Friday, August 26, 2011

DWI Law - South Carolina Throws Out Arrest Based on Lack of Video Camera

The late Reese Joye, beloved member and Fellow of NCDD, was instrumental in passing a law in South Carolina mandating in-squad videotaping in DWI cases. His spirit still lives on as exemplified in Town of Mt. Pleasant v. Roberts, --- S.E.2d ----, 2011 WL 2682407 (S.C.). There, Officer Bruce Burbage of the Town of Mount Pleasant's Police Department conducted a traffic stop of Roberts after observing her driving erratically. As a result of his initial observations, Officer Burbage conducted three field sobriety tests, on which he noted Roberts “performed pretty poorly.”

Subsequently, Officer Burbage arrested Roberts for DUI and transported her to the Mount Pleasant Police Department where Roberts was offered, but refused, a breathalyzer test. There was no recording of the initial traffic stop, field sobriety tests, or the arrest as neither Officer Burbage's vehicle nor the backup officer's was equipped with a video camera.

In response to Roberts's discovery motions, which included a request for production of the incident site videotape, the Town's prosecutor forwarded an “Affidavit for Failure to Produce Videotape” executed by Officer Burbage on October 16, 2009. The affidavit, a form generated by the Town, included a “checked” box that stated:

At the time of the Defendant's arrest the vehicle I was operating had not been equipped with a videotaping device and therefore pursuant to Section 18 of Senate Bill 174 of 1998, the videotaping requirement regarding vehicles is not applicable.

On October 30, 2009, a municipal court judge conducted a jury trial on Roberts's DUI charge. Prior to trial, Roberts moved to dismiss the charge based on Officer Burbage's failure to videotape the entire arrest pursuant to section 56–5–2953. Roberts asserted that section 56–5–2953 conferred upon her a statutory right to have the roadside arrest videotaped. Because Officer Burbage failed to comply with the statutorily-mandated procedure, Roberts claimed this violation warranted the dismissal of her DUI charge. The motion to dismiss was denied.

The Town relied on subsection (G) of the statute for the proposition that the videotaping requirement took effect only “once the law enforcement vehicle is equipped with a videotaping device.” FN6 Because Officer Burbage's vehicle was not equipped with a video camera, the Town argued that the videotaping provisions of section 56–5–2953 were inapplicable and, thus, the failure to videotape Roberts's arrest did not warrant the dismissal of the DUI charge.

In support of her motion, Roberts called several law enforcement officers from Charleston, Berkeley, and Dorchester counties in an attempt to establish that the Town had fewer video cameras than other municipalities despite the Town's significantly higher number of DUI arrests. Given these statistics, Roberts argued that the Town had willfully avoided complying with the 1998 statute as it had not requested from the South Carolina Department of Public Safety (DPS) additional video cameras in response to the increasing number of DUI arrests. Roberts also offered evidence that the Town was financially able to purchase additional video cameras, but had chosen not to do so.

The Town countered Roberts's arguments by claiming that DPS was solely responsible for providing the video cameras and, thus, the Town did not have a duty to request or purchase additional cameras in order to comply with the statute.

Discussing the issues on appeal, the appellate court wrote:

"Taking into consideration the purpose of section 56–5–2953, which is to create direct evidence of a DUI arrest, we find the Town's protracted failure to equip its patrol vehicles with video cameras, despite its “priority” ranking, defeats the intent of the Legislature and violates the statutorily-created obligation to videotape DUI arrests. Accordingly, we do not believe that the Town should be able to continually evade its duty by relying on subsection (G) of section 56–5–2953. Thus, we hold that the Town's failure to equip its patrol vehicles does not negate the application of the statutory exceptions in subsection (B).

"Under the specific facts of this case, we find the Town failed to satisfy any of the above-outlined statutory exceptions. Significantly, the Town conceded in municipal court and before the circuit court that the initial three exceptions did not apply and could not justify its failure to videotape Roberts's DUI arrest.

"Thus, the only feasible exception is that there was a “valid reason” for the Town's failure to comply with the mandatory videotaping requirements. Although the Town did not explicitly reference this provision, it argued that Officer Burbage's patrol vehicle was not equipped with a video camera because DPS had not supplied the Town with a sufficient number of cameras and the Town was not obligated to expend funds to purchase the cameras.

"As we interpret the circuit court judge's order, we do not discern a ruling that the Town was obligated to purchase the cameras with its own funds. Instead, the circuit court judge imposed an obligation on the Town to request additional video cameras given the Town's “high ranking” for DUI arrests as compared to other municipalities.

"Consequently, the question becomes whether the Town's failure to request additional video cameras constituted a “valid reason for the failure to produce the videotape based upon the totality of the circumstances.” Id. § 56–5–2953(B). We find the Town's explanation is disingenuous given its significantly higher number of DUI arrests as compared to smaller municipalities. Moreover, the Town's interpretation of subsection (G) is nonsensical as the requirements of section 56–5–2953 could be circumvented in perpetuity if a law enforcement agency purposefully does not request additional video cameras.

"Admittedly, the Legislature was silent with respect to a time requirement for when vehicles must be equipped with video cameras. However, applying the rules of statutory construction, we find the Town's interpretation would defeat the legislative intent of section 56–5–2953 and the overall DUI reform enacted in 1998.

"Finding that neither subsection (G) nor the statutory exceptions in subsection (B) excuse the Town's noncompliance with section 56–5–2953, the question becomes whether the failure to videotape a DUI arrest warrants a per se dismissal of the DUI case or whether, as the Town contends, the accused must establish that he or she was prejudiced.

"As evidenced by this Court's decision in Suchenski, the Legislature clearly intended for a per se dismissal in the event a law enforcement agency violates the mandatory provisions of section 56–5–2953. Notably, the Legislature specifically provided for the dismissal of a DUI charge unless the law enforcement agency can justify its failure to produce a videotape of a DUI arrest. Id. § 56–5–2953(B) (“Failure by the arresting officer to produce the videotapes required by this section is not alone a ground for dismissal of any charge made pursuant to Section 56–5–2930 ... if [certain exceptions are met].”). The term “dismissal” is significant as it explicitly designates a sanction for an agency's failure to adhere to the requirements of section 56–5–2953.

"Furthermore, it is instructive that the Legislature has not mandated videotaping in any other criminal context. Despite the potential significance of videotaping oral confessions, the Legislature has not required the State to do so. By requiring a law enforcement agency to videotape a DUI arrest, the Legislature clearly intended strict compliance with the provisions of section 56–5–2953 and, in turn, promulgated a severe sanction for noncompliance.

"Thus, we hold that dismissal is the appropriate sanction in the instant case as this was clearly intended by the Legislature and previously decided by this Court in Suchenski."

Editor's Note: No other State yet has a law mandating videotaping in DUI cases such as South Carolina. However, many states (including Illinois) impose technology surcharges against defendants convicted in DUI/DWI cases, where funds are given to municipalities specifically for the purchase of such equipment. Can this case be used in those instances?

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