CHARLESTON, SC (WCSC) - A judge has denied a defense request to dismiss a DUI charge against state Sen. Paul Campbell, but has ruled a breath test won't be allowed in court.
Judge Elbert O. Duffie III made the ruling Tuesday, according to court documents.
Campbell, the executive director and CEO of the Charleston County Aviation Authority, was charged with driving under the influence on the night of Nov. 4, 2017.
Campbell's lawyer, Andy Savage, asked the court for the case to be dismissed on multiple grounds, including that Campbell's feet were not visible in video of a field sobriety test and that the officer who booked Campbell did not provide an independent blood-alcohol test when Campbell asked for one.
Duffie ruled the law did not specifically require that Campbell's feet be on camera because the test involved multiple factors and that the video "sufficiently shows the administration of the walk and turn field sobriety tests" to meet the requirement of the law.
But Duffie did rule the breathalyzer test inadmissible on the grounds the arresting officer did not provide "affirmative assistance" to Campbell when he asked for a blood test to be taken. Duffie wrote the failure to make arrangements for Campbell to undergo a blood test was a violation of state law.
Duffie's order cites a relevant portion of Section 56-5-2950 of state law:
The arresting officer shall provide affirmative assistance to the person to contact a qualified person to conduct and obtain additional tests. Affirmative assistance, at a minimum, includes providing transportation for the person to the nearest medical facility which performs blood tests to determine a person's alcohol concentration. If the medical facility obtains the blood sample but refuses or fails to test the blood sample to determine a person's alcohol concentration, SLED shall test the blood sample and provide the result to the person and to the arresting officer. Failure to provide affirmative assistance upon request to obtain additional tests bars the admissibility of the breath test result in a judicial or administrative proceeding.
Duffie wrote that in video of the interaction between Campbell and the officer at the breath test site, "the officer can clearly be seen and heard advising the defendant of his right to have an independent test conducted at his expense and that the officer will provide affirmative assistance."
When the Datamaster test returned a .09 blood alcohol level, Campbell asks in the video if he can take the test again and the officer tells him, "No," the document states.
"The defendant then asked, 'Can I do a blood alcohol?' and the officer told him, 'This is all we got' without taking any further action toward the request," Duffie wrote.
Duffie did not dismiss the case, however, because he said he did not have statutory authority to dismiss the DUI charge in the pre-trial process.