When you call a DUI defense lawyer, you probably are not looking for a guilty plea, a reduced charge, or a victory at trial.
What most people want is to get their DUI dismissed – does that happen? Can we make that happen for you?
Maybe – depending on the facts of your case and what we uncover during our investigation, it may be possible to get your DUI dismissed, rewritten to a traffic violation other than DUI, or to win your case at trial.
Below, we will go over some of the more common scenarios where DUI charges can be dismissed before trial, including:
- When there was no probable cause for the traffic stop or arrest,
- When the officer does not follow SC’s mandatory videotape law, and
- When the blood alcohol test results are excluded from your trial.
How to Get a DUI Dismissed in SC
How do you get your DUI charges dismissed?
First, your DUI defense lawyer will investigate your case, gathering information that could be used to get your case dismissed or to get the evidence excluded, including discovery from the prosecutor under Brady and Rule 5 and your attorney’s independent investigation of your case.
Your attorney will then research SC DUI law as applied to the facts of your case, communicate with your prosecutor about why your case should be dismissed, and argue your motions to the court (usually on the day of trial) if the case has not been dismissed or if they have not made a plea offer you can accept.
The most common arguments that result in dismissal (as opposed to the suppression of evidence) are a lack of probable cause and the officer’s failure to follow the requirements of SC’s DUI videotape law.
If there was no probable cause for the traffic stop, then everything that comes after the traffic stop should be excluded from evidence (as “fruit of the poisonous tree”), resulting in dismissal of the case.
Similarly, if there was no probable cause for the arrest – no objective evidence that supports the officer’s claim that you were driving while intoxicated, the case should be dismissed before your trial begins.
SC’s Mandatory Videotape Law
SC Code § 56-5-2953 requires the arresting officer in every DUI case to record a suspect’s conduct at both the incident site and the breath test site – this provides solid evidence for the police in many cases, but it also provides a recording of the incident that a defense lawyer, judge, or juror can review to keep the police honest…
At the incident site (when the officer pulls you over on the highway), the video must begin no later than when the officer activates his or her blue lights, and it must include:
- Field sobriety tests if they are given – including the person’s feet and legs so the court and jurors can judge the person’s performance on the tests,
- The arrest of the suspect, and
- The reading of Miranda rights to the suspect.
In the Datamaster room (the room where they offer you the breath test), the video must include the entire breath testing procedure, including:
- The person taking the test or refusing the test,
- The actions of the Datamaster operator (which may or may not be the same person as the arresting officer) while they are administering the test,
- The Datamaster operator informing the person that they are being recorded,
- The Datamaster operator informing the person that they have the right to refuse the test, and
- The person’s conduct during the 20-minute observation period before the test is offered.
What if There is No Video or an Incomplete Video?
The officer’s failure to comply with the statute may be excused if they produce a valid affidavit that certifies that:
- The equipment was inoperable,
- Reasonable efforts were made to maintain the equipment (and specifically what was done), and
- There was no other operable breath test machine in the county.
A failure to comply may also be excused if the officer produces a valid affidavit stating that it was impossible to follow the statute due to a need for emergency medical treatment or other exigent circumstances.
If there is no valid affidavit, the SC Supreme Court has said in City of Rock Hill v. Suchenski and subsequent cases that the remedy for the officer’s failure to produce a complete video is dismissal – not a reduction or plea to a rewritten traffic offense.
How to Get Breathalyzer Results Excluded from Trial
In some cases, it is not possible to get your case dismissed before trial, but it may be possible to get the breathalyzer or blood test results excluded before trial.
For example, if your attorney can prove that there is a problem with the Datamaster test or the blood test, or if the officer did not follow SLED policy and procedure when taking the breath or blood sample, the remedy may be the exclusion of the questionable evidence rather than dismissal of your DUI case.
Dismissal is the remedy for an officer’s failure to follow the requirements of SC Code § 56-5-2953 because the statute specifically says that dismissal is the remedy, whereas, in other situations, suppression is the remedy when evidence is unreliable due to the circumstances of your case and the officer’s actions.
If the Evidence is Suppressed Will My DUI Get Dismissed?
Will your DUI get dismissed if the breathalyzer result or blood alcohol test results are excluded?
The breath test results are just one piece of evidence that a prosecutor can use to prove intoxication – even if the results are excluded, the state might be able to go forward with a trial using the officer’s testimony about your appearance, the video showing your performance on field sobriety tests or your behavior in the Datamaster room, or the testimony of other witnesses as to your appearance, behavior, or the odor of alcohol.
As a practical matter, however, not having breath or blood test results makes a DUI charge more difficult to prove, and the prosecutor is more likely to offer a reduced charge, a re-write of your ticket, or dismissal of your DUI charges.
Questions About How to Get Your DUI Dismissed?
The Myrtle Beach and Columbia, SC criminal defense lawyers at the Thompson & Hiller Defense Firm focus exclusively on criminal defense cases in SC, including driving under the influence charges. We have obtained dismissals, pre-trial diversion resulting in dismissals, or acquittals following trial in hundreds of criminal cases, and we have a record of proven results.
If you have been charged with a crime in SC or if you think you may be under investigation, call us now at 843-444-6122 or contact us through our website for a free initial consultation to find out if we can help.