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March 31, 2015

South Carolina Senate Subcommittee Considering Mandatory Body Cameras for South Carolina Officers

South Carolina Senate Subcommittee Considering Mandatory Body Cameras for South Carolina Officerscategories: DUI

A South Carolina State Senate Subcommittee recently heard arguments from both sides regarding a pending bill that would require all South Carolina police officers to wear body cameras. Briefly – the bill would require all law enforcement officers in South Carolina to wear body cameras that would record all of their contact with the public.

The voices against mandatory body cameras (primarily from law enforcement) point to the cost of outfitting all officers along with the cost of storing doubt. The data storage cost could be substantial when one thinks about the volumes of footage that would have to be retained and stored for years under current Freedom of Information Act requirements. Several estimates put the anticipated storage expenses into millions of dollars a year for some cities. Other concerns raised would include privacy; for example, when an officer comes into a home on a criminal domestic violence call; or, officers working undercover. Certainly all of the issues raised have merit.Read More

Supporters of body cameras argue that they help courts close cases faster, reduce the number of items that officers use force, and make allegations of misconduct against officers easy to investigate for both parties.

An interesting question for South Carolina drivers accused of DUI/drunk driving, is how would mandatory body cameras fit within the current statutory scheme of SC Code 56-5-2953? An argument could be made that the video recording requirements present in DUI investigations would be extended to cover all officers present with body cameras if they recorded any field sobriety tests administered to the driver; and/or show the person being arrested; and/or showed the driver being advised of their Miranda rights. Critically – these are all mandatory requirements of South Carolina’s current DUI law as it relates to “dash cams.” If South Carolina makes “body cams” mandatory then I believe a strong argument could be made under SC Code Section 56-5-2953 that all body cam footage be provided to the defense prior to a DUI/drunk driving trial. An interesting question would be if an officer has a body cam and does not follow the requirements of 56-5-2953, what is the remedy? The current judicial remedy for failure of the police to meet the requirements 56-5-2953 is dismissal of the DUI/drunk driving charge.

Greenville, South Carolina DUI Attorney Steve Sumner primarily handles misdemeanor and felony DUI/drunk driving cases. Steve is a former DUI prosecutor and has been in private practice since 1994. Steve has been recognized as a South Carolina Super Lawyer® in the field of DUI defense since 2013. He is a member of the National Trial Lawyers: Top 100 Trial Lawyers™ for criminal defense. He is a member of the National College for DUI Defense and has held a judicially endorsed AV-Preeminent rating from Martindale-Hubbell® and a “Superb” (10.0 out 10.0) ranking with Avvo since 2011.

http://www.thestate.com/2015/03/04/4024004_officers-concerned-about-bill.html?rh=1

http://www.wsj.com/articles/los-angeles-police-kill-man-in-struggle-captured-on-video-1425302531

http://www.wsj.com/articles/task-force-report-calls-for-more-body-cameras-1425257551

SC Code Section 56-5-2953

March 14, 2015

South Carolina Senator Paul Thurmond Introduces Bill to Clear up Expungement Difficulties

South Carolina Senator Paul Thurmond Introduces Bill to Clear up Expungement Difficultiescategories: DUI

South Carolina State Senator Paul Thurmond introduced a bill in the State Senate on January 13, 2015, to clean up confusion regarding the right of a South Carolina driver to have a DUI/drunk driving arrest expunged from their criminal history information. “S.255” makes it clear that any South Carolina driver acquitted of DUI/drunk driving (by negotiated agreement or judicial dismissal) is eligible for the initial charge to be expunged (erased) from all criminal record keeping entities.Read More

It has always been the case in South Carolina that any criminal charge for which a person is acquitted, or the charge is dismissed, etcetera was eligible to have the charge expunged from their record. Unfortunately, a Scribner’s error in the latest version of South Carolina Code Section 17-1-40 (E)(1) has resulted in South Carolina driver’s not being able to expunge the original DUI/drunk driving charge. The latest version of South Carolina Code Section 17-1-40 became effective on January 9, 2014. This mistake was not intended to happen – and Senator Thurmond is leading the charge to rectify it.

Additionally, Senator Thurmond’s bill (see below for link to the bill itself) would also require any and all websites that contain arrest and booking records – or mug shots – of South Carolina citizens acquitted of any criminal charges to expunge these records upon a proper request. If passed into law, Senator Thurmond’s bill would be a substantial improvement over South Carolina’s current expungement statute (see link below). Even assuming the current mistake is corrected allowing for the expungement of DUI/drunk driving arrests, the current statute does not reach or apply to private websites which in 2015 are in existence and do publish arrest and booking records of South Carolina citizens. This would be a vast improvement over the current law and allow South Carolina drivers accused of DUI/drunk driving to have all information connected with that arrest expunged from both public and private sources – assuming an acquittal occurs.

Let’s hope Senator Thurmond’s bill becomes the law in South Carolina soon. It would remedy the Scribner’s error described above and allow the resumption of expungements on DUI/drunk driving charges – and, stretch out to encompass private entities who publish this information as well.

SC Code Section 17-1-40

S.255

March 12, 2015

No Changes are Needed to South Carolina’s DUI Video Recording Law

No Changes are Needed to South Carolina’s DUI Video Recording Lawcategories: DUI

In 1998 South Carolina became one of the first states to require and mandate video recording from the officer’s dash cam in DUI/drunk driving cases. In 2009 the South Carolina legislature passed a new, amended and updated law requiring both incident site and breath test site video recordings in DUI cases. Our current law requires that a driver who is accused of violating the DUI law “must have his conduct at the incident site and the breath test site video recorded… the video recording at the incident site must: not begin later than the activation of the officer’s blue lights; include any field sobriety tests administered; and include the arrest of the driver for the DUI violation and show the driver being advised of their Miranda rights.” Likewise – a video recording of the complete breathalyzer testing procedure must also be provided (see full text of SC Code Section 56-5-2953 link below).Read More

In 2009 the legislature also dramatically increased and stiffened penalties in most DUI cases. For instance – a driver convicted of DUI in South Carolina with a breathalyzer reading of .16 or higher is subject to ninety (90) days in jail. Recent court decisions have mandated that law enforcement simply follow the law when making DUI/drunk driving cases – and that the dash cam and breathalyzer videos must comply with the law currently in place. Our courts have developed a harsh remedy for non-compliance with the video recording requirements – potential dismissal of the DUI charge.

Quite simply – the law is in place and the stakes are high – so dismissal must be the only and appropriate remedy for police officers not following the law with video recording.

Yesterday in Columbia, South Carolina, some members of the South Carolina Sheriff’s Association, prosecutors and victim advocates from across South Carolina met on the statehouse grounds and called upon the South Carolina General Assembly to eliminate and cut back the video recording provisions of the state’s DUI laws that I noted above. During the media conference, officials presented four videos that showed DUI suspects where the videos did not meet the requirements of our law – and the cases were dismissed.

Legislation has been introduced in both the South Carolina House and Senate that would prevent a DUI case from being dismissed if a problem exists in the video recording of the initial stop.

Sixteenth Circuit Solicitor Kevin Brackett, York County Sheriff Bruce Bryant and MADD state director Steven Burritt were among those who addressed the media requesting that our legislature cut back on the current video recording requirements in DUI cases.

I am not one of those voices, and I will continue to appear at legislative subcommittee hearings to fight any attempts to scale back on our videotape law in DUI cases. I have done so many times in the past – and will do so again this year. It is only common sense that if field sobriety tests are going to be used to gain a conviction in court – that they be completely viewable to a jury. It is critical that this fair and well thought out law passed in 2009 requiring video recording in DUI cases be kept completely intact. To cut back on our video law would take us back to the days of when police officers could fabricate how a driver performed on certain field tests in front of a jury. The mandated video recording evidence should – and does – speak for itself in a jury trial for DUI. Let’s hope that any changes to our DUI law eliminating or cutting back on video recording do not take place.

Link to The State article

Link to South Carolina Code Section 56-5-2953

February 28, 2015

South Carolina Legislative Bill “H.3441″ Would Gut Current Video Recording Requirements in South Carolina DUI Cases

South Carolina Legislative Bill “H.3441” Would Gut Current Video Recording Requirements in South Carolina DUI Casescategories: DUI

On January 28, 2015, SC House Bill “H.3441” was introduced and read for the first time in the 2015 South Carolina General Assembly session; and on that same day it was referred to the South Carolina House Judiciary Committee (see link below to full version of the bill). In summary, H.3441 would substantially cut down and virtually eliminate current mandatory video recording requirements for DUI/drunk driving investigations in South Carolina. The primary changes proposed in H.3441 consist of replacing the words “must” and “shall” with “should”. In other words – the video recording “should” begin no later than the activation of the officer’s blue lights; “should make a reasonable attempt to video record the driver”, ” should include the entire breath test procedure”, etcetera.Read More

While there are many reasons to vigorously oppose this bill, below please find a few that quickly come to mind:

1. That it is not difficult for law enforcement to comply with the requirements of our current statute in video recording the complete field sobriety tests in a DUI case. Since the performance and results of a field sobriety test are critical are often relied upon as critical evidence in a DUI prosecution, the requirement that all field sobriety tests be completely viewable by a jury should remain intact.

2. The recent South Carolina Court of Appeals opinion in State vs. Taylor has clarified what elements a field videotape must have – and that anything not statutorily required does not have to be captured on the videotape for successful prosecution to occur. Since 2009 our appellate courts have done an excellent job of interpreting and clarifying the requirements of our videotaping law. This latest opinion shows the common sense approach of our courts – and how that is progressing steadily.

3. “Cutting back or watering down” our current dash cam requirements would probably result in monies currently being used for installation and maintenance of cameras to be diverted elsewhere. If the law does not require it – then those dollars are ultimately going to be placed somewhere else in the budget. In just a few short years many of the police cars currently equipped with functioning dash cams could disappear. There is no way to overstate the evidentiary value of video recording in 2015. There is simply no way to do it.

As I have done in the past – I will continue to vigorously oppose any changes to our DUI video recording law in South Carolina.

Link to H.3441

February 23, 2015

No Changes are Needed to South Carolina’s DUI Video Recording Law

No Changes are Needed to South Carolina’s DUI Video Recording Law

Quite simply – the law is in place and the stakes are high – so dismissal must be the only and appropriate remedy for police officers not following the law with video recording.

Legislation has been introduced in both the South Carolina House and Senate that would prevent a DUI case from being dismissed if a problem exists in the video recording of the initial stop.

Link to The State article

Link to South Carolina Code Section 56-5-2953

January 3, 2015

The Year in Review: Significant Court Decisions for South Carolina Drivers Accused of DUI/Drunk Driving

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.

What is an Administrative Hearing in South Carolina in DUI/Drunk Driving Cases?

First, this is a confusing area of the law for many drivers who find themselves arrested or charged with DUI and also facing an “administrative suspension.” If you are confused it is probably because it is confusing. What is an “administrative suspension” and what is an “administrative hearing?”

The South Carolina law on point is fully listed below, but here are the highlights:

1. An administrative suspension is totally separate and distinct from the DUI charge. It is handled in front of a different court where different rules and procedures apply than the DUI charge.

2. An administrative suspension is usually sought against a driver in a DUI case who either refuses the breath test or takes the breath test and registers .15 percent or higher.

3. An administrative suspension from 30 days on up to six months, generally, is what is at stake for the driver in this administrative action. Any suspension levied administratively is in addition to any license suspensions levied because of a DUI conviction.

4. The hearing takes place before a hearing officer and not a jury. The basic issues are whether or not there was probable cause to justify the DUI arrest, and whether or not the breath test was offered according to SLED procedure.

5. An important point is that this hearing must be requested promptly within 30 days of the date of the arrest or else the driver has forfeited the right for this hearing.

SECTION 56-5-2951. Suspension of license for refusal to submit to testing or for certain level of alcohol concentration; temporary alcohol license; administrative hearing; restricted driver’s license; penalties.

(A) The Department of Motor Vehicles must suspend the driver’s license, permit, or nonresident operating privilege of or deny the issuance of a license or permit to a person who drives a motor vehicle and refuses to submit to a test provided for in Section 56-5-2950 or has an alcohol concentration of fifteen one-hundredths of one percent or more. The arresting officer must issue a notice of suspension which is effective beginning on the date of the alleged violation of Section 56-5-2930, 56-5-2933, or 56-5-2945.

(B) Within thirty days of the issuance of the notice of suspension, the person may:

(1) obtain a temporary alcohol license by filing with the Department of Motor Vehicles a form for this purpose. A one hundred dollar fee must be assessed for obtaining a temporary alcohol license. Twenty-five dollars of the fee must be distributed by the Department of Motor Vehicles to the Department of Public Safety for supplying and maintaining all necessary vehicle videotaping equipment. The remaining seventy-five dollars must be placed by the Comptroller General into a special restricted account to be used by the Department of Motor Vehicles to defray its expenses. The temporary alcohol license allows the person to drive without any restrictive conditions pending the outcome of the contested case hearing provided for in subsection (F) or the final decision or disposition of the matter. If the suspension is upheld at the contested case hearing, the temporary alcohol license remains in effect until the Office of Motor Vehicle Hearings issues the hearing officer’s decision and the Department of Motor Vehicles sends notice to the person that he is eligible to receive a restricted license pursuant to subsection (H); and

(2) request a contested case hearing before the Office of Motor Vehicle Hearings in accordance with its rules of procedure.

At the contested case hearing if:

(a) the suspension is upheld, the person’s driver’s license, permit, or nonresident operating privilege must be suspended or the person must be denied the issuance of a license or permit for the remainder of the suspension period provided for in subsection (I). Within thirty days of the issuance of the notice that the suspension has been upheld, the person must enroll in an Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990;

(b) the suspension is overturned, the person must have his driver’s license, permit, or nonresident operating privilege reinstated.

The provisions of this subsection do not affect the trial for a violation of Section 56-5-2930, 56-5-2933, or 56-5-2945.

(C) The period of suspension provided for in subsection (I) begins on the day the notice of suspension is issued, or at the expiration of any other suspensions, and continues until the person applies for a temporary alcohol license and requests a contested case hearing.

(D) If a person does not request a contested case hearing, he waives his right to the hearing, and his suspension must not be stayed but continues for the period provided for in subsection (I).

(E) The notice of suspension must advise the person of his right to obtain a temporary alcohol driver’s license and to request a contested case hearing before the Office of Motor Vehicle Hearings. The notice of suspension also must advise the person that, if he does not request a contested case hearing within thirty days of the issuance of the notice of suspension, he waives his right to the administrative hearing, and the suspension continues for the period provided for in subsection (I). The notice of suspension also must advise the person that if the suspension is upheld at the contested case hearing or if he does not request a contested case hearing, he must enroll in an Alcohol and Drug Safety Action Program.

(F) A contested case hearing must be held after the request for the hearing is received by the Office of Motor Vehicle Hearings. The scope of the hearing is limited to whether the person:

(1) was lawfully arrested or detained;

(2) was given a written copy of and verbally informed of the rights enumerated in Section 56-5-2950;

(3) refused to submit to a test pursuant to Section 56-5-2950; or

(4) consented to taking a test pursuant to Section 56-5-2950, and the:

(a) reported alcohol concentration at the time of testing was fifteen one-hundredths of one percent or more;

(b) individual who administered the test or took samples was qualified pursuant to Section 56-5-2950;

(d) machine was working properly.

Nothing in this section prohibits the introduction of evidence at the contested case hearing on the issue of the accuracy of the breath test result.

A written order must be issued to all parties either reversing or upholding the suspension of the person’s license, permit, or nonresident’s operating privilege, or denying the issuance of a license or permit. If the suspension is upheld, the person must receive credit for the number of days his license was suspended before he received a temporary alcohol license and requested the contested case hearing.

The Department of Motor Vehicles and the arresting officer shall have the burden of proof in contested case hearings conducted pursuant to this section. If neither the Department of Motor Vehicles nor the arresting officer appears at the contested case hearing, the hearing officer shall rescind the suspension of the person’s license, permit, or nonresident’s operating privilege regardless of whether the person requesting the contested case hearing or the person’s attorney appears at the contested case hearing.

(G) A contested case hearing is governed by the Administrative Procedures Act, and a person has a right to appeal the decision of the hearing officer pursuant to that act to the Administrative Law Court in accordance with its appellate rules. The filing of an appeal stays the suspension until a final decision is issued on appeal.

(H)(1) If the suspension is upheld at the contested case hearing, the person must enroll in an Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990 and may apply for a restricted license if he is employed or enrolled in a college or university. The restricted license permits him to drive only to and from work and his place of education and in the course of his employment or education during the period of suspension. The restricted license also permits him to drive to and from the Alcohol Drug Safety Action Program classes or to a court-ordered drug program. The department may issue the restricted license only upon showing by the individual that he is employed or enrolled in a college or university, that he lives further than one mile from his place of employment, place of education, or location of his Alcohol and Drug Safety Action Program classes, or the location of his court-ordered drug program, and that there is no adequate public transportation between his residence and his place of employment, his place of education, the location of his Alcohol and Drug Safety Action Program classes, or the location of his court-ordered drug program.

(2) If the department issues a restricted license, it must designate reasonable restrictions on the times during which and routes on which the individual may drive a motor vehicle. A change in the employment hours, place of employment, status as a student, status of attendance of Alcohol and Drug Safety Action Program classes, status of attendance of his court-ordered drug program, or residence must be reported immediately to the department by the licensee.

(3) The fee for a restricted license is one hundred dollars, but no additional fee may be charged because of changes in the place and hours of employment, education, or residence. Twenty dollars of this fee must be deposited in the state general fund, and eighty dollars must be placed by the Comptroller General into a special restricted account to be used by the Department of Motor Vehicles to defray the expenses of the Department of Motor Vehicles.

(4) Driving a motor vehicle outside the time limits and route imposed by a restricted license by the person issued that license is a violation of Section 56-1-460.

(I)(1) The period of a driver’s license, permit, or nonresident operating privilege suspension for, or denial of issuance of a license or permit to, an arrested person who has no previous convictions for violating Section 56-5-2930, 56-5-2933, or 56-5-2945, or any other law of this State or another state that prohibits a person from driving a motor vehicle while under the influence of alcohol or another drug within the ten years preceding a violation of this section, and who has had no previous suspension imposed pursuant to Section 56-5-2950 or 56-5-2951 within the ten years preceding a violation of this section is:

(a) six months for a person who refuses to submit to a test pursuant to Section 56-5-2950; or

(b) one month for a person who takes a test pursuant to Section 56-5-2950 and has an alcohol concentration of fifteen one-hundredths of one percent or more.

(2) The period of a driver’s license, permit, or nonresident operating privilege suspension for, or denial of issuance of a license or permit to, an arrested person who has been convicted previously for violating Section 56-5-2930, 56-5-2933, or 56-5-2945, or any other law of this State or another state that prohibits a person from driving a motor vehicle while under the influence of alcohol or another drug within the ten years preceding a violation of this section, or who has had a previous suspension imposed pursuant to Section 56-5-2950 or 56-5-2951 within the ten years preceding a violation of this section is:

(a) for a second offense, nine months if he refuses to submit to a test pursuant to Section 56-5-2950 or two months if he takes a test pursuant to Section 56-5-2950 and has an alcohol concentration of fifteen one-hundredths of one percent or more;

(b) for a third offense, twelve months if he refuses to submit to a test pursuant to Section 56-5-2950 or three months if he takes a test pursuant to Section 56-5-2950 and has an alcohol concentration of fifteen one-hundredths of one percent or more; and

(c) for a fourth or subsequent offense, fifteen months if he refuses to submit to a test pursuant to Section 56-5-2950 or four months if he takes a test pursuant to Section 56-5-2950 and has an alcohol concentration of fifteen one-hundredths of one percent or more.

(J) A person’s driver’s license, permit, or nonresident operating privilege must be restored when the person’s period of suspension under subsection (I) has concluded, even if the person has not yet completed the Alcohol and Drug Safety Action Program in which he is enrolled. After the person’s driving privilege is restored, he must continue the services of the Alcohol and Drug Safety Action Program in which he is enrolled. If the person withdraws from or in any way stops making satisfactory progress toward the completion of the Alcohol and Drug Safety Action Program, the person’s license must be suspended until the completion of the Alcohol and Drug Safety Action Program. A person must be attending or have completed an Alcohol and Drug Safety Action Program pursuant to Section 56-5-2990 before his driving privilege can be restored at the conclusion of the suspension period.

(K) When a nonresident’s privilege to drive a motor vehicle in this State has been suspended under the provisions of this section, the department must give written notice of the action taken to the motor vehicle administrator of the state of the person’s residence and of any state in which he has a license or permit.

(L) The department must not suspend the privilege to drive of a person under the age of twenty-one pursuant to Section 56-1-286 if the person’s privilege to drive has been suspended under this section arising from the same incident.

(M) A person whose driver’s license or permit is suspended pursuant to this section is not required to file proof of financial responsibility.

(N) An insurer may not increase premiums on, add surcharges to, or cancel the automobile insurance of a person charged with a violation of Section 56-1-286, 56-5-2930, 56-5-2933, or 56-5-2945, or another law of this State or another state that prohibits a person from driving a motor vehicle while under the influence of alcohol or another drug based solely on the violation unless he is convicted of the violation.

(O) The department must administer the provisions of this section and must promulgate regulations necessary to carry out its provisions.

(P) If a person does not request a contested case hearing within the thirty-day period as authorized pursuant to this section, the person may file with the department a form after enrolling in a certified Alcohol and Drug Safety Action Program to apply for a restricted license. The restricted license permits him to drive only to and from work and his place of education and in the course of his employment or education during the period of suspension. The restricted license also permits him to drive to and from Alcohol and Drug Safety Action Program classes or a court-ordered drug program. The department may issue the restricted license at any time following the suspension upon a showing by the individual that he is employed or enrolled in a college or university, that he lives further than one mile from his place of employment, place of education, the location of his Alcohol and Drug Safety Action Program classes, or the location of his court-ordered drug program, and that there is no adequate public transportation between his residence and his place of employment, his place of education, the location of his Alcohol and Drug Safety Action Program classes, or the location of his court-ordered drug program. The department must designate reasonable restrictions on the times during which and routes on which the individual may drive a motor vehicle. A change in the employment hours, place of employment, status as a student, status of attendance of Alcohol and Drug Safety Action Program classes, status of his court-ordered drug program, or residence must be reported immediately to the department by the licensee. The route restrictions, requirements, and fees imposed by the department for the issuance of the restricted license issued pursuant to this item are the same as those provided in this section had the person requested a contested case hearing. A restricted license is valid until the person successfully completes a certified Alcohol and Drug Safety Action Program, unless the person fails to complete or make satisfactory progress to complete the program.

HISTORY: 1998 Act No. 434, Section 8; 1999 Act No. 115, Sections 7, 8, 13; 1999 Act No. 100, Part II, Section 11; 1999 Act No. 115, Section 15; 2000 Act No. 390, Sections 15 to 22; 2001 Act No. 79, Sections 2.I.1. and 2.I.2.; 2002 Act No. 296, Sections 2, 3; 2002 Act No. 348, Sections 10 and 11; 2002 Act No. 354, Sections 4 and 5; 2003 Act No. 61, Section 7; 2006 Act No. 381, Section 7, eff June 13, 2006; 2008 Act No. 201, Section 10, eff February 10, 2009; 2012 Act No. 212, Section 4, eff June 7, 2012; 2012 Act No. 264, Section 5, eff June 18, 2012.

December 19, 2014

Sep 8, South Carolina man charged with two counts of felony DUI

September 3, 2012

South Carolina State Rep. Ted Vick Facing Gun and DUI Charges

By guest-writer

A South Carolina state representative who is currently running for a seat in the U.S. House of Representatives has been arrested for drunk driving and illegally carrying a handgun, according to a report from Columbia’s WACH News.

Ted Vick, a 39-year-old resident of Chesterfield, South Carolina, was being held earlier in jail this week on charges of speeding, committing a DUI, an carrying a pistol without a valid permit, sources say.

Shortly after his arrest, Vick was given a personal recognizance bond on the speeding and DUI charges, but the court has not yet set a bond for the weapons charge.

Vick was arrested by the Columbia Police Department after he was caught driving more than 10 miles per hour over the speed limit.

When the officer pulled him over, he detected a “strong high odor of an alcoholic beverage” coming from the car, according to the police report.

When asked to perform a field sobriety test, Vick refused. The state representative also refused to take a breathalyzer test before he was hauled off to jail.

Police also found a .380 semiautomatic pistol in Vick’s front right pocket, and they eventually learned that his concealed weapons permit had expired in 2007. In addition, Vick did not tell the officer who pulled him over that he had the handgun in his pocket.

The police report written after the incident says that Vick had a few drinks with a female student from the University of South Carolina at a local pub before heading to another bar, where they continued to drink.

Needless to say, the DUI and weapons charge, as well as the information that Vick was drinking with a young college student, amount to a public relations nightmare for a man who is running for federal office.

His campaign, however, did not immediately offer any comments on Vick’s arrest, and sources do not say whether he has hired a DUI attorney.

According to his campaign website, Vick has a wife and two daughters. His website also describes him as a “trained minister” who “is a strong believer in traditional southern family values.”

Vick is one of five Democrats who are vying for the nomination to represent the 7th Congressional District, a newly minted political district.

For his alleged crimes, Vick is facing potentially hefty fines, a possible loss of his license, and perhaps even jail time, although it’s too early in the process to gauge exactly what his punishment will be. In the meantime, Vick will have to determine whether he should continue his campaign.

View the original article here

August 26, 2012

South Carolina Driver Charged With DUI After Crashing Into Pub

By guest-writer

Drunk drivers typically meander their way beyond the bars they leave, but some drivers aren’t able to resist returning to their watering hole, as evidenced by the recent actions of a woman in South Carolina.

73-year-old Ellon Williams was arrested for drunk driving after she drove her car through a restaurant into a pub in South Carolina last week, according to a recent report from WECT News.

Sources say that Williams was trying to leave the One More Grill and Pub shortly after 10:00 p.m. on Thursday night when she unceremoniously slammed her car into her favorite dining sport.

According to the police report, Williams told investigators from the South Carolina Highway Patrol that she thought she had put her car in reverse when she stepped on the gas, but it appears that she actually had her vehicle in drive.

Miraculously, no one involved in the accident was killed, despite the fact that the pub had a relatively full house that Thursday night.

The owner of the restaurant, Rebecca Stallings, says there were more than 30 people singing karaoke in the building when Williams drove her 1989 Mercedes-Benz through two plate glass windows in the front of the building.

After slamming her car into the pub, Williams was able to bring her car to stop in the front portion of the building, which may have spared a few lives.

Sources say that three people who were in the building were taken to the hospital, but all three injured parties have been treated and released.

One of the injured people, Lin Shelton, a regular at the One More Grill and Pub, reportedly lost a tooth and injured her leg in the incident, and she provided reporters with a harrowing story about the crash.

In her words, “[i]t sounded like an explosion. My back was turned so my instinct was just jump in the air because I felt stuff coming toward me, and it clipped me in the leg, threw me up in the air.”

After she was struck by Williams’ car, Shelton crawled through a back door, but she quickly ran back into the building to help free one of her friends who had been pinned between a pool table and a wall.

Fortunately, the wild DUI accident did not kill anyone, nor will it close the business. The owner of the restaurant, which has been at its current location for 13 years, plans to re-open the business soon.

View the original article here

February 25, 2011

Former South Hadley Prosecutor Testifies At Boston Bullying Hearing – Attorney Sam’s Take

How do former Massachusetts prosecutorial politicians and general politicians admit that they were wrong? Well, they don’t. They simply, and quietly, try to seek a “do over”, as young kids would say.

And so it was that former South Hadley prosecutor, Elizabeth Scheibel (hereinafter, “EXDA”), joined with others yesterday to address the fact that her and other heroic (and speedy) legislators’ measures regarding bullying do not seem to be working very well.

You remember EXDA, don’t you? In response to the public outcry of Phoebe Prince’s suicide, she is the political prosecutor (“PP”) who made headlines, instead of sense, when she indicted a bunch of kids for, when it comes down to it, bullying. Rather than doing further investigation (which the media did later for her), it was more palatable for her to ruin the lives of the other kids involved.

The transparently political move, while gaining accolades at first, soured in the light of day and she thereafter retired. However, the damage had been done. Part of that damage was to “up the ante” with her fellow politicians regarding bullying. So, in true political fashion, they pushed through what they called “the toughest anti-bullying law in the country” Unfortunately, the awesome law did little save give a false sense of security to the general public and confuse those who had to actually read the thing.

Oh. And it also gave us "No Name Calling Day".

Well, since the bullying problem is, if anything, getting worse, folks are meeting to figure out what to do. A hearing took place at the State House in Boston yesterday. It was convened by PP Attorney General Martha Coakley, who is leading a seven-member panel charged with assessing the anti-bullying law enacted last year.

There were various participants testifying. For purposes of this blog, EXDA was the most interesting of them. One of the obvious problems that she addressed was that there are no “teeth” in the bill as described in this blog on Tuesday.

EXDA opined that the anti-bullying law should be more like laws governing child abuse, a criminal offense, which require a broad range of caretakers to report suspected abuse or face civil penalties.

The law does urge school officials to refer anything that could be considered criminal to law enforcement. EXDA, however, feels it should go further. She suggested that administrators report to prosecutors all episodes they have determined to be bullying, not just those they believe are criminal, as the law currently demands.

EXDA explained that referring credible bullying cases to law enforcement would not increase the number of criminal prosecutions because law enforcement officials share school administrators’ hopes of keeping students out of the criminal justice system.

Apparently, this is a bad thing in EXDALAND.

However, EXDA explains, prosecutors do not have such an odd reluctance. Further, she says, that district attorney’s offices are better equipped to make the call when criminal charges are appropriate.

Coakley declined to comment on Scheibel’s testimony.

I have been imbedded in the criminal justice system for over 25 years. I have been on both sides of the aisle. I think I have a fairly accurate picture of who the players and their mindsets.

Judges judge. They are human, of course, and therefore susceptible to various influences like the rest of us. However, they try to rise above that and they judge. Defense attorneys defend. It is what we are supposed to do and it is what we do...when the job is done right.

Prosecutors, though, are not meant to simply prosecute. Their job description is to “do justice”. While most assistant district attorneys probably want to do that (again, with their own frailties and prejudices), they must obey office policies and directives. These are handed down by the particular PP who’s office it is.

Doing “Justice” is not necessarily the goal of a politician who knows that he or she will be judged simply on whether they were “tough” enough on crime.

I do not hate to say “I told you so”, so I will just tell you that I did. While it was all happening. Just check the blogs from back then. It is no surprise that the problem has simply gotten worse and that school officials, PPs and legislators are all scratching their heads at the problem.

Just like it is not brain surgery to suggest that putting prosecutors in charge of all bullying instances is sheer lunacy. On the other hand...look who suggested it

The issue of bullying is an age-old one and it is not going to be solved by knee-jerk quick political answers.

So, assuming you have no affiliation or interest in schools or kids. What does this posting have to do with you?

It is a reminder that is not often presented with such a clear illustration. However, it is an important one and, thanks to EXDA, I have a great illustration.

As mentioned, prosecutors prosecute. It is the mindset as well as the political motivation.

I meet many people who still believe that if they just “play ball” with the prosecution and tell the truth, as they see it, then everything will be ok and those investigating officers will simply go away.

This is naivety.

When the investigation leads to your door….call a lawyer!

An experienced criminal defense attorney is your best bet in having….to be kind to my friends representing the Commonwealth…another mindset involved.

One that cares about you.

If you have a criminal case and would like to discuss it with me, , please feel to call me to arrange a free initial consultation at 617-492-3000.

To view the original story, please go to : http://www.boston.com/news/local/massachusetts/articles/2011/02/10/activists_urge_lawmakers_to_extend_law_on_bullying/

View the original article here

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