South Carolina Appellate Court Opinions for 2011 Will Have Significant Impact on Individuals Charged with Driving Under the Influence

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The South Carolina Appellate Court made some important decisions in 2011 regarding the gathering and handling of video evidence during police stops for individuals suspected of driving under the influence.

Best DUI Attorney in the Upstate 2011

Steve Sumner, Attorney at Law

There have been several significant appellate court opinions in South Carolina in 2011 dealing with DUI or driving under the Influence cases.

There have been several significant appellate court opinions in South Carolina in 2011 dealing with DUI or driving under the Influence cases. On March 2, 2011, the South Carolina Court of Appeals issued its opinion in State v. Branham (392 S.C. 225 (2011) 708 S.E.2d 806.) The Branham case stemmed from a defendant who appealed his conviction for DUI from the Lexington County, South Carolina Circuit Court. The Court held that a convicted DUI defendant could not overturn his conviction based on his argument that the state had failed to "produce" a videotape from the breath test site (his breath test) when his attorney had asked for it on the morning of the trial. The Court noted that the defendant's ticket stated that he could view the video at any time on-line. The crux issue before the court was the meaning of the word "produce" within the applicable statutory framework. The Court went on to define several terms from the statute, and went on to hold that the word "produce" means to "physically hand over the videotape." The Court found that the South Carolina legislature intended in misdemeanor DUI cases that a video tape of the breath test sequence must be created and maintained. Summing up their opinion, the South Carolina Court of Appeals held that by making the breath test video in this case available on line and accessible to the defendant, the state had met its burden of producing the video in this DUI case.

On April 6, 2011 the South Carolina Court of Appeals issued its formal opinion deciding Murphy v. State (The State of South Carolina In the Court of Appeals Opinion No. 4816 Submitted January 4, 2011 – Filed April 6, 2011.) In Murphy, the defendant Denise Murphy appealed her conviction from a misdemeanor DUI charge. Her conviction was affirmed. In this case the Court of Appeals extensively reviewed and relied upon the language contained in South Carolina Code Section 56-5-2953. This is commonly referred to as the "DUI Videotaping Statute."

Under subsection (A) of the statute, "the videotapes of the incident site and of the breath test site are admissible pursuant to the South Carolina Rules of Evidence in a criminal, administrative, or civil proceeding by any part to the action." S.C. Ann. § 56-5-2953(A). However, the remedy for noncompliance with the statute is dismissal. See City of Rock Hill v. Suchenski, 374 S.C. 12, 17, 646 S.E.2d 879, 881 (2007).

Here, the statute provides a person "must have his conduct at the incident site and breath test site videotaped." The videotaping at the incident site must "(a) begin not later than the activation of… blue lights and conclude after the arrest…" and "(b) include the person being advised of his Miranda rights before any field sobriety tests are administered, if the tests are administered." S.C. Code Ann § 56-5-2953(A)(1)(a)-(b).

Therefore, in regard to what must be recorded, the plain language of the statute is not violated as long as the recording captures (1) the accused's conduct and (2) Miranda warnings prior to field sobriety test, if such tests occur. Nothing in the plain language of the statute indicates that an accused remain in full view of the camera for the duration of the encounter. Rather, the statute only requires her "conduct" be recorded.

While certainly an individual's performance on such tests would be part and parcel of his or her "conduct" at the incident site, as mentioned, an unbroken recording of the tests is not necessary to capture conduct. Therefore, the recording need not display all field sobriety tests provided it captures the accused's conduct.

Accordingly, we find the plain language of the statue does not require that the recording capture a continuous full view of the accused, or capture all field sobriety tests. Rather, provided all other requirements are met, the video need only record the accused's conduct.

Critical to this decision is that Ms. Murphy was arrested and prosecuted pursuant to the South Carolina DUI statute in place at that time. In 2009, the South Carolina legislature significantly amended the DUI law in South Carolina. In footnote number four to the Murphy opinion the Court of Appeals stated as follows, "As amended in 2009, the current version of section 56-4-2953 expressly requires the recording of field sobriety tests. See S.C. Code Ann. § 56-5-2953(A)(1)(a)(ii) (Supp. 2010) ("The video recording at the incident site must:…include any field sobriety tests administered.") We note that the legislature's amendment of the plain language of the statue to require the recording of the field sobriety tests further bolsters our position that the plain language of the prior version, in effect at the time of this action, did not require recording of all tests.

In State v Hercheck (The State of South Carolina In the Court of Appeals Unpublished Opinion No. 2011-UP-161), an unpublished opinion filed on April 13, 2011, the South Carolina Court of Appeals addressed an appeal from the circuit court where a DUI case against the defendant had been dismissed for the Highway Patrol's failure to follow statutorily prescribed procedure for the videotaping of the breath test sequence.

The full text of this short opinion appears below:

    1. With regard to the circuit court's interpretation of section 56-5-2953, the plain language [3] of subsection 56-5-2953(A)(2)(d) mandates a twenty minute video-recording of the arrested individual's conduct during the breath test waiting period and no exception exists permitting premature termination of the videotaping in the event the arrested individual indicates he or she will not submit to the breath test. See S.C. Code Ann. § 56-5-2953(A)(2)(d) (2006) (stating the videotaping at the breath site "must also include the person's conduct during the required twenty-minute pre-test waiting period, unless the officer submits a sworn affidavit certifying that it was physically impossible to videotape this waiting period. However, if the arresting officer administers the breath test, the person's conduct during the twenty-minute pre-test waiting period must be videotaped.").

    2. With regard to whether the circuit court erred in failing to find the videotape complied with section 56-5-2953(A) under the totality of the circumstances provision of subsection (B), we find the circuit court's refusal to reverse the magistrate court's determination that the exceptions of subsection (B) were inapplicable in this case was not an error of law. See S.C. Code Ann. § 56-5-2953(B) (2006) (stating noncompliance with subsection (A)(1) does not automatically require the dismissal of a DUI if the officer submits a sworn affidavit certifying: (1) the video recording equipment was inoperable and reasonable efforts were made to maintain the equipment; or (2), "it was physically impossible to produce the video recording because the person needed emergency medical treatment"; or (3) "exigent circumstances existed," and providing "[n]othing in this section prohibits the court from considering any other valid reason for the failure to produce the videotape based upon the totality of the circumstances; nor do the provisions of this section prohibit the person from offering evidence relating to the arresting law enforcement officer's failure to produce the videotape."); S.C. Code Ann. § 14-25-105 (Supp. 2010) (stating in criminal appeals from the magistrate court, the circuit court does not conduct a de novo review); City of Rock Hill v. Suchenski, 374 S.C. 12, 15, 646 S.E.2d 879, 880 (2007) (stating in criminal cases, the appellate court reviews errors of law only; therefore, this court's scope of review is limited to correcting the circuit court's errors of law).

Last, in Town of Mount Pleasant v Roberts (The State of South Carolina In the Court of Appeals Opinion No. 27005 Heard June 7, 2011 – Filed July 11, 2011), the South Carolina Supreme Court issued a thorough opinion in a case of "first impression." The crux issue was as follows: "Can law enforcement agencies avoid the mandatory obligation to produce a field videotape of a DUI arrest by repeatedly not equipping DUI enforcement vehicles with dash cams?" In a word, no. The South Carolina Supreme Court recited both the language and the purpose of SC Code Section 56-5-2953. The Court held that the town's clear and protracted failure to equip its patrol vehicles with video cameras defeated the intent of the legislature and violated the statutorily created obligation to videotape DUI arrests. The Court pointed out that the town's explanation of why "dash cams" had not been placed in its patrol vehicles to be "disingenuous". The South Carolina legislature specifically provided for a dismissal of a DUI charge unless a law enforcement agency can justify its failure to produce a videotape of the DUI arrest; …."thus, we hold that dismissal of the DUI charge is the appropriate sanction in this case."

Attorney Steve Sumner completed both his undergraduate and graduate education in his home state of South Carolina, graduating from the University of South Carolina School of Law in 1992. He has been a practicing DUI Defense Attorney in Upstate South Carolina for almost 15 years. Before opening his practice, he was a S.C. court "DUI Prosecutor" for over two years. Steve has developed a reputation as a knowledgeable, skilled and aggressive defense attorney who is familiar with the nuances of the South Carolina DUI/Implied Consent laws, which can be complex. Steve was recently chosen by readers of The Greenville News as the "Best DUI Defense Attorney in the Upstate."

For more information, contact Steve Sumner at (864) 235-3834.


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