As we move into 2014, I have taken the opportunity to briefly summarize some of the more critical DUI/drunk driving court opinions from 2013 that will affect South Carolina drivers accused or charged with DUI/drunk driving.
US Supreme Court
Missouri v. McNeely 133 S. Ct. 832 (2013):
FACTS:
The defendant declined a breath test; and afterwards, he was arrested for DUI and forced to provide a blood sample. The arresting officer never attempted to obtain a search warrant prior to the blood test.
ISSUE:
Does the lone factor that a suspect’s blood alcohol level is dissipating justify a warrantless blood draw in DUI/drunk driving cases?
HOLDING:
No. In DUI cases, the natural dissipation of alcohol in a suspect’s blood stream does not constitute an “exigent circumstance” in every case sufficient to justify conducting a blood test without first obtaining a search warrant.
South Carolina Supreme Court
State v. Hercheck 743 SE 2d 798, 403 SC 597 (2013)
State v. Elwell 743 SE 2d 802, 403 SC 606 (2013) (these two cases were consolidated for the purposes of oral argument from the South Carolina Court of Appeals):
FACTS:
Both defendants verbally refused to offer a breath sample prior to the expiration of the twenty (20) minute observation period which is required in South Carolina prior to providing a breath sample. In both cases, the police officers terminated or ended the statutorily required videotaping of the defendant concurrent with their refusal to take the test, and prior to the expiration of the twenty (20) minute observation period.
ISSUE:
Does South Carolina Code Section 56-5-2953 require law enforcement officers to videotape a twenty (20) minute pre-test waiting period when the arrestee refuses to take the breath test?
HOLDING:
No. South Carolina Code Section 56-5-2953 does not require a law enforcement officer to videotape the entire twenty (20) minute pre-test waiting period once the arrestee refuses a breath test. A valid legal construction of the statutory subsection at issue is that only when the waiting period is required can the videotape recording also be required; and if no test is administered, then the twenty (20) minute waiting period is unnecessary and there does not have to be a videotape recording provided.
South Carolina Court of Appeals
Chisolm v. SCDMV 741 SE 2d 42, 402 SC 593 (2013):
FACTS:
The defendant was offered a breath test and actually blew into the DataMaster machine for approximately one minute and fifty-three seconds. The arresting officer testified that the machine was emitting a “steady tone” (meaning air was going into the breath testing instrument); however, the officer also testified that the instrument would ” just not read it”. Because the machine would not read the sample, the arresting officer considered it to be a “refusal” by the defendant to take the breath test and initiated a six month administrative suspension of her license.
ISSUE:
Does a “legal refusal” only take place when the defendant actually refuses the conscious act of blowing into the breath machine?
HOLDING:
Yes. South Carolina, a “legal refusal” only takes place when the test subject actually refuses the conscious act of blowing into the instrument.
City of Greer v. Humble 742 SE 2d 15, 402 SC 609 (2013):
FACTS:
The arresting officer did not have a video recording of the defendant pursuant to the requirements of SC Code Section 56-5-2953. The officer submitted a form affidavit certifying that the video recording equipment in his car at the time of the arrest was “inoperable and stating that reasonable efforts had been made to maintain the equipment in an operable condition.”
ISSUE:
Did the Circuit Court err in reversing the municipal court’s dismissal of Humble’s DUI charge because the affidavit required by South Carolina Code Section 56-5-2953(b) was deficient on its face?
HOLDING:
Yes, the Circuit Court erred in overturning the original dismissal of the DUI charge. The applicable statute now requires an officer to state which reasonable efforts had been made to maintain the video recording equipment in an operable condition. The affidavit Officer Williams provided to the municipal court did not state which reasonable efforts were made to maintain the video recording equipment in an operable condition; thus, the City of Greer failed to comply with the plain statutory requirements of Section 56-5-2953. A supplemental affidavit was never filed and the oral testimony presented at trial to supplement the affidavit was insufficient to meet the affidavit requirements of the statute.
State v. Henkel Appellate Case No.: 2011-184986, No. 5159, filed: July 10, 2013:
FACTS:
The driver of a vehicle involved in a one car wreck was subsequently apprehended near the scene. The arresting officer found the defendant being examined by EMS in an ambulance. The officer then read the defendant his Miranda rights and performed a field test inside the ambulance. The defendant later failed the “ABC’s” field test. Once inside the patrol car, the officer turned the dashboard video camera toward the defendant and again read him his Miranda rights.
ISSUE:
Did the trial court correctly find that the video tapes offered into evidence complied with South Carolina Code Section 56-5-2953?
HOLDING:
No. Accordingly, the trial court’s decision was reversed and the defendant’s conviction for DUI was vacated. SC Code Section 56-5-2953(A) requires that the videotaping at the incident site “include the person being advised of his Miranda rights before any field sobriety tests are administered” if the tests are administered. Because the videotape did not include Sgt. Hiott giving the defendant Henkel his Miranda warnings, it did not conform to the provisions of SC Code Section 56-5-2953. Accordingly, the trial court was required to dismiss the charge, and it erred by not doing so.
South Carolina DUI Attorney Steve Sumner primarily handles misdemeanor and felony DUI/drunk driving defense. Steve is a South Carolina Super Lawyer® in the field of DUI defense. He is a member of the National Trial Lawyers: Top 100 Trial Lawyers™. He is a member the National College for DUI Defense, holds an AV-preeminent rating from Martindale-Hubbell® and a “Superb” ranking with Avvo. He is a frequent lecturer and author on topics related to the defense of DUI charges. He represents clients in Greenville, Spartanburg and Anderson counties, South Carolina.
