce
            the videotape because the person needed emergency medical
            treatment, or exigent circumstances existed . . . .
            Nothing in this section prohibits the court from considering any
            other valid reason for the failure to produce the videotape based
            upon the totality of the circumstances . . . .

            Section 56-5-2953(B) (2006).

While defects in evidence do not generally affect admissibility, as the State
maintains, the Court has interpreted the statute to require strict compliance with
Section (A) as a prerequisite for admissibility, unless an exception in Section (B)
applies. City of Rock Hill v. Suchenski, 374 S.C. 12, 646 S.E.2d 879 (2007); see
also State v. Elwell, 403 S.C. 606, 743 S.E.2d 802 (2013). The General Assembly
is presumed to be aware of this Court's interpretation of a statute, and where that
statute has been amended, but no change has been made that affects the Court's
interpretation, the legislature's inaction is evidence that our interpretation is
correct. E.g. McLeod v. Starnes, 396 S.C. 647, 723 S.E.2d 198 (2012). While the
General Assembly has amended § 56-5-2953 following our Suchenski decision,
nothing in the amended statute alters our holding that failure to comply with the
statute's terms renders the evidence inadmissible.5

As explained above, we declined certiorari to consider whether the circuit court
might have admitted the flawed tape under § 56-5-2953(B)'s "totality of the
circumstances" exception, and we have determined this tape did not satisfy § 56-5-
2953(A). The Court of Appeals properly affirmed the circuit court's suppression
order. City of Rock Hill v. Suchenski, supra.6

                                 CONCLUSION

The Court of Appeals' decision is

AFFIRMED.

HEARN and BEATTY, JJ., concur. TOAL, C.J., dissenting in a separate
opinion in which KITTREDGE, J., concurs.




5
  The dissent maintains that a prejudice analysis is appropriate whenever evidence
is obtained without full compliance with statutory requirements, citing State v.
Odom, 382 S.C. 144, 676 S.E.2d 124 (2009) (actually involving violation of
executive agreements); State v. Huntley, 349 S.C. 1, 562 S.E.2d 472 (2002); State
v. Chandler, 267 S.C. 138, 226 S.E.2d 533 (1976); State v. Sachs, 264 S.C. 541,
216 S.E.2d 501 (1975). As we have explained, these decisions are inapposite
since, unlike 56-5-2953, they involve statutes where the General Assembly did not
specify the remedy for the State's failure to comply. Suchenski, supra.
6
  The only arguable error of law was the circuit court's failure to dismiss the
charges once it determined that the State did not produce a videotape meeting the
requirements of (A) and that it did not meet any of the exceptions in (B).
Suchenski, supra; Elwell, supra. Respondent, however, did not appeal the circuit
court's denial of his request that the charges be dismissed.
CHIEF JUSTICE TOAL: I respectfully dissent. I would hold that the circuit
court committed an error of law in suppressing the evidence at issue in this case.

        Assuming, without deciding, that the video recording of Respondent's breath
test site did not comply with section 56-5-2953,7 I would apply a harmless error
analysis in determining whether the video recording and breath test evidence
should have been suppressed. This Court has recognized that the "exclusion of
evidence should be limited to violations of constitutional rights and not to statutory
violations, at least where the appellant cannot demonstrate prejudice at trial
resulting from the failure to follow statutory procedures." State v. Chandler, 267
S.C. 138, 143, 226 S.E.2d 553, 555 (1976) (emphasis added) (citing State v. Sachs,
264 S.C. 541, 566 n.11, 216 S.E.2d 501, 514 n.11 (1975)). In State v. Huntley, 349
S.C. 1, 5, 562 S.E.2d 472, 474 (2002), the circuit court suppressed a defendant's
breathalyzer results where the simulator test solution did not contain the proper
alcohol concentration required by an Act.8 Despite non-compliance with the Act,
this Court held that the circuit court improperly excluded the breathalyzer test
results because the defendant was not prejudiced by the violation, as the
breathalyzer machine itself was operating properly. Id. at 6, 562 S.E.2d at 474.
Therefore, the Court determined that evidence of non-compliance with the Act
went to the weight, not the admissibility of the defendant's breathalyzer results. Id.

Relying on these cases, I would hold that the circuit court committed an error of
law in failing to engage in a prejudice analysis upon finding that the video




7
  The State argues that the video recording satisfied section 56-5-2953 because the
video recording captured all conduct and events required by the statute. In
addition, the police officer who administered the breath test submitted an affidavit
to the circuit court indicating that exigent circumstances existed under 56-5-
2953(B) because the audio failure was unknown and out of the officer's control at
the time of the test.
8
  The Act amended South Carolina Code Ann. § 56-5-2950(a) to require a
simulator test be performed before a breath test is administered to ensure the
reliability of the breathalyzer machine results. Act No. 434, 1998 S.C. Acts
3220–23.
recording failed to satisfy the requirements of section 56-5-2953.9

    Contrary to the majority's assertion, the General Assembly did not specify a
remedy in section 56-5-2953 for failure to comply with the statutory requirements.
Subsection (B) merely provides that noncompliance with the statute "is not alone a
ground for dismissal" if the video recording qualifies under an exception in
subsection (B). S.C. Code Ann. § 56-5-2953(B); see also Suchenski, 374 S.C. at
16, 646 S.E.2d at 881 (finding that failure to produce a video recording in
compliance with 56-5-2953 may be a ground for dismissal if no exceptions apply).
Regardless, in my opinion, a statute's failure to specify a remedy for
noncompliance does not preclude a prejudice analysis, as the majority implies. C.f.
State v. Landon, 370 S.C. 103, 108–09, 634 S.E.2d 660, 663 (finding a prejudice
analysis appropriate for an alleged violation of a recordkeeping statute which does
not specify a remedy for noncompliance).

       In my view, Respondent was not prejudiced by the video recording's lack of
audio. Aside from its lack of audio, the video recording complies with the
statutory requirements of 56-5-2953 by including the reading of Respondent's
Miranda10 warnings, the officer informing Respondent of the video recording and
his right to refuse the breath test, and the breath test procedure itself. This Court
has stated that "the purpose of section 56-5-2953 . . . is to create direct evidence of
a DUI arrest." Town of Mt. Pleasant v. Roberts, 393 S.C. 332, 347, 713 S.E.2d
278, 285 (2011). Despite the malfunctioning of the audio, the video recording
nevertheless creates evidence of Respondent's breath test. Significantly,
Respondent has challenged neither the validity of the Miranda warnings he was
given nor any other aspect of the breath test procedure. Respondent has not
asserted that bad faith or a bad motive existed on the part of any actor involved in
the video recording audio failure.


9
 The mention of prejudice in City of Rock Hill v. Suchenski, 374 S.C. 12, 16, 646
S.E.2d 879, 881 (2007) has no impact on the present case. In Suchenski, the Court
found that a violation of 56-5-2953, even without a showing of prejudice to the
defendant, may result in dismissal of the charges. Id. As the majority points out,
in this case, Respondent did not appeal the circuit court's denial of his motion to
dismiss.


10
     Miranda v. Arizona, 384 U.S. 436 (1966).
       Therefore, I would hold that Respondent was not prejudiced by the omission
of audio in the video recording and, consequently, the circuit court erred in
suppressing the evidence. Absent a violation of Respondent's constitutional
rights—which are not in dispute here—the circuit court should not have excluded
the video recording or the evidence surrounding Respondent's breath test without a
showing that (1) the video did not comply with section 56-5-2953 and (2)
Respondent was prejudiced as a result of the video's non-compliance. See
Huntley, 349 S.C. at 6, 562 S.E.2d at 474; Chandler 267 S.C.at 143, 226 S.E.2d at
555.

       In my view, nothing in section 56-5-2953 mandates suppression of a
defective video recording, nor has this Court ever interpreted the statute as
requiring strict compliance for admission of a video recording, as the majority
asserts. Defects in evidence generally do not affect admissibility. See State v.
Odom, 382 S.C. 144, 152, 676 S.E.2d 124, 128 (2009) (citing Huntley, 349 S.C. at
6, 562 S.E.2d at 474). As indicated, supra, in the prejudice analysis, "exclusion is
typically reserved for constitutional violations." Id. (citing Huntley, 349 S.C. at 6,
562 S.E.2d at 474); Chandler, 267 S.C. at 143, 226 S.E.2d at 555. Thus, I would
find that the defect in the video recording goes to the weight, rather than the
admissibility, of the evidence. See Odom, 382 S.C. at 152, 676 S.E.2d at 128.

       Likewise, I disagree with the majority's interpretation of Suchenski.
Specifically, the majority believes Suchenski stands for the proposition that strict
compliance with section 56-5-2953 is a prerequisite for admissibility of evidence.
Suchenski merely holds that dismissal of a DUI charge is "an appropriate remedy
provided by [section] 56-5-2953 where a violation of subsection (A) is not
mitigated by subsection (B) exceptions." Suchenski, 374 S.C. at 17, 646 S.E.2d at
881 (emphasis added). In fact, the case makes no mention of suppression of
evidence, addressing only dismissal of DUI charges as a possible remedy for non-
compliance with the statute. Id. Because dismissal of Respondent's DUI charges
is not before us, this Court may only review the circuit court's suppression order.
As a result, the majority's reliance on Suchenski is misplaced.

       Furthermore, the majority provides no support for upholding the circuit
court's suppression of Respondent's breath test results along with all evidence or
testimony related to the breath test.11 Even if the failure to comply with the statute
11
  I disagree with the majority's contention that there is no challenge to the breadth
of the circuit court's suppression order on certiorari. While the State's petition does
not use that language, the State argued that the court of appeals erred in affirming
the circuit court's suppression of the video recording, the testimony or evidence
did, in fact, require suppression of the defective video recording, and assuming the
circuit court declined to dismiss the DUI charges, I cannot conceive of a basis,
statutory or otherwise, for excluding the breath test results and the related
testimony and evidence. To the contrary, section 56-5-2953 provides that
"[n]othing in this section may be construed as prohibiting the introduction of other
relevant evidence" in the trial for a DUI. S.C. Code Ann. § 56-5-2953(B).

      Therefore, because I would hold that the circuit court erred in failing to
conduct a prejudice analysis and Respondent demonstrated no prejudice resulting
from admission of the evidence, and because at the very least the circuit court erred
in suppressing the evidence surrounding the breath test, I would reverse the court
of appeals' decision upholding the circuit court's suppression order and remand for
a new trial.

KITTREDGE, J., concurs.




that a breath test was offered or administered, and the results of the breath test. In
my opinion, if the State contended the circuit court erred in excluding the video
recording only, the State's argument would have only mentioned the video
recording.
