Davis Adv. Sh. No. XX
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

The City of Columbia, Respondent

v.

James H. Ervin, III, Petitioner

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

Appeal From Richland County

J. Ernest Kinard, Jr., Judge

Opinion No. 24786

Heard March 18, 1998 - Filed May 11, 1998

AFFIRMED AS MODIFIED

H. Jackson Gregory, of Gregory & Gregory, of

Columbia, for petitioner.

Thomas E. Ellenburg, of Columbia, for respondent.

BURNETT, A.J.: Petitioner James H. Ervin, III, was convicted

in Respondent the City of Columbia's (City's) municipal court of first offense

driving under the influence (DUI). The circuit court and the Court of

Appeals affirmed. The City of Columbia v. Ervin, 325 S.C. 644, 482 S.E.2d

781 (Ct. App. 1997). The Court granted Ervin a writ of certiorari to review

the decision of the Court of Appeals.

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FACTS

Prior to trial, Ervin moved to quash the arrest warrant, arguing

he had not been given a reasonable opportunity to obtain an independent

blood test. The parties stipulated Ervin had refused to take the datamaster

test after his arrest and specifically stated he wanted to be taken to Richland

Memorial Hospital (RAM) for an independent blood test. The arresting

officer transported petitioner to RMH. A nurse at the hospital informed

Ervin and the officer it was RMH's policy to perform blood tests only at the

request of the arresting officer. The arresting officer did not request the

blood test.1

During the motion hearing, Ervin argued "for the officer to take

him to the hospital and not request the blood test when the whole purpose of

(sic) trip down there was to get one, then he just put the defendant in a

Catch 22 ... The officer prohibited him from being able to get that

independent test . . . ." Although Ervin presented no evidence the arresting

officer knew RMH's policy, he argued the arresting officer should have

been charged with knowledge of the hospital's policy and, therefore, the

reasonable opportunity" provided by the officer was illusory. Ervin further

maintained the officer denied him a reasonable opportunity to obtain an

independent blood test by refusing to take him to Baptist Medical Center

(BMC) after RMH refused to provide the test.2 The trial judge concluded

the officer had provided Ervin with a reasonable opportunity to obtain an

independent blood test and denied Ervin's motion to quash the arrest

warrant.

During trial, Ervin asked the arresting officer if he had

instructed the nurse at RMH to perform the blood test. The arresting

officer answered negatively. Thereafter, Ervin questioned the officer as to

whether he was aware of RMH's policy regarding blood tests. The trial

judge sustained the City's objection. Ervin did not proffer the arresting

officer's testimony.

the defendant is unable to provide a breath sample as a result of injury or

if the defendant is suspected of using narcotics.

2 Trial testimony indicated BMC will perform a blood test at the

suspect's request.

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ISSUES

I. Did the Court of Appeals err by ruling the trial judge

properly sustained the City's objection?

II. Did the Court of Appeals err by concluding Ervin had been

provided a reasonable opportunity to obtain an independent

blood test?

III. Did the Court of Appeals err by affirming the denial of

Ervin's motion to suppress the evidence of his refusal to take

the datamaster test?

I.

On appeal to the Court of Appeals, Ervin argued the trial judge

erred by sustaining the City's objection to his question regarding the

arresting officer's knowledge of RMH's blood testing policy. The Court of

Appeals noted "this issue may not have been properly preserved for appeal

because Ervin made no proffer of the excluded testimony," but nonetheless

addressed the merits of Ervin's argument. Id. S.C. at 647, S.E.2d at 783.

The Court of Appeals should not have addressed the merits of

this issue. During his intermediate appeal before the circuit court Ervin

argued, inter alia, the trial judge erred in denying his pretrial motion to

quash the arrest warrant. Ervin did not raise the evidentiary issue to the

circuit court. Graniteville Manufacturing Co. v. Renew, 113 S.C. 171, 102

S.E. 18 (1920)(an issue not raised by exception to an intermediate appellate

court cannot be raised for the first time in the Supreme Court).

Moreover, Ervin failed to proffer the officer's testimony as to

his knowledge of RMH's policy. Accordingly, this issue was not preserved

for appellate review. State v. Cabbagestalk, 281 S.C. 35, 314 S.E.2d 10

(1984)(failure to make an offer of proof precludes consideration of an issue

on appeal); State v. Roper, 274 S.C. 14, 260 S.E.2d 705 (1979)(a reviewing

court may not consider error alleged in the exclusion of testimony unless

the record on appeal shows fairly what the rejected testimony would have

been). We vacate that portion of the Court of Appeals' opinion which

addresses the merits of Ervin's evidentiary issue.

II.

On appeal to the Court of Appeals, Ervin argued the arresting

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officer interfered with his attempt to procure an independent blood test by

1) refusing to request the test at RMH and 2) refusing to transport him to

BMC.3 The Court of Appeals concluded the officer provided Ervin with a

reasonable opportunity for an independent blood test where he "made a

breathalyzer test4 available to Ervin on the terms requested by Ervin. We

decline to hold that the Officer was required to do more." State v. Ervin,

supra, S.C. at 649, S.E.2d at 784.

An arresting officer does not have a duty to affirmatively assist

a defendant who refuses to take a breathalyzer test with obtaining

independent tests. Instead, a defendant who refuses to take a breathalyzer

test is only entitled to a "reasonable opportunity" to obtain an independent

blood test.5 State v. Lewis, 266 S.C. 45, 221 S.E.2d 524 (1976). A

reasonable opportunity does not include the affirmative duty to procure a

blood test for a defendant who has not taken a breathalyzer test. "What is

reasonable will, of course, depend on the circumstances of each case." Id.,

S.C. at 48, S.E.2d at 526. In some situations, the provision of a telephone

and telephone book constitutes reasonable opportunity. State v. Sullivan,

310 S.C. 311, 426 S.E.2d 766 (1993); State v. Degnan, 305 S.C. 369, 409

S.E.2d 346 (1991); State v. Lewis, supra.

In State v. Masters, 308 S.C. 433, 418 S.E.2d 552 (1992), the

arresting officer attempted to give the suspect a breathalyzer test at two

different locations; both machines malfunctioned. The officer then agreed

to transport the suspect to the hospital for a blood test. However, on the

way to the hospital, the officer received a call on the police radio and

returned with the suspect to the police station without having obtained the

blood test. The Court determined "under the unique facts such as these,

. . . where the officer affirmatively undertakes to procure a blood test for

the defendant, then the officer terminates that affirmative undertaking

him of the parameters of a reasonable opportunity. This issue was not

raised to the trial court and is not preserved for review. State v. Johnson,

324 S.C. 38, 476 S.E.2d 681 (1996).

4 We assume the Court of Appeals meant to refer to a blood test.

5 South Carolina Code Ann. § 56-5-2950 (Supp. 1997) provides "[t]he

arresting officer shall provide reasonable assistance to the person to contact

a qualified person to conduct additional tests." "The person" has been

interpreted to mean a person who has submitted to a breathalyzer test.

State v. Lewis, 266 S.C. 45, 221 S.E.2d 524 (1976).

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without any explanation or excuse, the officer has effectively denied the

defendant the reasonable opportunity to obtain a blood test." Id, S.C. at

435, S.E.2d at 553.

By transporting Ervin to RMH, the arresting officer provided

Ervin with more reasonable assistance than required since Ervin had

refused to take the datamaster test. Nonetheless, unlike the officer in

Masters, the arresting officer did not agree to procure a blood test for

Ervin, but, rather to simply transport Ervin to RMH as Ervin had

requested. Accordingly, the officer was not required to either request the

blood test at RMH or to transport Ervin to BMC. Consequently, we agree

in result with the opinion of the Court of Appeals.

However, we vacate that portion of the Court of Appeals'

opinion which suggests that by complying with the terms of the suspect's

request for an independent blood test, an officer automatically provides a

reasonable opportunity for a test. This is not always the case. For

instance, if Ervin had shown the arresting officer had knowledge of RMH's

policy of refusing blood tests at the request of a suspect, the officer's

transportation of Ervin to the hospital would not have been reasonable.

III.

Ervin argues the Court of Appeals erred in affirming the denial

of his motion to suppress evidence of his refusal to take the datamaster test

because he was not given a reasonable opportunity to obtain an independent

blood test. As noted above, Ervin was given a reasonable opportunity to

obtain a blood test. There was no error in the admission of Ervin's refusal

to take the datamaster test. Moreover, as found by the Court of Appeals, in

light of the overwhelming evidence of his intoxication, Ervin was not

prejudiced by the admission of his refusal to take the datamaster test.6

The decision of the Court of Appeals is AFFIRMED AS

MODIFIED.

FINNEY, C.J., TOAL, MOORE and WALLER, JJ., concur.

then drive his vehicle onto the median while making a right-hand turn.

Officers testified Ervin appeared unsteady, had an odor of alcohol about his

person, and used profanity. A RMH nurse testified Ervin was verbally and

physically abusive to the arresting officer and appeared to be intoxicated.

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