08 Sep
Can the Police Get My Medical Records?
categories: DUI

This topic or question often comes up when we represent clients accused of DUI/Drunk Driving that have been involved in an accident and have been taken to a hospital and are charged with DUI in the process. Most of the time our clients have refused to provide a blood sample for testing when requested by the police officer – but can the police subsequently go back and try to obtain a copy of the medical records and see if the hospital ran a blood alcohol test on their own during treatment?

The short answer is – A prosecutor or law enforcement official may obtain the results of a blood test conducted for medical diagnosis and treatment under the Federal Health Insurance Portability and Accountability Act (HIPPA) regulations. These regulations allow a health care provider to disclose protected heath information in response to a court order or pursuant to a subpoena, if the parties to the dispute giving rise to the request have agreed to a qualified protective order or if the provider makes reasonable efforts to provide notice to the individual whose information is sought.Read More

02 Sep
Can the Police Make Me Provide a Blood Sample?
categories: DUI

I am often asked the above question. This issue came back up recently with a news story out of Cobb County, Georgia. Basically – WellStar Health System policy prohibits hospital staff from performing blood tests on suspects if the suspect refuses, even if the police have a search warrant to perform the blood test. A WellStar spokesman stated as follows, “We have long-standing policies that do not allow our caregivers to take blood samples without patient consent. This is for the safety of everyone involved. Our caregivers are trained to care for our consenting patients. Our policy does not restrict law enforcement from carrying out a warrant or interfere with those efforts.” In other words, WellStar hospitals will not allow their personnel (nurses, etcetera) to draw blood from conscious and alert DUI suspects without their direct consent. While a court order can compel a suspect to give up blood in a DUI investigation, it cannot force a hospital to take it. Read More

29 Jun
South Carolina Legislative Bill S.590 Modifies IID Requirements for South Carolina DUI Convictions
categories: DUI

On May 21, 2015, Bill S.590 was passed by the General Assembly and was signed by Governor Haley on June 1, 2015 (see link below to view full version of the bill). This Bill implements several modifications to the laws pertaining to the Interlock Ignition Device (IID) requirements associated with Driving under the influence (DUI) and Driving with an unlawful alcohol concentration (DUAC) convictions in South Carolina, which are outlined here.

The previous version of South Carolina Code § 56-1-400(B) “Surrender of license; issuance of new license; endorsing suspension and ignition interlock device on license” permitted any person convicted of DUI or DUAC to petition the Department of Motor Vehicles for a waiver of the IID requirement if they were driving a vehicle owned by their employer for work-related purposes. This “Employer’s Vehicle Waiver” can be requested if the driver does not own a vehicle during the time period of the IID requirement, does not drive a vehicle other than their employer’s vehicle, and cannot install an IID on that vehicle. The amended statute limits the applicability of the employer’s vehicle waiver to first-time DUI offenders. Now, those persons convicted of a second or subsequent DUI may only qualify for the waiver if their driver’s license has been suspended at least one year or they have had the IID for at least one year.Read More

11 Mar
Convicted Drunk Drivers Viewed as “A Significant Public Safety Threat” by the Department of Homeland Security
categories: DUI

Immigration authorities announced Monday that over 2,000 foreigners who had criminal convictions had been arrested during a five day nationwide operation in early March. This “sweep” was conducted primarily by the Immigration and Customs Enforcement Agency. Alejandro Mayorkas, Deputy Secretary of the Department of Homeland Security, conducted a news conference in Washington, saying, “It had focused on deporting people who were the department’s top priorities because they posed serious public safety or national security threats.” Security officials went on to state that of the more than 2,000 people arrested “hundreds of them had convictions of driving under the influence of drugs or alcohol.” Advocates for immigrants have asked for leniency for immigrants with drunk driving cases, saying that oftentimes they were workers supporting their families. But immigration officials said Monday that they regarded those drivers as “a significant public safety threat.”Read More

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

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

18 Feb
South Carolina Senator Paul Thurmond Introduces Bill to Clear up Expungement Difficulties
categories: DUI

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

11 Feb
No Changes are Needed to South Carolina’s DUI Video Recording Law
categories: DUI

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

03 Dec
South Carolina State Senators to Push Bill Requiring Police to Have Body Cameras in DUI/Drunk Driving Cases
categories: DUI

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. Read More

11 Nov
The Controversy Surrounding South Carolina’s DUI Video Recording Requirements Continues
categories: DUI

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. Read More

23 Sep
Two Significant “Anonymous Tip” Court Opinions Rendered Recently Could Affect SC Motorists Charged or Arrested for DUI/Drunk Driving
categories: DUI

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. Read More

25 Jun
Two Important South Carolina Appellate Court Decisions Rendered this Summer in the Field of DUI/Drunk Driving Defense
categories: DUI

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. Read More

24 Jun
US Supreme Court Refuses to Hear California Appeal Involving DUI/Drunk Driving Breath Testing Machines
categories: DUI

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. Read More

19 May
Emma’s Law: The Nuts and Bolts
categories: Ignition Interlock Traffic Law

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”. Read More

24 Mar
“Emma’s Law” (S.137) clears first hurdle and is unanimously voted out of the South Carolina House of Representative Criminal Law Subcommittee
categories: DUI Traffic Law

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. Read More

16 Jan
What is an Administrative Hearing in South Carolina in DUI/Drunk Driving Cases?
categories: DUI

 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?”. Read More

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

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. Read More

08 Jan
Pennsylvania Attorney Files Lawsuit Alleging Unconstitutional Roadblocks
categories: Traffic Law Traffic Stops

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. Read More

30 Dec
Los Angeles, California New Year’s Eve DUI/Drunk Driving Checkpoints Will Now Include Roadside Drug Tests
categories: Alcohol Detector Breathalyzer DUI Traffic Stops

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. Read More

01 Dec
In Vangelder the California Supreme Court Severely Limits Challenges to Breath Testing Machines in DUI Cases
categories: Breathalyzer DUI

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: Read More

31 Oct
Jackson County, North Carolina Road Blocks/Checkpoints Come Under Fire
categories: DUI

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. Read More

25 Oct
Big DUI Checkpoint Case out of Georgia
categories: DUI

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. Read More

23 Oct
Colorado State Lab Finally Gives it Up
categories: DUI

Earlier this week the Colorado Department of Public Health and Environment finally announced that its laboratory will not resume testing blood samples for alcohol concentration in DUI/drunk driving cases.  The final decision to not resume testing of samples for blood alcohol concentration comes four months after a highly critical report revealed concerns about the quality and reliability of blood alcohol testing at the Colorado state toxicology laboratory. Read More

03 Sep
California Court of Appeals Upholds Blood Draws in Misdemeanor DUI/Drunk Driving Cases
categories: DUI

CASE NAME: The People v Anthony Cuevas (and six other defendants); (California Court of Appeals, First Appellate District – Division I, Opinion No. A138062; August 15, 2013)


In each of these cases before the Court the defendant was arrested for DUI/drunk driving; after which each was advised by the arresting officer that underCalifornia’s implied consent law they were required to take one of two chemical tests.  All of the defendants opted for a blood test or blood draw. In all of the cases the arresting or transporting officer witnessed the blood draw, observed the defendant having the area cleaned before the blood was drawn and observed the injection area being bandaged following the blood draw. Read More

20 Aug
Tennessee Supreme Court Affirms Dismissal of DUI Case when Video Recording Lost
categories: DUI

CASE NAME: Tennessee v Merriman (No. M2011-01682-SC-R11-CD; August 16, 2013)


On November 18, 2010, Officer Robert Hammond observed the vehicle driven by the defendant, Angela Merriman, veer into his lane of traffic from the center turn lane.  Officer Hammond then activated the video equipment in his patrol car and stopped Ms. Merriman’s vehicle.  Subsequently, Officer Hammond conducted a horizontal gaze nystagmus field test, along with two other field sobriety tests which the defendant did not complete due to health issues.  Afterwards, Officer Hammond placed the defendant under arrest for driving under the influence (DUI), reckless endangerment with a motor vehicle, reckless driving, driving under suspension and violation of the implied consent law. Read More

19 Aug
McNeely Decision Prompts Changes in Stearns County, Minnesota
categories: DUI

On April 17, 2013, the US Supreme Court issued its decision in a significant DUI/drunk driving case; McNeely v Missouri.  On April 18, 2013, I posted a summary of the decision on the website JD Supra (see below).  It has recently been reported that Stearns County is set to become the first county in Minnesota that would require police to obtain a search warrant before taking a blood sample from a suspected DUI/drunk driver when they refuse a breath test after a traffic stop.  Minnesota drivers are currently read an advisement (when suspected of drunk driving), and are stopped by law enforcement.  The current advisement informs drivers that they are required to submit to a chemical test at the request of the police or face a separate criminal charge if they refuse. Read More

12 Aug
In State v Moore South Carolina Court of Appeals Issues a Significant Opinion in the Field of Traffic Stops and Search and Seizures
categories: DUI

Case Name: State v Moore (South Carolina Court of Appeals, Opinion No. 5160; filed July 17, 2013)


Officers Dale Owens, Donnie Gilbert, Ken Hancock and K-9 Deputy Jason Carraway, all of the Spartanburg County, Sheriff’s Office) were patrolling US Interstate-85 in Spartanburg County around 1:00 a.m.  Owens observed the defendant (Ashley Eugene Moore), traveling an estimated 10 miles an hour over the posted speed limit.  Owens also observed Moore execute an improper lane change.  Owens activated his blue lights and stopped the defendant.  Owens testified that it took the defendant longer than the average motorist to stop and that he failed to release his left turn signal.  Officer Owens observed Moore talking on his cell phone as he approached the vehicle.  Owens opined that the average motorist would have ended the phone call when an officer approached their vehicle and that drug traffickers often leave a cell phone on so that their superiors can hear the contents of the traffic stop.  An alcoholic odor emanated from the defendant’s vehicle.  Moore informed Owens that the vehicle was a rental and provided the rental agreement, along with his driver’s license.  Officer Owens testified that the defendant was extremely nervous, with his hands shaking noticeably and his breathing clearly accelerated.  The defendant consented to a “pat down search”.  Officer Owens observed and seized “a large wad of money” from Moore’s person.  Moore had indicated he was unemployed.  Moore stated he was travelling from a suburb of Atlanta to Marion, North Carolina to visit his grandmother.  It was determined that a third party had rented the vehicle for Moore.   Moore declined consent for Officer Owens to search the vehicle. Read More

05 Aug
“Ban the Box” Laws not Prevalent in South Carolina
categories: Uncategorized

This past week the city counsel of Richmond, California became the latest city to implement a “ban the box” law regarding new employees.  The Richmond ordinance prohibits city contractors from ever inquiring about the criminal histories and criminal background of many job applicants.  “Ban the Box” laws are ordinances or statutes that prohibit an employer from requiring an applicant to check a box if the applicant has a criminal record.  Under the Richmond ordinance, private companies that have city contracts and employ more than nine people will not be able to ask anything about an applicant’s criminal record. Read More

29 Jul
Massive Computer Failure Stops South Carolina DUI/Drunk Driving Cases
categories: DUI

On July 24, 2013 it was reported from the State Law Enforcement Division in Columbia, South Carolina that hearings in DUI/drunk driving cases would have to be postponed while SLED works to restore and/or repair a computer server that contains over 22 years worth of evidence in DUI/drunk driving cases. Read More

17 Jul
NTSB Bid to Lower Drunk Driving Blood Alcohol Limit Gains Little Traction
categories: DUI

In May of 2013, the National Transportation Safety Board (NTSB) publicly advocated a push for all states to lower the blood alcohol limit in drunk driving cases to .05%.  This announcement was spearheaded by multiple news conferences and press releases.  In a July 15th, 2013 story, the Washington Times reports that this effort is meeting with little success.  According to the NTSB, the primary justification for lowering the blood alcohol limit in drunk driving cases was that “Drivers with .08% blood alcohol levels have double the chance of being involved in an accident as drivers with .05% levels”. Read More

19 Jun
EEOC Lawsuit Highlights the Importance of a Clean Criminal Record
categories: DUI

I typically receive several phone calls a year from people who “just need to get an old DUI off my record.”  The conversations generally involve an individual requesting that I assist them in removing a misdemeanor DUI/drunk driving conviction from their criminal record.  Typically the caller will go on to tell me that the DUI/drunk driving conviction happened many years ago and that their life has changed dramatically since then but that this conviction continues to come up in interviews and background checks. Read More