Although SC’s DUI laws can be found in the SC Code beginning with 56-5-2930, DUI defense attorneys must also be well-versed in the SC case law that interprets our DUI statutes. A good starting point is City of Rock Hill v. Suchenski, where the SC Supreme Court affirmed that the legislature meant what it said when it said the videotape requirement is mandatory…

What were the facts of City of Rock Hill v. Suchenski? Does a DUI case really get dismissed if there is no video of the arrest? Are there other circumstances where DUI charges can be dismissed based on the officer’s non-compliance with the statute?

Are there exceptions that would allow the state to go forward with a DUI prosecution even if there is no videotape?

What Were the Facts of City of Rock Hill v. Suchenski?

In City of Rock Hill v. Suchenski, the officer’s dashcam recorded a portion of the traffic stop, but the tape ran out before the field sobriety tests were completed and before the arrest was made:

Respondent was arrested for driving under the influence (DUI) and was later charged with DUAC. At the incident site, the arresting officer did not videotape the entire arrest as required by § 56-5-2953 because the officer’s camera ran out of tape. The videotaping began upon activation of the officer’s blue lights and recorded two field sobriety tests and the Miranda warnings, but the tape stopped before the officer administered a third field sobriety test and before respondent was arrested.

The officer assumed the videotape was still running and he did not know the tape was about to run out – although this may have been an “exigent circumstance” that would have justified the failure to videotape (if the officer stated in his affidavit what reasonable efforts had been made to ensure the videotape was operable), the City did not make this argument in the court below, the argument was not preserved, and so the SC Supreme Court did not decide whether there was a justification for the failure to videotape under 56-2953(B) (see below).

The Court did affirm the circuit court’s dismissal of the DUI charges based on the officer’s failure to follow the mandatory videotaping requirements found in the statute.

City of Rock Hill v. Suchenski: What Happens if There is no Videotape?

City of Rock Hill v. Suchenski confirms that SC’s videotape requirement is mandatory and that the remedy for failure to videotape is dismissal of the DUI charges.

While 56-5-2953(A) contains the mandatory videotape requirements, however, 56-5-2953(B) provides exceptions where it would not be possible or reasonable for the officer to videotape the traffic stop and arrest.

The DUI Charges are Dismissed Under SC Code Section 56-5-2953(A)

SC Code Section 56-5-2953(A) states that a DUI suspect “must have his conduct at the incident site and the breath test site video recorded.”

During the traffic stop (at the “incident site”), the video recording must:

(i) not begin later than the activation of the officer’s blue lights;

(ii) include any field sobriety tests administered; and

(iii) include the arrest of a person for a violation of Section 56-5-2930 or Section 56-5-2933, or a probable cause determination in that the person violated Section 56-5-2945, and show the person being advised of his Miranda rights.

At the breath test site (the Datamaster room at the jail or police station), another video recording must:

(a) include the entire breath test procedure, the person being informed that he is being video recorded, and that he has the right to refuse the test;

(b) include the person taking or refusing the breath test and the actions of the breath test operator while conducting the test; and

(c) also include the person’s conduct during the required twenty-minute pre-test waiting period, unless the officer submits a sworn affidavit certifying that it was physically impossible to video record this waiting period.

Because the language is mandatory – the legislature uses the word, “must,” instead of “may” or “should” – the remedy for a violation is dismissal of the charges.

Unless There is a Valid Exception Under SC Code Section 56-5-2953(B)

SC Code Section 56-5-2953(B), however, provides exceptions where an officer’s noncompliance is excused because it was not possible or reasonable for the officer to record under the circumstances:

Failure by the arresting officer to produce the video recording required by this section is not alone a ground for dismissal of any charge made pursuant to Section 56-5-2930, 56-5-2933, or 56-5-2945 if the arresting officer submits a sworn affidavit certifying that the video recording equipment at the time of the arrest or probable cause determination, or video equipment at the breath test facility was in an inoperable condition, stating which reasonable efforts have been made to maintain the equipment in an operable condition, and certifying that there was no other operable breath test facility available in the county or, in the alternative, submits a sworn affidavit certifying that it was physically impossible to produce the video recording because the person needed emergency medical treatment, or exigent circumstances existed. In circumstances including, but not limited to, road blocks, traffic accident investigations, and citizens’ arrests, where an arrest has been made and the video recording equipment has not been activated by blue lights, the failure by the arresting officer to produce the video recordings required by this section is not alone a ground for dismissal. However, as soon as video recording is practicable in these circumstances, video recording must begin and conform with the provisions of this section.

First, the arresting officer must submit a valid, sworn affidavit – if the affidavit is not sworn or is otherwise invalid, subsection B’s exceptions do not apply.

Then, the affidavit must certify that one of a few limited circumstances existed at the time of the arrest:

• The videotaping equipment was inoperable – and – what reasonable efforts have been made to maintain or repair the equipment – and – that there was no other breath test facility available in the county; or
• That it was physically impossible to record due to the need for emergency medical care or other exigent circumstances.

So, in City of Rock Hill v. Suchenski, the defendant’s DUI charges were dismissed because the videotape was not complete (a violation of 56-5-2953(A)) and the Court did not find a valid exception under 56-5-2953(B) because that issue was not preserved in the lower court.

DUI Defense Lawyer in Charleston, SC

Charleston, SC DUI defense attorney Grant B. Smaldone focuses his law practice on criminal defense and DUI defense in the Charleston, SC area.

If you have been charged with DUI, DUAC, or any DUI related offense, call Grant B. Smaldone now at (843) 808-2100 or contact us through our website to talk to a Charleston, SC DUI defense lawyer today.