State v. Sullivan, 426 S.E.2d 766 (S.C. 1993). · Go Syfert
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State v. Sullivan, 426 S.E.2d 766 (S.C. 1993). Cases Citing This Book View Copy Cite
“to preserve an issue for 525 appellate review, an appellant must object at his first opportunity.”
143 citation events (62 in the last 25 years) across 29 distinct courts.
Strongest positive: Wright v. HIESTER CONST. CO., INC. (scctapp, 2010-07-21)
Treatment trajectory · 1993 → 2026 · click a year to view as-of
1993 2009 2026
Statutes interpreted (leading-cases list)
#1 S.C. Code Ann. § 18-3-30 cited 1× in this case · 9 total citations of statute
Top citers, strongest first. 32 distinct citers.
examined Cited as authority (verbatim quote) Wright v. HIESTER CONST. CO., INC. (2×) also: Cited as authority (quoted)
S.C. Ct. App. · 2010 · signal: see · quote attribution · 2 verbatim quotes · confidence high
to preserve an issue for 525 appellate review, an appellant must object at his first opportunity.
examined Cited as authority (verbatim quote) Wright v. Hiester Construction Co. (2×) also: Cited as authority (quoted)
S.C. Ct. App. · 2010 · signal: see · quote attribution · 2 verbatim quotes · confidence high
to preserve an issue for appellate review, an appellant must object at his first opportunity.
examined Cited as authority (verbatim quote) State v. Rose (3×) also: Cited as authority (quoted), Cited as authority (rule)
Mo. Ct. App. · 2002 · quote attribution · 2 verbatim quotes · confidence high
hgn tests shall not constitute evidence to establish a specific degree of blood alcohol content
discussed Cited as authority (quoted) Spencer v. State
Ga. · 2017 · quote attribution · 1 verbatim quote · confidence low
hgn tests shall not constitute evidence to establish a specific degree of blood alcohol content.
discussed Cited as authority (quoted) Spencer v. State
Ga. · 2017 · quote attribution · 1 verbatim quote · confidence low
hgn tests shall not constitute evidence to establish a specific degree of blood alcohol content.
discussed Cited as authority (rule) State v. Venessa Sarkisian-Kennedy
Vt. · 2020 · confidence medium
Id.; see also, e.g., State v. Murphy, 451 N.W.2d 154, 157-158 (Iowa 1990) (concluding that testimony of properly trained police officer was sufficient to admit HGN evidence, despite exam’s “pretentiously scientific name,” because “[t]he ease with which the test may be administered and evaluated obviates the need for a more scientific interpretation”); State v. Sullivan, 426 S.E.2d 766, 769 (S.C. 1993) (holding “that evidence resulting from HGN tests, as from other field sobriety tests, is admissible when the HGN test was used to elicit objective manifestations of soberness or insob…
discussed Cited as authority (rule) State v. Land
S.C. Ct. App. · 2016 · confidence medium
See Wilder Corp. v. Wilke, 330 S.C. 71, 76 , 497 S.E.2d 731, 733 (1998) ("It is axiomatic that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial judge to be preserved for appellate review.”); State v. Sullivan, 310 S.C. 311, 314 , 426 S.E.2d 766, 768 (1993) ("To preserve an issue for appellate review, an appellant must object at his first opportunity.”); State v. Wakefield, 323 S.C. 189, 191 , 473 S.E.2d 831, 832 (Ct. App. 1996) (to be considered on appeal, all issues must be argued by the appellant in his initial brief).
cited Cited as authority (rule) State v. Williams
S.C. Ct. App. · 2016 · confidence medium
“To preserve an issue for appellate review, an appellant must object at his first opportunity.” State v. Sullivan, 310 S.C. 311, 314 , 426 S.E.2d 766, 768 (1993).
discussed Cited as authority (rule) Visser v. Quality Control Painting
S.C. Ct. App. · 2011 · confidence medium
As to whether the original notice in and of itself provided adequate notice: State v. Sullivan , 310 S.C. 311, 314-15 , 426 S.E.2d 766, 768-69 (1993) (holding similar exceptions listed in an original notice of appeal failed by themselves to apprise the other parties and courts of the grounds for appeal). 2.
discussed Cited as authority (rule) Visser v. APEX Builders
S.C. Ct. App. · 2011 · confidence medium
As to whether the original notice in and of itself provided adequate notice: State v. Sullivan , 310 S.C. 311, 314-15 , 426 S.E.2d 766, 768-69 (1993) (holding similar exceptions listed in an original notice of appeal failed by themselves to apprise the other parties and courts of the grounds for appeal). 2.
discussed Cited as authority (rule) Visser v. Pinckney
S.C. Ct. App. · 2011 · confidence medium
As to whether the original notice in and of itself provided adequate notice: State v. Sullivan , 310 S.C. 311, 314-15 , 426 S.E.2d 766, 768-69 (1993) (holding similar exceptions listed in an original notice of appeal failed by themselves to apprise the other parties and courts of the grounds for appeal). 2.
discussed Cited as authority (rule) State v. Shadden
Kan. Ct. App. · 2009 · confidence medium
App. 543, 553 , 723 A.2d 494 (1999) (permitting testimony regarding HGN test results but finding error when testimony included an opinion that Wilson was at or above .10 BAC); State v. Rose, 86 S.W.3d 90, 100 (Mo. App. 2002) (allowing evidence of HGN test results as circumstantial evidence of intoxication but not as evidence of a specific BAC level); State v. Baue, 258 Neb. 968, 985-87 , 607 N.W.2d 191 (2000) (same); State v. Dahood, 148 N.H. 723, 734 , 814 A.2d 159 (2002) (same); Brewer v. Ziegler, 743 N.W.2d 391, 400 (N.D. 2007) (admitting evidence of HGN test results as circumstantial evide…
examined Cited as authority (rule) State v. Smith (3×) also: Cited "see"
S.C. Ct. App. · 2007 · confidence medium
NOTES [1] We refer to the victim as John Doe and his older brother as Richard Roe to protect the identities of the minors involved. [2] State v. Lyle, 125 S.C. 406 , 118 S.E. 803 (1923). [3] Doe was not examined during the post-trial hearing as by then he and Roe had returned to their home out of state. [4] See Bowman v. Bowman, 357 S.C. 146, 160 , 591 S.E.2d 654, 661 (Ct.App.2004) (citations omitted) ("[A] party cannot complain when it receives the relief for which it has asked."). [5] State v. Lyle, 125 S.C. 406 , 118 S.E. 803 (1923). [6] See State v. Lynn, 277 S.C. 222 , 226, 284 S.E.2d 786…
discussed Cited as authority (rule) State v. Summersett
S.C. Ct. App. · 2005 · confidence medium
See State v. Hoffman , 312 S.C. 386, 393 , 440 S.E.2d 869, 873 (1994) (holding that a contemporaneous objection is required to preserve an issue for appellate review); State v. Sullivan , 310 S.C. 311, 314 , 426 S.E.2d 766, 768 (1993) (holding that “[t]o preserve an issue for appellate review, an appellant must object at his first opportunity”).
cited Cited as authority (rule) State v. Dahood
N.H. · 2002 · confidence medium
See, e.g., State v. Murphy, 451 N.W.2d 154, 157 (Iowa 1990); State v. Sullivan, 426 S.E.2d 766, 769 (S.C. 1993).
discussed Cited as authority (rule) Government of the Virgin Islands v. Carela
virginislands · 2001 · confidence medium
Apollo, supra at 1025-26 ; Commonwealth v. Miller, 532 A.2d 1186, 1189-90 (Pa. 1987) (holding it was error to admit the HGN for the purpose of proving BAC, based solely on the testimony of a police officer, because this constituted scientific evidence); State v. Reed, 732 P.2d 66, 68 (Ore. 1987) (holding that the HGN for the purpose of proving BAC is a scientific method, requiring expert testimony); State v. Wheeler, 764 S.W.2d 523, 524 (Mo. 1989) (rejecting the HGN to determine BAC); State v. Bresson, 554 N.E.2d 1330, 1336 (Ohio 1990) (holding that a police officer could properly testify rega…
discussed Cited as authority (rule) Wilson v. State
Md. Ct. Spec. App. · 1999 · confidence medium
See, e.g., Whitson v. State, 314 Ark. 458 , 863 *557 S.W.2d 794, 797-98 (1993) (finding officer’s testimony of HGN result “relevant as some proof of intoxication,” but implying that HGN test may not be used to quantify BAC); State v. Garrett, 119 Idaho 878 , 811 P.2d 488, 491 (1991) (recognizing that “HGN test results may not be used at trial to establish the defendant’s blood alcohol level in the absence of the chemical analysis of the defendant’s blood, breath, or urine”); People v. Buening, 229 Ill.App.3d 538 , 170 Ill.Dec. 542 , 592 N.E.2d 1222, 1227 , appeal denied, 146 Ill.…
discussed Cited as authority (rule) Ballard v. State
Alaska Ct. App. · 1998 · confidence medium
Hamilton v. City Court of City of Mesa, 165 Ariz. 514 , 799 P.2d 855, 857-58 (1990); State v. Superior Court, 149 Ariz. 269 , 718 P.2d 171, 181-82 (1986); People v. Joehnk, 35 Cal.App.4th 1488 , 42 Cal.Rptr.2d 6, 15-17 (1995); Hawkins v. State, 223 Ga.App. 34 , 476 S.E.2d 803, 808-09 (1996); State v. Garrett, 119 Idaho 878 , 811 P.2d 488, 491 (1991); People v. Buening, 229 Ill.App.3d 538 , 170 Ill.Dec. 542, 547-48 , 592 N.E.2d 1222, 1227-28 (1992) 4 ; People v. Wiebler, 266 Ill.App.3d 336 , 203 Ill.Dec. 597, 600 , 640 N.E.2d 24, 27 (1994); State v. Armstrong, 561 So.2d 883, 887 (La.App.1990); …
cited Cited as authority (rule) Young v. City of Brookhaven
Miss. · 1997 · confidence medium
Ct. App. 1992); State v. Nagel, 30 Ohio App.3d 80 , 506 N.E.2d 285, 286 (1986); State v. Klawitter, 518 N.W.2d 577 (Minn. 1994); State v. Sullivan, 310 S.C. 311 , 426 S.E.2d 766, 769 (1993).
cited Cited as authority (rule) Anonymous v. State Board of Medical Examiners
S.C. Ct. App. · 1996 · confidence medium
State v. Sullivan, 310 S.C. at 314, 426 S.E. (2d) at 768 .
discussed Cited as authority (rule) Schultz v. State (2×)
Md. Ct. Spec. App. · 1995 · confidence medium
Id., 426 S.E.2d at 769 (footnote omitted).
cited Cited as authority (rule) Eugene Young v. City of Brookhaven, Mississippi
Miss. · 1994 · confidence medium
Ct. App. 1992); State v. Nagel, 506 N.E. 2d 285, 286 (Ohio 1986); State v. Klawitter, 518 N.W. 2d (Minn. 1994); State v. Sullivan, 426 S.E.2d 766, 769 (S.C.1993).
discussed Cited as authority (rule) City of Fargo v. McLaughlin
N.D. · 1994 · confidence medium
Whitson v. State, 314 Ark. 458 , 863 S.W.2d 794, 798 (1993); People v. Ojeda, 225 Cal.App.3d 404 , 275 Cal.Rptr. 472, 474 (1990); State v. Edman, 452 N.W.2d 169, 170 (Iowa 1990); State v. Murphy, 451 N.W.2d 154, 157 (Iowa 1990); State v. Garris, 603 So.2d 277, 282 (La.Ct.App.1992); State v. Nagel, 30 Ohio App.3d 80 , 506 N.E.2d 285, 286 (1986); State v. Sullivan, — S.C. —, 426 S.E.2d 766, 769 (1993).
discussed Cited as authority (rule) State v. Cissne
Wash. Ct. App. · 1994 · confidence medium
Citing Nagel, State v. Sullivan, _ S.C. _, 426 S.E.2d 766, 769 (1993) held evidence resulting from HGN tests, as from other field sobriety tests, is admissible when the test is used "to elicit objective manifestations of soberness or insobriety".
discussed Cited as authority (rule) State v. Harris
S.C. Ct. App. · 1993 · confidence medium
State v. Lewis, 266 S.C. 45, 48 , 221 S.E. (2d) 524, 526 (1976) (access to a telephone and telephone book are sufficient to show reasonable opportunity); State v. Sullivan, — S.C. —, 426 S.E. (2d) 766, 769 (1993) (“ample time and the means (telephone) by which to make arrangements for independent testing” constituted reasonable opportunity); State v. Degnan, 305 S.C. 369, 371 , 409 S.E. (2d) 346, 348 (1991) (access to telephone sufficient to show reasonable opportunity).
discussed Cited "see" City of Columbia v. Ervin (2×)
S.C. Ct. App. · 1997 · signal: see · confidence high
See State v. Sullivan, 310 S.C. 311 , 426 S.E.2d 766 (1993) (ample time and means to telephone to make arrangements for independent testing constituted reasonable opportunity); State v. Degnan, 305 S.C. 369, 371 , 409 S.E.2d 346, 348 (1991) (access to telephone sufficient to show reasonable opportunity); State v. Lewis, 266 S.C. 45, 48 , 221 S.E.2d 524, 526 (1976) (access to a telephone and telephone book sufficient to show reasonable opportunity).
discussed Cited "see" State v. Wakefield (2×)
S.C. Ct. App. · 1996 · signal: see · confidence high
See State v. Sullivan, 310 S.C. 311 , 426 S.E. (2d) 766 (1993) (to preserve an issue for appellate review, appellant must object at the first opportunity); Cook v. South Carolina Dep’t of Highways and Pub.
discussed Cited "see, e.g." Williams v. State (2×)
Fla. Dist. Ct. App. · 1998 · signal: see, e.g. · confidence low
See, e.g., State v. Sullivan, 310 S.C. 311 , 426 S.E.2d 766 (1993); State v. Murphy, 451 N.W.2d 154 (Iowa 1990); State v. Clark, 234 Mont. 222 , 762 P.2d 853 (1988).
discussed Cited "see, e.g." State v. Salisbury (2×)
S.C. Ct. App. · 1998 · signal: see, e.g. · confidence low
See, e.g., State v. Sullivan, 310 S.C. 311 , 426 S.E.2d 766 (1993); State v. Graves, 269 S.C. 356 , 237 S.E.2d 584 (1977); State v. Nathari, 303 S.C. 188 , 399 S.E.2d 597 (Ct.App.1990).
discussed Cited "see, e.g." State v. Head (2×)
S.C. Ct. App. · 1997 · signal: see also · confidence low
See also State v. Sullivan, 310 S.C. 311 , 426 S.E.2d 766 (1993) (defendant preserved issue of HGN test, as he objected to introduction of field sobriety tests at magistrate’s trial, and state did not object to his supplemental exception which raised the issue to the circuit court).
discussed Cited "see, e.g." State v. Ruthardt (2×)
Del. Super. Ct. · 1996 · signal: see, e.g. · confidence low
See, e.g., State v. Sullivan, 310 S.C. 311 , 426 S.E.2d 766 (1993); Whitson v. State, 314 Ark. 458 , 863 S.W.2d 794, 798 (1993); State v. Murphy, Iowa Supr., 451 N.W.2d 154 (1990); State v. Nagel, 30 Ohio App.3d 80 , 506 N.E.2d 285, 286 (1986); State v. Garris, La.Ct.App., 603 So.2d 277, 282 , writ denied, 607 So.2d 564 (1992). 10 .In thus ruling, the Court joins with courts in the states of Arizona (Superior Court, 718 P.2d at 181 ), Alabama (Malone, 575 So.2d at 105 ), California (Le ahy, 882 P.2d at 333-34 ), Georgia (Manley v. State, 206 Ga.App. 281 , 424 S.E.2d 818, 820 (1992)), Idaho (St…
cited Cited "see, e.g." State v. O'Key
Or. · 1995 · signal: see, e.g. · confidence low
See, e.g., State v. Sullivan, 310 SC 311, 426 SE2d 766 (1993); State v. Murphy, 451 NW2d 154 (Iowa 1990); State v. Bresson, 51 Ohio St 3d 123, 554 NE2d 1330 (1990).
The STATE, Appellant
v.
Paul A. SULLIVAN, Respondent
23781.
Supreme Court of South Carolina.
Jan 11, 1993.
426 S.E.2d 766
Joseph H. Lumpkin, Jr., Asst. Chief Counsel, of S.C. Dept, of Highways and Public Transp., Columbia, for appellant., Michael S. O’Neal and Reese I. Joye, Jr., both of the Joye Law Firm, North Charleston, far respondent.
Finney, Harwell, Chandler, Toal, Moore.
Cited by 67 opinions  |  Published
4 passages pin-cited by 5 cases
Pinpoint authority: #29,622 of 633,719
Citer courts: Supreme Court of Georgia (2) · Court of Appeals of South Caro… (2) · Missouri Court of Appeals (1)
Finney, Justice:

The state appeals from a circuit court order which reversed[*313] and remanded for a new trial Respondent Paul A. Sullivan’s magistrate court conviction for driving under the influence of alcohol. We reverse.

On November 8, 1989, Trooper Dan Merritt was directing traffic across the damaged Ben Sawyer Bridge when the respondent failed to heed his signal to stop, forcing the trooper to jump from the path of respondent’s vehicle. Trooper Merritt yelled for the respondent to stop and the vehicle came to a halt. The trooper smelled a strong odor of alcohol on the respondent’s breath and after administering the horizontal gaze nystagmus (HGN) and other field sobriety tests, he arrested the respondent for driving under the influence of alcohol or drugs (DUI), first offense.

On March 15, 1990, the respondent was convicted in magistrate court. The respondent made a posttrial motion for a new trial which the magistrate took under advisement. By letter dated March 29, 1990, the magistrate denied the motion. On April 20, 1990, respondent served notice of intent to appeal, and filed a supplement to his notice on June 5, 1991. The circuit court reversed and remanded the case upon the following grounds:

1. That the respondent had timely objected to evidence from the HGN test; and the magistrate erred in admitting such evidence because a) the arresting officer was not sufficiently trained in the theory and administration of the scientific/medical test; b) the testimony was highly speculative; and c) any probative value was far outweighed by the prejudicial effect of such “pseudo-scientific” evidence.
2. That the magistrate improperly denied respondent’s motion to suppress evidence of his refusal to submit to the breathalyzer test based upon the state’s failure to provide reasonable assistance for the respondent to obtain an independent blood test.

Initially, appellant asserts that the circuit court erred in hearing the case when the appeal from magistrate court was not filed within ten days of the jury verdict. The state relies on S.C. Code Ann. § 18-3-30 (1985), which provides that “the appellant shall, within ten days after sentence, serve notice of appeal upon the magistrate who tried the case, stating the[*314] grounds upon which the appeal is founded.”

However, the statutory time for appeal has been enlarged by the following amendment regarding procedure in magistrate court:

No motion for a new trial may be heard unless made within five days from the rendering of the judgment. The right of appeal from the judgment exists for twenty-five days after the refusal of a motion for a new trial.

S.C. Ann. § 22-3-1000 (Supp. 1991).

The state argues that respondent’s appeal is from the DUI conviction and not from the denial of his motion for a new trial. Section 22-3-1000 specifically provides that the right of appeal from the judgment exists for twenty-five days after refusal of a motion for a new trial. As a rule, specific laws prevail over general laws, and later legislation takes precedence over earlier legislation. Lloyd v. Lloyd, 295 S.C. 55, 367 S.E. (2d) 153 (1988). We hold that the circuit court properly exercised jurisdiction over respondent’s timely appeal.

The state next asserts that the circuit court erred in considering respondent’s supplement to his notice of intent to appeal. The record does not reflect that the appellant objected to the filing of the supplement nor an exception before the circuit court. To preserve an issue for appellate review, an appellant must object at his first opportunity. See State v. Williams, 303 S.C. 410, 401 S.E. (2d) 168 (1991). Nonetheless, we find that the issue was preserved for appeal by respondent’s objection during trial to the introduction of evidence from field sobriety tests.

Seeking to elucidate Exception 14 under “Other Grounds,” the respondent filed a supplement to his notice of intent to appeal on June 5, 1991, over one year after the notice was filed, asserting error in the admission of testimony regarding the HGN test. Section 18-3-30 requires that within ten days after sentencing, the notice of appeal shall be served stating the grounds for appeal. [1] Exception 14 of the notice of intent to appeal follows in its entirety:

[*315] Whatever additional grounds that may appear as a result of the Return and/or the Transcript of Record.

We find the scope of Exception 14 too broad, in and of itself, to constitute a sufficient ground for appeal. However, we conclude that under the circumstances of this case, it is adequate to put the state on notice that additional exceptions may be asserted. The validity of the supplement to the notice of appeal is not before this Court inasmuch as it was not objected to nor was the issue of validity raised before or ruled upon by the circuit court.

Next, the state contends the circuit court erred in ruling inadmissable the testimony of the arresting officer concerning respondent’s HGN test.

The circuit judge expressed skepticism regarding HGN tests and noted that nystagmus may be caused by physiological forces other than alcohol consumption. [2] Additionally, the circuit court related reservations about police officers conducting and interpreting a medical/scientific test.

The record reflects that Trooper Merritt had received approximately twenty hours of training in HGN testing at DUI Detection School. Trooper Merritt testified that rather than being a medical test, the HGN test was a test of reaction analogous to standing on one foot.

This Court concludes that evidence resulting from HGN tests, as from other field sobriety tests, is admissible when the HGN test was used to elicit objective manifestations of soberness or insobriety. See State v. Nagel, 30 Ohio App. (3d) 80, 506 N.E. (2d) 285 (1985). We hold that evidence arising from HGN tests is not conclusive proof of DUI. A positive HGN test result is to be regarded as merely circumstantial evidence of DUI. Furthermore, HGN tests shall not constitute evidence to establish a specific degree of[*316] blood alcohol content. See State v. Garrett, 119 Idaho 878, 811 P. (2d) 488 (1991).

We hold that testimony relating to the HGN test was admissible in the present case because the HGN test was used in conjunction with other field sobriety tests to establish evidence of DUI.

Finally, the state contends the circuit court erred in finding that respondent was denied reasonable assistance in obtaining an independent blood test after he refused a breathalyzer test. We agree.

In State v. Lewis, 266 S.C. 45, 221 S.E. (2d) 524 (1976), this Court held that an officer does not have a duty to affirmatively assist persons in obtaining any independent tests when the accused refuses the breathalyzer test. Lewis only requires that a reasonable opportunity to obtain an independent blood test be afforded a person who refuses a breathalyzer test. See State v. Degnan, 305 S.C. 369, 409 S.E. (2d) 346 (1991).

The record reflects that the respondent was permitted the use of a telephone during the period of observation. We conclude that the “reasonable opportunity” requirement enunciated in Lems and Degnan were met in that the respondent was afforded ample time and the means by which to make arrangements for independent testing.

Accordingly, the circuit court order which reversed and remanded respondent’s DUI conviction is reversed; respondent’s magistrate court conviction and sentence are reinstated.

Reversed.

Harwell, C.J., and Chandler, Toal and Moore, JJ., concur.
1

We discern no inconsistency between the “ten days after sentence” provision in Section 18-3-30 and the “twenty-five days after refusal of a motion for a new trial” provided in Section 22-3-1000. The determination of which statute is applicable shall be based upon the facts of the particular case.

2

Nystagmus is described as an involuntary jerking of the eyeball, a condition that may be aggravated by the effect of chemical depressants on the central nervous system. State v. Superior Court of County of Cochise, 149 Ariz. 269, 271, 718 P. (2d) 171, 173 (1986) (citing The Merk Manual of Diagnosis and Therapy) (14th ed. 1982). The HGN test consists of the driver being asked to cover one eye and focus the other on an object held at the driver’s eye level by the officer. As the officer moves the object gradually out of the driver’s field of vision toward his ear, he watches the driver’s eyeballs to detect involuntary jerking. Id.