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.

Posted in DUI | Comments Off

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.

Posted in DUI | Comments Off

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.

Posted in Ignition Interlock, Traffic Law | Comments Off

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.

Posted in DUI, Traffic Law | Tagged , , , , | Comments Off

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.

 

Posted in DUI | Comments Off

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.

Posted in DUI | Comments Off

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.

Posted in Traffic Law, Traffic Stops | Tagged , , , , | Comments Off

On December 27, 2013, the Los Angeles Police Department announced that portable/on the scene drug tests will be a part of this year’s New Year’s Eve drunk driving checkpoints in the Los Angeles metropolitan area. Los Angeles City Attorney Mike Feuer held a news conference last Friday where he announced the expansion and use of oral swabs for this year’s New Year’s Eve DUI/drunk driving roadblocks.

Specifically, the oral fluids test will screen for cocaine, Xanax, methamphetamine, methadone and marijuana if any of these substances have been used within the past several hours. According to Feuer, the roadside drug test takes about eight minutes to administer. Interestingly, Los Angeles city prosecutors have yet to ever use the results from any of these portable drug tests as evidence in a DUI/drunk driving prosecution.

This year, a little over 1,500 drivers were arrested for DUI across Los Angeles county in the mid to latter part of December, 2013.

As a South Carolina DUI/drunk driving defense attorney, I would raise the following points of attack if any upstate police agency announced the anticipated use of portable drug tests (PDT’s) at a checkpoint anywhere in South Carolina:

1. First, would or did the DUI/drunk driving checkpoint or roadblock in question fully and completely comply with the legal requirements for checkpoints or roadblocks in South Carolina? The digest or summaries of significant recent decisions in South Carolina DUI cases regarding checkpoints or roadblocks are fully addressed below.

http://www.jdsupra.com/legalnews/the-south-carolina-court-of-appeals-revi-40928/

2. Has the South Carolina statutory scheme that is in place been scrupulously followed?

a. Pursuant to South Carolina Code Section 56-5-2950, a driver suspected of DUI “….at the direction of the arresting officer, the person first must be offered a breath test to determine the person’s alcohol concentration. If a person is physically unable to provide an acceptable breath sample because he has an injured mouth, is unconscious or dead, or for any other reason considered acceptable by the licensed medical personnel, the arresting may request a blood sample to be taken. If the officer has reasonable suspicion that the person is under the influence of drugs other than alcohol, or is under the influence of a combination of alcohol and drugs, the officer may order that a urine sample be taken for testing….” .

I would certainly argue that a South Carolina driver arrested or investigated for DUI/drunk driving must first be offered a breath test under the statute before any type of drug test can be offered.

3. Would a PDT have to be previously and prior approved by the South Carolina law enforcement division (SLED)? I would argue that under South Carolina Code Section 56-5-29502 that because all breath, blood and urine samples must be obtained and handled in accordance with procedures approved by SLED; that logically, the same requirements would have to be in place regarding any type of portable drug test or oral swab drug test.

4. Has the officer who is administering the PDT been trained and certified by the South Carolina Criminal Justice Academy, and pursuant to SLED policies, in administering the portable drug test? Again, under South Carolina Code Section 56-5-2950, these are the rigid and strict requirements that are in place for the results of a breath or blood test to be admitted in a DUI/drunk driving prosecution in South Carolina.

5. Would or have the testing procedures and results been obtained and handled in accordance with procedures approved by SLED in these type cases? For example, would the roadside swab then be sent to SLED for further testing? Is there any type of backup or confirmatory tests that would have been used to verify the results of the roadside swab test? How would the swab get to the SLED laboratory? How would it be stored and handled? How would it be stored prior to and how would it be handled on its way to SLED?

These are just a few of the questions that I would have if any South Carolina police agency attempted to use portable drug tests (PDT’s) at DUI/drunk driving road checks or checkpoints as apparently it’s going to take place in Los Angeles, California at the end of 2013.

http://www.latimes.com/local/lanow/la-me-ln-new-years-dui-checkpoints-20131227,0,3004417.story#axzz2omLVtbVL

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.

Posted in Alcohol Detector, Breathalyzer, DUI, Traffic Stops | Tagged , , , | Comments Off

On November 21, 2013 the California Supreme Court issued a puzzling opinion in a DUI/drunk driving case. Basically, the Court held that a defendant cannot offer expert testimony to challenge the general reliability and accuracy of a breath testing machine in California DUI/drunk driving prosecutions. See full digest of opinion below:

http://www.jdsupra.com/legalnews/california-supreme-court-limits-challeng-95079/

As an attorney representing South Carolina drivers accused of DUI/drunk driving, I would raise the following points and arguments to make sure that South Carolina drivers can always challenge the accuracy and reliability of breath testing machines in DUI cases:

1. §56-5-2935. Right to a Jury Trial.

Notwithstanding any other provision of law, a person charged with a violation of Section 56-5-2930, 56-5-2933, or 56-5-2945 who is being tried in any court of competent jurisdiction in this State must have the right of trial by jury. A person charged with one or more of these offenses shall enjoy the right to a speedy and public trial by an impartial jury, to be fully informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses, documents, or both, and the right to be fully heard in his defense by himself or by his counsel or, by both.

The right to a jury trial for a South Carolina driver accused of DUI/drunk driving is guaranteed by this law. This law also guarantees that a defendant has “the right to be fully heard in his defense by himself or by his counsel or, by both.” Most assuredly the right to be fully heard would include the right to call a properly qualified expert witness to share the inherent flaws of the DataMaster machine with the jury.

2. §56-5-2933. Driving with an unlawful alcohol concentration.

“…(I) A person charged for a violation of Section 56-5-2930 may be prosecuted pursuant to this section if the original testing of the person’s breath or collection of other bodily fluids was performed within two hours of the time of arrest and reasonable suspicion existed to justify the traffic stop. A person may not be prosecuted for both a violation of Section 56-5-2930 and a violation of this section of the same incident. A person who violates the provisions of this section is entitled to a jury trial and is afforded the right to challenge certain factors including the following:

(1) whether or not the person was lawfully arrested or detained;

(2) the period of time between arrest and testing;

(3) whether or not the person was given a written copy of and verbally informed of the rights enumerated in Section 56-5-2950;

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

(a) reported alcohol concentration at the time of testing was eight 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 regulations adopted pursuant to Section 56-5-2951(O) and Section 56-5-2953(F); and

(d) machine was working properly.

(J) Nothing contained in this section prohibits the introduction of:

(1) the results of any additional tests of the person’s breath or other bodily fluids;

(2) any evidence that may corroborate or question the validity of the breath or bodily fluid test result including, but not limited to:

(a) evidence of field sobriety tests;

(b) evidence of the amount of alcohol consumed by the person; and

(c) evidence of the person’s driving.

(3) a video recording of the person’s conduct at the incident site and breath testing site taken pursuant to Section 56-5-2953 which is subject to redaction under the South Carolina Rules of Evidence; or

(4) any other evidence of the state of a person’s faculties to drive which would call into question the results of a breath or bodily fluid test.

At trial, a person charged with a violation of this section is allowed to present evidence relating to the factors enumerate above and the totality of the evidence produced at trial may be used by the jury to determine guilt or innocence. A person charge with a violation of this section must be given notice of intent to prosecute under the provisions of this section at least thirty calendar days before his trial date.

Key provisions of the South Carolina “per se” (DUAC) law are as follows: First, a driver charged with a violation of this section is allowed to present evidence relating to the factors above (i.e. was the machine working properly at the time of the test?) Second, a defendant is entitled to introduce “any evidence that may corroborate the validity of the breath test result.” In my opinion, both of these provisions, and the law as a whole, clearly allow a South Carolina driver accused of DUI/drunk driving to proffer a competent expert to highlight the many flaws and assumptions present in the DataMaster machine.

(3) SC Rule of Evidence, 702.

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

The seminal South Carolina case on point regarding the admissibility of expert testimony in criminal cases is State v Jones, 541 S.E.2d 813 (S.C. 2001). The crux of this South Carolina Supreme Court case, as it relates to the admissibility of expert testimony in criminal cases is as follows:

……

2. Expert Testimony

A single boot print was found on Pipkin’s bloody kitchen floor. The “steel toe” boots which made the impression, as well as another pair of “high-top” boots, were found in the room appellant rented at Brown’s parents’ home. Brown claimed appellant wore the “steel toe” boots connected to the crime, while he wore the pair of high-top boots also found in the room.

[343 S.C. 572] At trial, the State was permitted to introduce testimony that the “barefoot impressions” left on the “steel toe” boots’ insoles were consistent with the boots having been worn by appellant. Appellant contends this “barefoot insole impression” evidence is not scientifically reliable, and further that SLED agent Derrick who conducted the examination was not a qualified expert. Finally, he argues that even if there exists such a science, and even if Derrick were qualified, the prejudicial impact of the testimony outweighed its probative value. We find this “science” unreliable, and reverse the trial court’s decision to admit this evidence.

Scientific evidence is admissible under Rule 702, SCRE, if the trial judge determines: (1) the evidence will assist the trier of fact; (2) the expert witness is qualified; (3) the underlying science is reliable, applying the factors found in State v. Jones, 273 S.C. 723, 259 S.E.2d 120 (1979); and (4) the probative value of the evidence outweighs its prejudicial effect. State v. Council, 335 S.C. 1, 515 S.E.2d 508 (1999). The trial judge’s decision to admit or exclude the evidence is reviewed on appeal under an abuse of discretion standard. Id.

The central thesis of “barefoot insole impression” evidence is that the primary wearer of footwear, over time, begins to leave an impression of the wearer’s foot in the footwear’s insole. Inked impressions of the suspected wearer’s feet, photos of the suspected wearer’s known insoles, and a standing cast of the suspected wearer’s foot are compared to the impressions in the boots, both visually and by using calipers to compare distances between toes and other features among the various exhibits. A Canadian researcher (Kennedy), who testified for the State at trial, is currently conducting a study following R.C.M.P.[4] troopers and their new boots throughout the training process. Kennedy has compared the insole impressions made in some 200 Canadian army boots with the feet of the wearers. He began research in the area in 1989 after earlier work done by Dr. Louise Robbins was discredited.[5] Kennedy testified that different researchers use different

[343 S.C. 573] methods in making these type comparisons, but that he felt his method (the one used by Agent Derrick) was the best. He also testified that he has revised some of his statements, but none of his methods, based on comments received after publication of his peer-reviewed articles.

In conducting the tests here, Agent Derrick relied upon a talk he heard several years earlier, three books, two of which were published before 1989, and a phone conversation with Kennedy.

We agree with appellant that the “scientific” evidence admitted at his trial does not meet the requirements for admissibility, and therefore need not address his contentions that Agent Derrick was not a qualified expert, and that the prejudicial impact of this evidence outweighed whatever probative value it may have had. State v. Council, supra. The Jones reliability factors take into consideration:

(1) the publications and peer reviews of the technique;

(2) prior application of the method to the type of evidence involved in the case;

(3) the quality control procedures used to ensure reliability; and

(4) the consistency of the method with recognized scientific laws and procedures. State v. Council, supra.

The State relies most heavily on Kennedy to establish that there is a science underlying “barefoot insole impressions.” While Kennedy testified that he had published several peer-reviewed articles, he also testified that he was still in the process of collecting data in order to determine which standards were appropriate for comparison purposes. Further, he candidly acknowledged that earlier work in this area had been discredited.

We find the evidence presented here insufficient to meet the Jones’ requirements that: (1) the technique be published and peer-reviewed; (2) the method has been applied to this type evidence; and (3) the method be consistent with recognized scientific laws and proceedings. In our opinion, it is premature to accept that there exists a science of “barefoot insole impressions.”

[343 S.C. 574] An additional issue arises here as the result of the Jones requirement that the quality control procedures used ensure reliability. Neither Agent Derrick nor anyone connected with SLED had ever done this type of test before. Further, Agent Derrick admittedly had not conducted the testing in conformity with SLED’s quality control precautions. The director of the SLED laboratories testified that SLED requires a written protocol on all laboratory procedures, which must be “thoroughly tested to prove their scientific validity, accuracy and repeatability.” Here, there was no written protocol in existence[6] when Agent Derrick conducted his testing, much less one which had been subjected to SLED’s quality control policies.

We find, therefore, that the trial judge erred in permitting expert testimony purporting to demonstrate that “barefoot insole impression” testing revealed appellant’s foot to be consistent with the impression made by the primary wearer of the “steel toe” boot. The admission of this evidence mandates reversal of appellant’s convictions.

In the Vangelder case, the defendant’s proffered expert witness, Dr. Michael P. Hlastala, testified as to his credentials as follows: he is a professor of medicine, physiology, biophysics and bioengineering at the University of Washington. Dr. Hlastala has been studying the physiology of alcohol and the way alcohol is measured in testing procedures for 25 years. He has written more than 400 articles, including approximately 170 peer-reviewed articles and a text book on the subject. Additionally, he has testified in this area in approximately 30 states. Without question, Dr. Hlastala would be received as an expert in the field of breath testing in South Carolina courts.

4. Sixth Amendment, United States Constitution:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.

Below please find an article which I recently authored regarding a defendant’s Sixth Amendment right to confront witnesses relating to laboratory and forensic reports used in DUI/drunk driving prosecutions.

At the conclusion of this year’s session, a splintered Supreme Court authorized the use of laboratory reports during trial without allowing the defendant an opportunity to cross-examine the technician who created the report. Williams v. Illinois 567 U.S. __(2012). This opinion is a slight retreat from recent rulings that broadly interpreted the Sixth Amendment “right of confrontation” in favor of defendants in comparable cases (Crawford v. Washington, 541 U.S. 36, 50 (2004), Melendez-Diaz v. Massachusetts, 557 U.S. 305, 330 (2009),and Bullcoming v. New Mexico, 564 U.S. ____(2011)).

Williams v. Illinois

Justice Samuel Alito, writing for a four-justice plurality, affirmed that the testimony of an expert witness based upon a test that the testifying expert did not personally perform is admissible and does not violate the defendant’s Sixth Amendment rights. The Court held that because the evidence of the third-party test was not offered to prove the truth of the matter asserted (but merely to provide a basis for the conclusions that the expert reached), the prosecution had not infringed on the defendant’s Sixth Amendment right to confront and cross-examine witnesses. The Court’s ruling hinged on the following: First, the government witness testified and concluded that the DNA report in question matched a profile report the state laboratory had previously produced using a sample of Williams’ blood. Second, the government witness proffered was available to the defendant for cross-examination during trial. Accordingly, the Court concluded that the testimony offered did not fall within the bounds of a Confrontation Clause violation because the results were considered (by the testifying witness) for the limited purpose of seeing whether it matched the profile report from the state laboratory. The DNA report was not offered to prove the guilt of the defendant, as Williams was not a suspect at the time the test was conducted.

In Williams, the defendant (Sandy Williams) was convicted of two counts of aggravated criminal sexual assault and one count each of aggravated kidnapping and aggravated robbery in Illinois state court. At the defendant’s bench trial, Sandra Lambatos, a forensic specialist at the Illinois State Police lab, testified that she matched a DNA profile (of the defendant) previously produced by a private laboratory, Cellmark, to a profile the state laboratory produced using a sample of the defendant’s blood. Lambatos testified that Cellmark was an accredited laboratory and that business records showed that the evidence was taken from the victim, sent to Cellmark, and returned. That was the extent of her testimony.

The defense moved to exclude, on Confrontation Clause grounds, Lambatos’ testimony insofar as any reference to the Cellmark report as “hearsay.” The prosecution countered that the defendant’s Confrontation Clause rights were satisfied because he had the opportunity to cross-examine the expert who had testified as to the matching reports. The trial court admitted the evidence and found Williams guilty. Both the Illinois Court of Appeals and the Illinois Supreme Court affirmed the conviction, concluding that Lambatos’ testimony did not violate Williams’ Confrontation Clause rights because Cellmark’s report was not offered into evidence to prove the truth of the matter asserted.

The decision in Williams departs to some degree from the recent Supreme Court rulings referred to by the defense bar as “the trilogy.” However, the plurality in Williams felt that its decision was consistent with both the Melendez-Diaz and Bullcoming opinions (where the forensic reports were introduced for the purpose of proving the truth of what they asserted). Here, Cellmark’s report was considered and admitted for the limited purpose of seeing whether it matched something else, and the relevance of that match was established by independent circumstantial evidence—which showed that the report was based on a sample from the crime scene. Furthermore, the Court specifically noted in Williams that “the forensic reports in Melendez-Diaz and Bullcoming ran afoul of the Confrontation Clause because they were the equivalent of affidavits made for the purpose of proving a particular criminal defendant’s guilt.” In contrast, the Court went on to note in Williams that the primary purpose of the Cellmark report was to catch a dangerous rapist who was still at large, and not to obtain evidence for use against the defendant. Accordingly, there was no “prospect of fabrication” in the Court’s eyes.

Justice Elena Kagan (joined by Justices Ginsburg, Sotomayor, and Scalia) wrote a vigorous dissent, proclaiming, “Under our Confrontation Clause precedents, this is an open-and-shut case.” She found this case to be in the same vein as the trilogy of cases mentioned above where the Court found that in order to satisfy the requirements of the Confrontation Clause, the defendant must have the opportunity to cross-examine the analyst who performed the test. Without such an opportunity, an unreliable report is assumed to be true.

More specifically, the dissent suggests that the DNA profile report produced by an analyst at Cellmark’s laboratory is identical to the report in Bullcoming (and Melendez-Diaz) in “all material respects.” Therefore, Justice Kagan wrote, “under this Court’s prior analysis, the substance of the report could come into evidence only if Williams had a chance to cross-examine the responsible analyst.” However, that is not what happened.

“Instead,” wrote Justice Kagan, “the prosecutor used Sandra Lambatos—a state-employed scientist who had not participated in the testing—as the conduit for this piece of evidence.”

Finally, the dissent disagreed with the plurality’s conclusion that Cellmark’s report was not offered into evidence to prove the truth of the matter asserted, arguing that the “admission of the out-of-court statement in this context has no purpose separate from its truth; the factfinder can do nothing with it except assess its truth and so the credibility of the conclusion it serves to buttress.”

The “Trilogy”

The three primary opinions authored by the United States Supreme Court in the last ten years dealing with a defendant’s Sixth Amendment right to confront the witnesses against him started with the seminal opinion of Crawford v. Washington. Briefly, the facts of the Crawford case are as follows: Michael Crawford stabbed a man that he claimed was trying to rape his wife. During Crawford’s trial in state court, prosecutors played his wife’s tape-recorded statement given to the police describing the stabbing for the jury. The statement contradicted Crawford’s claim that he stabbed the man in defense of his wife. Crawford argued that allowing the jury to hear his wife’s prerecorded statement violated his Sixth Amendment right of confrontation because he was not allowed any opportunity to cross-examine the recording. Citing Ohio v. Roberts, 448 U.S. 56 (1980), the state Supreme Court upheld Crawford’s conviction. Roberts was a 1980 opinion in which the U.S. Supreme Court upheld an Ohio state court conviction where the state was allowed at the trial level to offer the preliminary hearing transcript of a critical witness in lieu of live testimony. The U.S. Supreme Court held that the use of the transcript testimony did not violate the Confrontation Clause because it bore an adequate “indicia of reliability”—and that in such cases, this type of evidence would fall “within a firmly rooted hearsay exception.”

In a unanimous opinion written by Justice Scalia, the Court reversed Crawford’s conviction and ruled that his Sixth Amendment right to confront and cross-examine witnesses against him had been violated. Defendants have the constitutional right to confront witnesses and cross-examine their testimony in criminal prosecutions. This holding directly overruled Roberts. In summary fashion, the Court held that the framers of the Constitution designed the Confrontation Clause to strictly prohibit out-of-court testimony as evidence against a defendant—again, without the benefit of the defendant being allowed to cross-examine the testimony.

In Crawford, Justice Scalia recited a detailed history of the Confrontation Clause. He went on to describe the context in which the framers of the Constitution drafted the clause and gave numerous examples of how American courts have interpreted the clause over the years. Scalia concluded that the Confrontation Clause of the Sixth Amendment applies to any “witnesses” against the defendant, meaning any person, statement, or document whose purpose was to “bear testimony.” The Crawford opinion has been consistently viewed as a bellwether case for defendant’s rights. It had an immediate and far-reaching effect in criminal courts nationwide. Previously, prosecutors had been enjoying a fair amount of leeway involving the use of affidavits and lab reports (where they gained admission through various exceptions to the hearsay rule). In Crawford, the Court expressly held that any out-of-court statement that was “testimonial in nature” was not admissible unless the defendant had the opportunity to cross-examine the declarant.

In Melendez-Diaz v. Massachusetts, the Court applied the standard as set forth in Crawford to a state forensic laboratory report. Briefly, in the prosecution of a drug case against Melendez-Diaz, the trial court allowed lab reports identifying the substance as cocaine without any testimony from the analyst. In a 5–4 decision, the Supreme Court held that because the lab report was prepared for use in a criminal prosecution, the Sixth Amendment Confrontation Clause demanded that the defendant be given the right to cross-examine the author of the lab report. As set forth in Crawford , the Supreme Court held that the laboratory report prepared and used in a criminal prosecution was “testimonial in nature,” and that the defendant had a fundamental Sixth Amendment right to confront and cross-examine the analyst who prepared the report prior to it being admissible.

In 2010, the Court revisited the Crawford and Melendez-Diaz opinions in a case involving a laboratory report of a blood alcohol reading in a DUI case. Once again, and in a 5–4 decision, the Court held a line that it created in Crawford. In Bullcoming v. New Mexico, the Supreme Court held that the admission of the blood alcohol report without the actual testimony of the person who prepared the report violated Bullcoming’s Sixth Amendment rights. Specifically, Justice Ginsburg stated, “The Confrontation Clause (of the Sixth Amendment) does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification (as to its accuracy), made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform the test. . . .”

Conclusion

The trilogy opinions had a huge impact in helping defendants accused of DUI or drug charges obtain a fair trial where they are allowed to cross-examine the laboratory analyst who performed the examination. Any breath alcohol test, blood alcohol test, or forensic drug examination of any type must be accompanied by the officer or laboratory technician who per­formed the test before it can be admissible. Critically, this allows a defendant the right to vigorously confront and cross-examine the witness regarding the obtaining, handling, storage, and testing of the sample. In Williams, the Court pares a defendant’s right to confront laboratory test evidence prepared by an unavailable witness. However, the Williams opinion does not appear to infringe upon a defendant’s right of confrontation where the laboratory report offered would be considered “testimonial in nature” and “offered as proof of truth of the matter asserted.”

I believe that it is a clear violation of a defendant’s Sixth Amendment rights to not be allowed to present expert testimony to challenge the general accuracy and reliability of breath testing machines in DUI/drunk driving cases. The Sixth Amendment guarantees a defendant the right to “be confronted with the witnesses against him.” One of the primary “witnesses” against a driver in a DUI/drunk driving case is a breath test result (if the driver took the breathalyzer test). Expert testimony of the type offered in the Vangelder case obviously falls under the protections of the Sixth Amendment.

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.

Posted in Breathalyzer, DUI | Tagged , , , , | Comments Off

Within the last year the American Civil Liberties Union of North Carolina started an investigation into the checkpoint policy and procedures being employed by the Jackson County, North Carolina Sheriff’s Department.  Apparently the Jackson County sheriff’s office was coordinating “seat belt checkpoints” with federal immigration officers with the target being illegal immigrants, and ultimate deportation.  At one checkpoint at least 15 illegal immigrants were arrested.  The ACLU brought a complaint of “targeting” against the sheriff’s office for the way the checkpoints were conducted.  On October 29, 2013 it was announced by the ACLU that an agreement had been reached with the Jackson County sheriff’s office ending the practice.  The sheriff’s office confirmed that they will no longer coordinate any vehicle checkpoints/road blocks with federal agencies such as immigration and customs enforcement.

It would appear to me that the checkpoint policy used by Jackson County clearly violated the US Supreme Court decision of Edmond (531 U.S. 32, 48 (121 SCt 447, 148 LE2d 333 (2000)).  In Edmond, the US Supreme Court held that a police checkpoint whose purpose is general crime control is unreasonable under the 4th Amendment under the US Constitution.  If a court determines that the primary purpose of the checkpoints at issue was “general crime suppression” rather than legitimately a driver’s license checkpoint than any arrests arising from it would be unconstitutional.

In South Carolina, the state supreme court, in State v Groome (378 S.C. 615, 619, 664 S.E.2d 460, 462 (2008)) affirmed a circuit court ruling suppressing drugs found after the defendant was stopped at a driver’s license checkpoint.  Controlling in the decision was referenced to the Edmond case and a determination that the checkpoint at issue had the “primary purpose of general crime suppression rather than merely a driver’s license checkpoint.”

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.  

Posted in DUI | Tagged , | Comments Off