Wednesday, November 28, 2007

S.C. Court of Appeals holds that police officer is not qualified to determine whether DUI suspect is unable to give a breath test

In Peake v. SCDMV, Peake was in a one car accident and was taken to the hospital for treatment. A Trooper Manley requested Peake provide a blood sample at the hospital, believing Peake’s condition precluded a breath test. Peake stated he understood his implied consent rights and refused to submit a blood sample. Trooper Manley then issued Peake a Notice of Suspension which Peake refused to sign. On appeal, Peake contended section 56-5-2950(a) requires law enforcement to seek the opinion of a medical professional that a person is incapable of providing a breath test.

Section 56-5-2950(a) states in pertinent part: "At the direction of the arresting officer, the person first must be offered a breath test to determine the person’s alcohol concentration. If the person is physically unable to provide an acceptable breath sample because he has an injured mouth, is unconscious or dead, or for any other reason considered acceptable by the licensed medical personnel, the arresting officer may request a blood sample to be taken."

The Court of Appeals held that the plain language of section 56-5-2950(a) "permits an arresting officer to request a blood sample but unambiguously limits this to situations where a person is physically unable to provide a breath sample due to an injured mouth, unconsciousness or death, or for any other reason considered acceptable by the licensed medical personnel. In the case at bar, the Department has not asserted Peake had an injured mouth or was unconscious. Therefore, the Department was required under the implied consent statute to show Peake was physically unable to give an acceptable breath sample for a reason found acceptable by licensed medical personnel."

Hence, the court reversed the suspension of Peake's license.

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