On May 19, 2010, a South Carolina officer arrested Ms. Chisolm for driving under the influence.  The officer had received a call that the passenger in the car was “banging on other cars.”  The officer had the driver take three field sobriety tests: the one-legged stand, the walk and turn, and the horizontal gaze nystagmus test.  She failed two of the tests; however, neither test discovered the amount of alcohol she had in her system.

The officer then transported Chisolm to the police station, where he administered a breath test.  She blew into the test for one minute and fifty three seconds.  However, the instrument just did not register, or detect any alcohol.  There is no evidence that Chisolm was being uncooperative or failed to listen to the officer’s instructions.  However, the officer put in the records that the woman refused to submit to the breath test, and her license was suspended as a result.

Thereafter, Chisolm requested an administrative hearing before the South Carolina Office of Motor Vehicle Hearings (OMVH) to challenge the suspension arguing that her suspension was unjustified because (1) there was no probable cause to arrest, and (2) she never refused to give the sample required by law and provided an adequate test sample.

Chisolm argues the ALC erred in determining a refusal takes place pursuant to section 56-5-2951 when the breath test instrument “determines” a provided sample is inadequate.  According to Chisolm, a refusal only takes place when the test subject actually refuses the conscious act of blowing into the instrument, and the ALC erred in interpreting the SLED policies and procedures in a manner that is contrary to section 56-5-2951.  She contends that she never “refused” within the meaning of this section, and therefore the suspension of her license was unjustified.

The courts in South Carolina have stated that being licensed to operate a motor vehicle on the public highways of this state is not a property right, but is a privilege.  Therefore, it is subject to reasonable regulations under the police power in the interest of the public safety and welfare.  However, the privilege may not be revoked or suspended arbitrarily or capriciously.  Further, the Department of Motor Vehicles must suspend the driver’s license, permit, or nonresident operating privilege of or deny the issuance of a license or permit to a person who drives a motor vehicle and refuses to submit to a breath test.

The requirements for suspension for refusal to consent are as follows: (1) a person (2) operating a motor vehicle (3) in South Carolina (4) be arrested for an offense arising out of acts alleged to have been committed while the person was driving under the influence of alcohol, drugs, or both, and (5) refuse to submit to alcohol and drug testing.

The SLED policies and procedures with regard to the breathalyzer test are as follows:

§ 8.12.5(L)(2)(f)(i).

If an acceptable breath sample is not provided in two minutes, the instrument will display “Did the subject refuse?” When question is prompted, press the touch-screen icon, “Yes” or “No”. If “Yes” is answered, the instrument will print “REFUSED” by “SUBJECT SAMPLE”, after the final steps of the operational protocol are completed…. If “No” is answered, the test will abort and the instrument will print “INCOMPLETE SUBJECT TEST” on the Breath Alcohol Analysis Test Report/Evidence Ticket. An “INCOMPLETE SUBJECT TEST” reading, by itself, is not a refusal situation. (A “NO” should only be entered if the subject failed to provide an acceptable breath sample through no fault of his/her own.). In the event of an “INCOMPLETE SUBJECT TEST”, the breath test sequence may be repeated, except the advisement process is not required to be repeated. http://www.sled.sc.gov/documents/impliedconsent/polproc/8125/200902108125.pdf (last visited March 15, 2013).

The South Carolina Code does not define “refusal.” However, SLED’s policies and procedures provide several examples of when a refusal can occur. For example, a refusal can occur if the subject refuses to cooperate, delays the administration of the test, ingests prohibited substances during the observation, or intentionally causes the instrument to have an error.

Here, the court affirmed the suspension of Chisolm’s license, finding the record contains evidence that “the machine determined that the breath sample was not measurable, and thus inadequate.”  It was further found that the “facts of the case conform to the criteria for determining a refusal pursuant to SLED policy and the officer properly found that the woman refused to submit to a breath test.  A plain reading of the South Carolina statute at issue (56-5-2951(A) provides that the department may suspend a driver’s license when a person refuses to submit to a breath test.

A review of the record and video recording reveals that Chisolm wanted to take the breath test, blew into the DataMaster, and the instrument produced a steady tone for an extended period of time that indicated sufficient air was going into the instrument.  The officer even reported that there was a steady tone.  Even though the machine failed to register Chisolms breath sample, at no time did the machine indicate that she was not blowing an adequate sample.

Here, according to the officer Chisolm was absolutely doing what she was supposed to do.  Also, when the officer offered Chisolm the opportunity to take the test a second time, she agreed to do so; however, the instrument would not allow for another test.

The officer testified that he had no clue why the test was registering in such a way, and stated that he felt that the DataMaster simply did not register.  But, the officer pressed the “yes” button when asked whether the defendant refused the breath test.  This was a complete lie, and is what the woman’s case hinges on.  This act was “arbitrary and capricious” and a “manifest abuse of his discretion resulting in Chisolm’s license revocation.

The fact that the officer’s statement was that he “had no clue” why the DataMaster was not registering, while Chisolm continued to blow steadily into the machine indicates that she was cooperating fully and engaging in the test how she was supposed to.  And, the SLED policies provide the officers with discretion to determine whether the subject’s failure to blow an acceptable breath sample was a refusal.  However, this determination cannot be arbitrary and capricious.

So, the record here indicates that Chisolm did not refuse to take the test and the Department did not produce any evidence indicating that she was trying to fake or thwart the test, be uncooperative, act unruly, delay the administration of the test, ingest prohibited substances during the observation period, fail to cooperate with the officers instructions, or behave in any manner that would amount to a constructive refusal.  Therefore, the court found it fundamentally unfair under the facts herein to label as a refusal a situation where Chisolm blew for such an extended length of time with a steady tone by the instrument, absent any allegations of fault by Chisolm or any attempt to fake or thwart the test. So, based on the facts and circumstances of this case, the officer’s decision to enter a refusal, in light of his own testimony, was arbitrary and capricious, and the State has thus failed to meet its burden of producing evidence to support the officer’s determination of refusal.  The decision of the ALC is therefore overruled.

In this case, Chisolm go off the hook because she listened to the officer’s instructions and the breath test failed to register the test.  There are circumstances over and over again in the DUI world that make the evidence insufficient to prosecute a defendant.  Therefore, if you or a loved one has been charged with a DUI, and you feel that there is insufficient evidence, contact the law offices of Reeves, Aiken & Hightower, LLP for a consultation.  Call our Baxter Village office located in Fort Mill, South Carolina at 803-548-4444, or toll-free at 877-374-5999.