State v. Franklin

443 S.E.2d 386, 312 S.C. 208, 1994 S.C. LEXIS 75

• Court: Supreme Court of South Carolina
• Decided: April 4, 1994
• Docket: 24043
• Status: Published

Opinion

Moore, Justice:

Appellant contends the trial court erred in admitting breathalyzer results. We affirm.

FACTS

Appellant Harvey Franklin was convicted of driving under the influence, fourth offense. Appellant appeals on the ground that the breathalyzer results should not have been admitted because the South Carolina Law Enforcement Division (SLED) did not specifically approve by regulation the model of breathalyzer machine which was used for the test.

ISSUE

Is SLED required to specifically approve breathalyzer machines by regulation?

DISCUSSION

S.C. Code Ann. § 56-5-2950 (1991) provides in pertinent part:

The breath test must be administered by a person trained and certified by SLED, using methods approved by SLED . . . SLED shall administer the provisions of this subsection and may make regulations necessary to carry out its provisions.

Originally SLED promulgated a regulation approving specific breathalyzer machine models, S.C. Code Regs. 73-2. However, in 1983 SLED substantially revised the regulation to provide in part:

SLED hereby approves the method of performing chemical analyses through the use of breath-testing devices of a design and of a model specifically approved by SLED as meeting, to its satisfaction, nationally-accepted high standard of accuracy, reliability, convenience and efficiency of operation.

Appellant contends under § 56-5-2950, if SLED acts at all, it must do so by regulation. We disagree. This section states SLED may make regulations. Under this section, we do not think regulations are the only means by which SLED can approve a specific breathalyzer machine model. Accordingly, the decision of the trial court is

Affirmed.

Chandler, Acting C.J., Finney, J., and George T. Gregory, Jr. and William T. Howell, Acting Associate Justices, concur.