State v. Huntley, decided five years before City of Rock Hill v. Suchenski, held that, where a breathalyzer’s simulator test was run using a simulator solution with a .10 percent alcohol content instead of .08 alcohol content, it did not require suppression of the breath test results because the defendant could not show any prejudice from the mistake.

The statutory language requiring a simulator test with a .08 alcohol solution is mandatory – it uses the word “must” just like the statutory videotape requirements in Suchenski. So, how do we reconcile the two opinions?

Did Suchenski overrule Huntley, or do they now stand for two different rules in two different types of cases?

What Does State v. Huntley Stand For?

In State v. Huntley, the defendant was given a breath test on a machine that used a .10 simulator solution instead of a .08 solution as required by the statute. Although the lower court suppressed the Datamaster result, the SC Supreme Court reversed and found that suppression was not necessary.

What the Heck is a Simulator Solution?

Before the Datamaster machine tests your breath sample, it “tests itself” by breaking open a small vial containing a solution with .08 percent alcohol. The machine tests that solution, and, if the test result is within .004 percent of .08, the machine declares itself to be reliable and calibrated.

If the result does not match the simulator solution, however, the machine will provide an unreliable result.

No Prejudice in Huntley’s Case

Although the simulator solution in Huntley was .10 instead of .08, the machine tested the sample and found that it was .10 – whether the solution was .08, .10, or some other number, the machine is presumably working properly if the result matches the alcohol content of the solution:

The 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. SeeState 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 solution so that it will, likewise, accurately measure the percentage of alcohol in the subject’s breath.

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.

Why require a showing of prejudice in Huntley but not five years later in Suchenski?

SC Code Section 56-5-2953 Requires Dismissal but 56-5-2950 Does Not

When an officer fails to produce a complete videotape pursuant to SC Code Section 56-5-2953, the statute expressly authorizes dismissal as the remedy. As the Suchenski Court stated:

Under § 56-5-2953, a violation of the statute, with no mention of prejudice, may result in dismissal of the charges. The statute provides, “Failure by the arresting officer to produce the videotapes required by this section is not alone a ground for dismissal of any charge made pursuant to Section 56-5-2930, 56-5-2933, or 56-5-2945 if [exceptions apply] ․” (emphasis added). Conversely, failure to produce videotapes would be a ground for dismissal if no exceptions apply.

SC’s implied consent statute, SC Code Section 56-5-2950, does not authorize dismissal for a violation although the language is also mandatory:

Before the breath test is administered, an eight one-hundredths of one percent simulator test must be performed and the result must reflect a reading between 0.076 percent and 0.084 percent.

So, what does State v. Huntley stand for in a post-Suchenski DUI lawscape?

If the officer violates the mandatory videotape law, the remedy is dismissal of the case unless there is an exception.

If the officer violates the implied consent statute (or SLED policy, or any other statute that does not expressly authorize dismissal), the case may be dismissed, or the breath test results excluded, if the defendant can show unfair prejudice resulting from the violation.

Does a Suchenski Violation Result in Suppression of the Breath Test Results?

I’ve heard defense attorneys, prosecutors, and even judges say that suppression of the breath test results is the appropriate remedy for a violation of the videotape law. It is not.

56-5-2953 authorizes dismissal as the remedy for failure to videotape. Would you rather have suppression of the breath test or dismissal of your case? Okay… 56-5-2953 says your case gets dismissed.

56-5-2950, on the other hand, does not expressly authorize dismissal of the case. Although dismissal is an available remedy, the court is not required to dismiss the case and, assuming the defendant can show prejudice resulting from the statutory violation, the court is more likely to suppress the breath test results (which could still result in dismissal by the prosecutor).

Charleston, SC DUI Defense Attorney

Charleston, SC DUI defense attorney Grant B. Smaldone focuses his law practice on criminal defense and DUI defense in the Charleston, SC area.

If you have been charged with DUI, DUAC, or any DUI related offense, call Grant B. Smaldone now at (843) 808-2100 or contact us through our website to talk to a Charleston, SC DUI defense lawyer today.