\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The mandates and interpretations you need to know to represent your DUI client.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0It is homecoming weekend and one of your old college buddies has come into town. After an exciting Saturday game, his wife calls you early Sunday morning with some troubling news. After leaving the post-game festivities and driving to his hotel, your friend was arrested for DUI, and now needs your help. Naturally, you want to conduct a thorough investigation in hopes of winning the case for your friend and client.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0While the facts underpinning every DUI case will always be different and should be fully investigated, recent changes to South Carolina's DUI Videotaping statute and appellate decisions have created a situation where every DUI defense lawyer should always examine law enforcement's video of his client. This step is important not only to review the conduct of the client, but also to determine if law enforcement has complied with statutory requirements. In situations where law enforcement has not strictly complied with videotaping requirements, charges often may be dismissed without ever addressing the merits of the case or the client's conduct.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0S.C. Code § 56-5-29531 governs the videotaping of persons charged with one of three enumerated offenses: (1) DUI-Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs (§ 56-5-2930), (2) DUAC-Driving with an Unlawful Alcohol Concentration (§ 56-5-2933), and (3) Causing Great Bodily Injury or Death by Operating a Vehicle While Under the Influence of Drugs or Alcohol (§ 56-5-2945).
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The statute requires that a person charged with one of these offenses must have his conduct videotaped at both the incident site and the breath test site.2
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Incident site videotaping
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Subsection (l)(a) of § 56-5-2953(A) mandates that the incident site video recording:
(a) not begin later than the activation of the officer's blue lights;
(b) include any field sobriety tests administered; and
(c) include the arrest of a person for a violation of Section 56-5-2930 or Section 56-5-2933, or a probable cause determination in that the person violated Section 56-5-2945, and show the person being advised of his Miranda rights.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Breath test site videotaping
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Subsection (2) of § 56-5-2953(A) mandates that the breath test site recording:
(a) include the entire breath test procedure, the person being informed that he is being video recorded, and that he has the right to refuse the test;
(b) include the person taking or refusing the breath test and the actions of the breath test operator while conducting the test; and
(c) also include the person's conduct during the required 20-minute pre-test waiting period, unless the officer submits a sworn affidavit certifying that it was physically impossible to video record this waiting period.4
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In reviewing the videotape of your friend's arrest, you find that it begins when the officer turns on his blue lights, shows the officer advising your friend of his Miranda rights, and includes the field sobriety test and the arrest of your friend. Based on this information, you may conclude that subsection (A)(1) has probably not been violated by the officer. Additionally, if the videotape of the breath site shows both your friend and the breath test operator, contains the entire breath test procedure, including your friend being advised that he is being recorded and advised of his right to refuse the test, as well as the 20-minute pretest wait period, subsection (A)(2) has probably not been violated.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0If, however, the State has not produced a videotape that contains all of the mandatory requirements of § 56-5-2953(A), you may be entitled to a dismissal of your friend's charges. The S.C. Supreme Court has declared that the videotaping requirements of subsection (A) are mandatory and not optional. Additionally, the accused is not required to establish prejudice when seeking dismissal of the charge based on subsection (A).5 The purpose of this subsection is to establish an affirmative duty of the State to create "direct evidence" of the Dili arrest.6 The Supreme Court and Court of Appeals have held that where a trial court is presented with an unexcused failure to comply with § 59-5-2953(A), dismissal of the charge is the appropriate remedy7
As evidenced by this Court's decision in Suchenski, the Legislature clearly intended for a per se dismissal in the event a law enforcement agency violates the mandatory provisions of section 56-5-2953. Notably, the Legislature specifically provided for the dismissal of a Dili charge unless the law enforcement agency can justify its failure to produce a videotape of a Dili arrest. Id. § 56-5-2953(B) ("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 ... if [certain exceptions are met]."). The term "dismissal" is significant as it explicitly designates a sanction for an agency's failure to adhere to the requirements of section 56-5-2953.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Furthermore, it is instructive that the legislature has not mandated videotaping in any other criminal context. Despite the potential significance of videotaping oral confessions, the legislature has not required the State to do...