On December 2, 2014, WSPA -TV in Spartanburg, South Carolina reported that two South Carolina state senators announced that they would be pre-filing legislation today which would require all state and local police officers to be equipped with body-worn cameras.

In addition to the Michael Brown case in Ferguson, MO., there have been several situations in South Carolina where body cameras would have “brought some reassurance to the community that they can believe in the judicial system” according to Charleston Senator Marlon Kimpson.  President Obama earlier announced that his proposed spending plan would add body cameras to police departments across the country.  Mandatory body cameras would have a direct impact on DUI/drunk driving cases in South Carolina.

Pursuant to DUI/drunk driving investigation protocol – as put forward by the National Highway Traffic Safety Administration – the first field sobriety test that should be offered in a DUI/drunk driving investigation is the “Horizontal Gaze Nystagmus Test.”  According to the NHTSA manual “it is necessary to emphasize that validation of this test only occurs when: The test is administered in the prescribed standardized manner; standardized clues are used to assess the driver’s performance; and standardized criteria are employed to interpret that performance.”  Furthermore, the NHTSA manual expressly states that “this field sobriety test is not at all flexible and must be administered every time exactly as outline in the training course.”

To correctly administer the HGN test there are no less than 14 points or checks when the test is administered correctly.  For example, the stimulus should be held approximately 12-15 inches above eye level, do the eyes lack smooth pursuit?  Was nystagmus detected at maximum deviation?

Additional clues would include the following:  1. Did the driver understand the test?  2. Did the driver keep their head still during the test?  3. Did the driver stand straight and keep his hands by his side at all times?  4. Did the driver sway or rock during the administration of the test?  5. Did the driver stumble or fall while attempting this test?  6.  Did the driver follow the directions given by the police officer?

The mandate or requirement of body worn cameras in DUI/drunk driving cases would certainly allow for a more thorough and complete examination of whether or not the proper protocol was followed in the administration of this test.

At the office of Attorney Steve Sumner we relentlessly examine the administration of every field sobriety test if it was used as a basis to arrest and charge our clients with DUI.  We support this legislations so that we can do our job better and vigorously and zealously representing our clients in our efforts to defeat these charges.

http://www.wspa.com/story/27529364/sc-senators-to-file-bill-requiring-police-body-cameras

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 Lawyersfor 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. 

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For years South Carolina has been recognized as a leader with its DUI video recording law.  South Carolina continues to show the nation that we are willing to lead the way and pave the path in a critical area of our criminal justice system:  video recording laws for police.

Recent incidents involving law enforcement shootings in Ferguson, MO and Columbia, SC illustrate how critical mandatory video recording laws are, and how South Carolina is a leader in this area.

The video recording of Michael Brown being shot by a Ferguson, MO police officer lead to terrible civil unrest and military style police patrolling the streets of that city.  Protest marches occurred daily.  A mandatory curfew had to be put into effect.  Critically, it was a video recording made by bystanders of the event that contradicted the police version.  In other words it was citizens acting on their own that captured this important video footage that led to the public outrage that engulfed Ferguson for several weeks.  It was not a video recording from a police officer’s camera.

By contrast, the police shooting of Levar Jones in Columbia was recorded both visually and audibly by the trooper’s statutorily mandated in-car video recording system.  As a result, we know that then-Trooper Sean Groubert’s claim that he began firing only after ones came back out of his vehicle with something in his hand was not true.  What could have been a swearing contest between a white trooper and an African-American man, sparking the same type of unrest as in Ferguson became an example of the system addressing misconduct by the trooper both administratively and criminally.

As a Greenville, South Carolina DUI defense attorney I played a significant role in helping to author South Carolina’s videotaping law in DUI/drunk driving cases.  In the mid to late 90′s I was asked to be a part of the committee that drafted SC Code Section 56-5-2953 for the judiciary committee.  I am proud to say that it was the first mandatory videotaping law for DUI/drunk driving cases in the United States.  Briefly – the statute requires that the arrest site recording of the suspect begin no later than the activation of the blue lights on the police vehicle and that it include the administration of any field sobriety tests given in the investigation.  While other states have followed suit and adopted their own video recording laws, South Carolina’s still remains one of the strongest for the benefit of the accused.

Our appellate courts have consistently held that the failure to strictly comply with our video recording law demands that the DUI/drunk driving charge be dismissed.

I will once again fight this upcoming year in Columbia to encourage and support our general assembly to maintain the requirements of our video recording law in DUI cases.  However, every year, law enforcement groups, prosecutors and MADD lobby our legislature to change the law to make it easier to convict people accused of DUI.  The goal of preserving material evidence so that the accused can receive a fair trial is worth fighting for every year.

http://www.wcnc.com/story/news/crime/2014/11/06/sc-laws-make-it-nearly-impossible-to-convict-duis/18616913/

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 Lawyersfor 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. 

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The common occurrence of drivers having cell phones with them often creates situations where one motorist reports another motorist driving or actions to the police.  With the tremendous surge and popularity of cell phones over the last 10 years, the number of cell phone calls that have led the police to stopping another motorist have increased dramatically.  Our office handles numerous DUI/drunk driving cases that have originated with one motorist calling 911 to report erratic or suspect driving.  It is an issue that we deal with often and examine closely in the defense of DUI charges.

Two significant appellate court opinions regarding the propriety and requirements of “anonymous tips” as they relate to probable cause to stop another motorist came out in the last four months.  Below I will highlight the critical points from each case, and then summarize their effect on South Carolina drivers arrested or charged with DUI/drunk driving from an “anonymous tip.”

First – in Navarette, the US Supreme Court affirmed and endorsed an arrest for DUI stemming from an “anonymous tip.”  The key points that the US Supreme Court focused on in deciding that the 4th Amendment had been complied with in Navarette were as follows:  First, it is a “totality of the circumstances” analysis that a court should engage in when evaluating whether or not the “anonymous tip” provides the requisite “probable cause” to stop a motorist under the suspicion of DUI/drunk driving and be in compliance with the 4th Amendment protections enjoyed by all citizens against unreasonable searches and seizures.  In “anonymous tip” cases the crux analysis, in question, is did the tip exhibit “sufficient indicia of reliability” to justify the traffic stop?  In Navarette, the US Supreme Court specifically noted the following facts from the case as establishing sufficient “indicia of reliability” to justify the traffic stop.  These factors were eye witness knowledge, contemporaneous and timely reporting of the driving observed and the tipsters use of the 911 dispatch system.  Additionally, the Court noted that the 911 call reported an “ongoing road emergency” which was significant and stronger than a tip that alleges just general criminal activity.

Using the Navarette analysis, the Nebraska Supreme Court reversed a DUI/drunk driving conviction which was based on an “anonymous tip.”  This Nebraska Supreme Court opinion was filed August 29, 2014.  In reversing the lower court and overturning the defendant’s conviction for DUI/drunk driving the Nebraska Supreme Court specifically noted that the officer in their case had made observations that raised doubts regarding the reliability of the “anonymous tip.”  The officer directly observed an inconsistency in the 911 call; and the Court found that this contradiction of reliability had weakened the value of the “anonymous tip”; and overall, the tip in the Nebraska case exhibited much weaker indicia of reliability than the tip did in Navarette.  Additionally, the Nebraska case did not involve the report of a “ongoing crime.”  The Court noted that there was nothing in the content in the “anonymous tip call” that the driver was driving drunk or that the driver posed any type of threat of public harm by driving recklessly, etcetera.  Again, using the Navarette analysis, the Nebraska Supreme Court overturned and reversed a DUI/drunk driving conviction based on an “anonymous tip.”

I have attached a link to a detailed summary of both opinions if you should want to read them more closely.   Navarette vs California and Nebraska vs Rodriguez

When representing South Carolina drivers accused of DUI/drunk driving – in cases involving “anonymous tips” – we examine all available information surrounding these “tips” to see if the stop of our client can be suppressed, and the case dismissed.  We do this through extensively reviewing all available reports and dispatch recordings, interviews with the arresting officer and preliminary hearings where sworn factual testimony must be provided.  The use of all of these tools is valuable in forming the very best argument we can for dismissal of the DUI/drunk driving charge against our client.

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 Lawyersfor 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.

 

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This summer, both the South Carolina Supreme Court and the South Carolina Court of Appeals, released significant opinions directly affecting jury trials and admissible evidence in DUI/drunk driving cases. Both of these court opinions will offer veteran defense attorneys more ammunition in defending their clients in DUI/drunk driving cases. At the end of this post you will see links to detailed summaries of both cases should you wish to read them.

Quickly – in State v Gordon the South Carolina Court of Appeals affirmed the trial judge’s dismissal of a DUI charge because the defendant’s head could not clearly be seen on video while the police officer was conducting the HGN field sobriety test. The Court of Appeals held that the South Carolina DUI laws specifically require the video recording of all field tests; and therefore, dismissal was the only appropriate remedy in this case. In State v Sawyer a South Carolina Supreme Court opinion issued on June 4, 2014, the Supreme Court expressly held that all statutorily required video recordings sought to be admitted into evidence must contain both video and audio tracks to be admissible. In other words, if a video recording lacks audio of the encounter between the police officer and the driver then the appropriate remedy is suppression of that entire videotape from being received as evidence in the trial. The Supreme Court succinctly stated that the controlling DUI law in South Carolina requires audio; and if any significant amount of audio is not present, then the tape must be suppressed and not allowed into evidence at the trial in the case.

State v Gordon

State v Sawyer

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.

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On June 23, 2014, the US Supreme Court, without issuing any type of comment, denied the application to review a California Supreme Court ruling in November of 2013. That ruling, Vangelder v. California, No. 13-1012, held that defense attorneys could not present any evidence to challenge the accuracy and reliability of breath testing machines in general. The California Supreme Court made special note, in the opinion, that breath testing devices have been extensively tested by the appropriate arm of the California Assembly prior to being introduced for service and that they had also been certified as accurate (again, in general terms) by the United States Department of Transportation. A defendant in a DUI/drunk driving case is not allowed to present evidence or testimony challenging the overall reliability or accuracy of breath testing machines; although, a defendant can show that a particular breath testing machine was defective or used improperly in a specific case.

Briefly – it’s a sad day when a defendant is barred from putting up a complete defense in a jury trial.

South Carolina drivers accused of DUI/drunk driving can put up a complete defense in a jury trial. Our code of laws in DUI/drunk driving cases specifically guarantees a defendant the right to challenge whether or not “the machine was working properly” and “present any evidence that may question the validity of the breath or bodily fluid test result…”.

The specific code section, §56-5-2930, which guarantees this right is published below:

Link to the South Carolina Code

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.

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On April 14th of this year Governor Haley signed S.137 (“Emma’s Law”) into law for South Carolina drivers. The provisions of Emma’s Law do not go into effect until October 1, 2014. This blog serves as a summary of the significant provisions of the law as it relates to South Carolina drivers facing DUI/drunk driving charges. The law also made significant changes to the penalties for drivers who failed to comply with the “ignition interlock device program.”

I have linked the entire bill/law at the bottom of this blog if you would care to review any of the actual sections yourself which I am summarizing the significant sections below.

Section 2: The administrative process is detailed as it relates to the suspension of the driver’s license of a person under the age of 21 for driving with an unlawful alcohol concentration. This is not a criminal law or statute. The primary change here from the previous law is reducing the time period from five to three years in which a person who refuses to take a breath test, when lawfully asked, must have their driving record evaluated to see whether or not their driving privilege should be suspended for one year.

Section 3: Amends the previous South Carolina Code §56-1-400 and incorporates the new requirement of the issuance of a South Carolina drivers license that restricts the driver to only operate a vehicle fitted with an IID. This section also provides for an indefinite or lifetime suspension if a driver chooses not to participate and complete the IID program when required.

Section 9: Provides significant amendments to South Carolina Code §56-5-2941. A driver convicted of DUI/drunk driving who either refuses to take the breath test or has a breath test reading of .15 or higher must have an IID on their vehicle for six months. A person operating a motor vehicle that is not equipped with a certified IID device faces significant punishment. Likewise for disabling or tampering with an IID device; requesting another person to “blow” into the device to start your vehicle or obscuring the IID’s ability to capture a photographic image of the driver (yes, a certified IID device must be able to take a picture of the person blowing into the device and starting the vehicle every time).

Section 15: This section provides for significant amendments to South Carolina Code §56-5-2990. As noted above, the offenses and the IID required time periods are set forth below:

• First offense: Mandatory six month IID for refusing the breath test or registering .15 or higher;

• Second offense: Two year IID requirement;

• Third offense: Three year IID requirement.

Emma’s Law

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.

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On March 20, 2014, a key subcommittee hearing related to the potential passage of South Carolina Senate Bill S.137 (a/k/a Emma’s Law) was held at the South Carolina Legislature. The hearing was well attended and many voices were present urging the subcommittee to pass “Emma’s Law.” S.137 has been renamed “Emma’s Law” due to the tragic death of the child Emma Longstreet at the hands of a multiple and repeat drunk driving offender in Columbia last year. Her unfortunate death has galvanized community support for the passage of S.137. Debbie Ware, statewide chairman for MADD, emphasized that, according to several national studies, 67 percent of failed drunk driving collisions involve a repeat offender; and additionally, a repeat drunk driving offender is eight times more likely to be involved in a failed DUI accident than a driver with only one prior DUI conviction. After hearing testimony from various citizens, the subcommittee voted 5-0 to send “Emma’s Law” onto the full House of Representatives Criminal Law Committee for its consideration. Most observers believed that “Emma’s Law” will be fully endorsed by the South Carolina House of Representatives, the South Carolina Senate and will be signed into law by Governor Haley before the end of the 2014 session.

The major points which comprise” Emma’s Law” are as follows:

1. Ignition Interlock Devices:

First offense convictions for drunk driving: An IID would be mandatory on all drivers convicted in criminal court of first offense DUI if they refused to provide a breath sample or registered .15 or higher on the breath test that was a part of their criminal conviction for drunk driving.

2. Repeat offenders: Repeat drunk driving/DUI offenders will now be able to drive as soon as they can successfully enroll in the IID program. The focus here is in allowing repeat DUI offenders to drive legally with successful enrollment and completion of the IID program.

3. A 16 month lead time is envisioned between passage and implementation of “Emma’s Law” in order to give SC-DMV the necessary time to be able to fully implement “Emma’s Law” requirements.

4. “Emma’s Law” will contain a much stiffer penalty than is currently on the books for driving under suspension and for driver’s caught driving without their required IID.

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.

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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;

(c) tests administered and samples obtained were conducted pursuant to Section 56-5-2950; and

(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.

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.

 

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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.

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On December 27, 2013, Attorney Aaron Martin of Kennett Square, Pennsylvania filed a lawsuit in federal court on behalf of Ricardo Nieves challenging Reading, Pennsylvania’s city policy of systematically stopping innocent motorists without a court warrant, probable cause or any type of reasonable or articulable suspicion to believe that such motorists had committed a crime or violation of the Pennsylvania vehicle code. Attorney Martin challenges this policy as both illegal and unconstitutional.

The facts as alleged in the complaint are as follows: On Friday, December 13, 2013, the plaintiff (Nieves) was traveling on the Bingham Street Bridge in the city of Reading, Pennsylvania. The plaintiff came upon orange security cones and a police department cruiser effectively “corralling” Nieves’ vehicle in the right hand lane. The plaintiff was flagged into the parking lot by a police officer. In the parking lot there were five to seven improvised parking spaces outlined with orange security cones. A female (referred to as Jane Doe) approached the plaintiff’s car with a clipboard in her hand. She informed the driver that he was not being “pulled over.” Jane Doe went on to state that the purpose of the vehicle stop was a survey of drivers’ behavior and that she wanted to take a cheek swab to check for the presence of prescription drugs. Nieves declined three separate times to provide a voluntary “cheek swab sample.” Ultimately, Nieves was able to drive away.

The lawsuit goes on to allege that the plaintiff believes that Jane Doe, and others, were acting as employees of a private corporation known as the “Pacific Institute for Research and Evaluation.” Furthermore, that PIRE received money from the federal government to research the driving habits of motorists. The complaint goes on to alleged that at all times the PIRE agents or employees were acting under the direct control or supervision and authorization of the Reading, Pennsylvania police department and with the approval and authorization of the mayor of Reading, Pennsylvania.

The initial relief being sought by the plaintiff from the federal court is that all of the defendants in the case be permanently enjoined and/or restrained from any further type of automobile stops of this nature. The complaint also alleges that an unlawful and unconstitutional seizure of the plaintiff took place on the day in question, and that he is entitled to damages for “false imprisonment” for the time related to the unconstitutional stop and seizure.

It has subsequently been determined that the incident in question is part of an eight million dollar National Highway Traffic Safety Administration grant to PIRE to test approximately 7,500 drivers from sixty different locations to study the “driving habits of Americans.”

Indiana United States Senator Dan Coats recently called on NHTSA to cease this program immediately pending congressional hearings and reviews into the matter.

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.

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