In 2007, the SC Supreme Court decided what would become a landmark case for DUI law in SC, City of Rock Hill v. Suchenski, finding that, if the arresting officer in a DUI case does not follow the mandatory provisions of SC’s videotape law, and if there is no valid excuse for the failure to comply, the remedy is dismissal of the defendant’s DUI charges.
In subsequent appellate opinions since Suchenski, the SC Supreme Court has repeatedly confirmed that the plain language of SC Code § 56-5-2953 – mandating dismissal of DUI charges if the officer does not comply with the videotaping requirements – means what it says.
That is, until last month’s decision in State v. Kenneth Taylor, where the SC Supreme Court found that 1) the plain language of SC Code § 56-5-2953 requires that the roadside video “show” the officer reading Miranda rights to the defendant and 2) a failure to comply, despite the plain language of SC Code § 56-5-2953, does not require dismissal of the DUI charges.
Dismissal is the Remedy for Failure to Follow SC’s Mandatory Videotape Law
SC requires that a police officer videotape 1) the traffic stop and arrest of a DUI defendant and 2) the defendant’s and the officer’s conduct during the breathalyzer testing procedure.
It’s important enough that the legislature made it mandatory and specified that the remedy for failure to make or produce a complete videotape is dismissal of the DUI charges. Why?
SC courts have said that “the primary intention behind section 56-5-2953 was to reduce the number of DUI trials heard as swearing contests by mandating the State videotape important events in the process of collecting DUI evidence.” (State v. Elwell)
Our courts have also pointed out that the legislature had two primary purposes in enacting SC Code § 56-5-2953:
- To create direct evidence of the DUI allegations by recording the defendant’s conduct during the traffic stop, including any field sobriety tests that are given, and
- To protect the rights of defendants by “requiring video recording of the person’s arrest and of the officer issuing Miranda” (State v. Taylor, 2014)
Sometimes, defendants lie. Sometimes, cops lie. Video keeps everyone honest and avoids the swearing contest where the cop says, “he was falling down and performed horribly on the FSTs,” while the defendant says, “I was sober, and I feel like I did great on the FSTs.”
Or, in the case of Miranda rights, the officer does not have to swear he or she read Miranda rights to the defendant, while the defendant swears the officer did not read them – attorneys, judges, and jurors can see and hear for themselves what happened on the roadside and in the Datamaster room.
SC Code § 56-5-2953
On the roadside, SC Code § 56-5-2953 requires the officer to record the defendant’s conduct during the traffic stop. The video must begin no later than the activation of the officer’s blue lights, and 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.
The officer (or Datamaster operator) must also record 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.
SC Code § 56-5-2953(B) provides that the DUI charges should not be dismissed if the failure to produce a videotape was reasonable or beyond the control of the officer:
Nothing in this section may be construed as prohibiting the introduction of other relevant evidence in the trial of a violation of Section 56-5-2930, 56-5-2933, or 56-5-2945. Failure by the arresting officer to produce the video recording required by this section is not alone a ground for dismissal of any charge made pursuant to Section 56-5-2930, 56-5-2933, or 56-5-2945 if the arresting officer submits a sworn affidavit certifying that the video recording equipment at the time of the arrest or probable cause determination, or video equipment at the breath test facility was in an inoperable condition, stating which reasonable efforts have been made to maintain the equipment in an operable condition, and certifying that there was no other operable breath test facility available in the county or, in the alternative, submits a sworn affidavit certifying that it was physically impossible to produce the video recording because the person needed emergency medical treatment, or exigent circumstances existed. In circumstances including, but not limited to, road blocks, traffic accident investigations, and citizens’ arrests, where an arrest has been made and the video recording equipment has not been activated by blue lights, the failure by the arresting officer to produce the video recordings required by this section is not alone a ground for dismissal. However, as soon as video recording is practicable in these circumstances, video recording must begin and conform with the provisions of this section.
In City of Rock Hill v. Suchenski, the SC Supreme Court held that dismissal is, in fact, the remedy, and the courts must do what the statute says. Subsequent SC appellate opinions have consistently confirmed that DUI cases should be dismissed when the state fails to comply with the mandatory videotape statute unless there is a valid reason for the failure to comply.
State v. Taylor – a Major Change to SC DUI Law
In State v. Kenneth Taylor, decided last month, the SC Supreme Court reversed itself, inexplicably holding that 1) SC Code § 56-5-2953 requires the officer to “show” the reading of Miranda rights to the defendant, but 2) dismissal is not the proper remedy.
First, the court explained the rules of statutory construction in detail, finding that the legislature intended for the roadside video to show the officer reading Miranda rights to a DUI defendant:
Where a statute’s language is plain, unambiguous, and conveys a clear and definite meaning, the rules of statutory interpretation are not needed, and the Court has no right to impose another meaning… A statute’s language must be construed in light of its intended purpose, and “[w]henever possible, legislative intent should be found in the plain language of the statute itself…” “The Court should give words ‘their plain and ordinary meaning without resort to subtle or forced construction to limit or expand the statute’s operation…'”
Then, ignoring the rules of statutory construction, the Court goes on to find that, when the officer fails to show the reading of Miranda rights on the video, the remedy is not dismissal, but suppression of any statements taken in violation of Miranda:
However, we take this opportunity to clarify that moving forward, when a DUI suspect is not Mirandized in accordance with the statute, statements made by the suspect during custodial interrogation are to be considered given under the cloud of a Miranda violation. However, just as is proper when there is a Miranda violation in any other kind of case, suppression of tainted evidence—not per se dismissal of the DUI charge—is the proper remedy.
The Court does not explain how this is so considering that, in prior decisions, they have interpreted the plain language of the statute as requiring dismissal when the officer does not comply with the statutory requirements and when there is no valid excuse for the failure to comply.
What should we make of this decision?
A cynical observer would say it looks like the Court is going to bend the laws, ignore the intent of the legislature, and make their own rules to help prosecutors get DUI convictions…
Given the Court’s willingness to ignore the plain language of SC Code § 56-5-2953 and to ignore their own prior decisions on the matter, we can expect to see the Court continue to walk back their prior decisions.
If they can find that dismissal is not the proper remedy for an officer’s failure to comply with one part of SC Code § 56-5-2953, why wouldn’t they continue in future cases to find that dismissal is not the proper remedy for an officer’s failure to comply with another section of the statute?
In the meantime, the remedy for an officer’s failure to comply with the requirements of the videotape statute – unless it is a failure to videotape the reading of Miranda – is still dismissal of the DUI charges.
DUI Defense Lawyers in Columbia, SC, and Myrtle Beach, SC
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.