Should Every Step of the DUI Arrest be Recorded?

Posted by Jon Ibanez on August 30th, 2018

A report about a South Carolina law has raised the question, “Should every step of the DUI arrest be recorded?” If you’ve my previous posts, you know my answer is a vehement, “yes.”

A South Carolina law requires that the entirety of a DUI stop and arrest must be recorded otherwise the driver’s charges could get dismissed. And a new report suggests that DUI conviction rates have decreased significantly as a result of the law.

Many drunken drivers walk free in SC because of strict law, report says

August 29, 2018. The Post and Courier – In South Carolina, a police dash camera pointed the wrong way could be considered cause for a judge to throw out a drunken driving case, even when deputies say a motorist was clearly impaired.

State law, which critics describe as one of the strictest in the country, requires videotaping virtually every step of a DUI arrest. If the suspect is out of the shot of a dashcam or body camera or the video does not work, courts could dismiss the charges.

Greenville-area prosecutors who handle nearly 1,000 DUI cases a year say that loophole in state law, along with others, hurts conviction rates that have been criticized by Mothers Against Drunk Driving in a report released this week.

The report examined the outcome of hundreds of DUI cases in the Greenville and Columbia areas and found less than half resulted in drunken driving convictions.

An assistant solicitor handling a pending DUI case said she’s preparing arguments for why the judge should accept video into evidence because part of an arrest wasn’t captured on screen. Another Greenville prosecutor said a judge dismissed a case this year because a suspect couldn’t be seen being given Miranda rights, even though a dashcam captured the audio.

“It’s just a really odd and unreasonable requirement,” said Jennifer Tessitore, assistant solicitor for the 13th Circuit.

Technical glitches often spur prosecutors to offer suspects plea deals for lesser crimes, such as reckless driving, she said.

The issue is highlighted in a new report from the South Carolina chapter of Mothers Against Drunk Driving that calls on S.C. leaders to bring down the state’s more than 330 drunk driving deaths a year, which ranks sixth in the nation.

A majority of misdemeanor DUI cases in the Greenville area, or roughly 49 percent, are pleaded down to a lesser charge, while roughly 45 percent result in convictions, according to the 13th Circuit’s analysis of more than 1,200 cases between 2016-17 that was released Tuesday.

That conviction rate is much lower than other major crimes, 13th Circuit Solicitor Walt Wilkins told reporters Tuesday. He pointed to the state requirements on video evidence as a key hurdle.

“Our ability to (prosecute) is hindered by this current statute,” Wilkins said. “It makes it more difficult than it could, or that is allowed by other states.”

For the Columbia area, the conviction rate was 48 percent and another 48 percent of cases were pleaded down, according to MADD’s own analysis of 160 cases between 2016-17.

Defense lawyers who have handled drunken driving cases said the video requirement is no excuse for a poor conviction rate.

“They say it’s a burdensome technicality, but there’s nothing technical about a fair process,” said Joe McCulloch, a Columbia lawyer who handles dozens of DUI cases a year.

Then-state Rep. Ted Vick had a DUI charge thrown out in 2014 because officers failed to videotape the lawmaker being read his Miranda rights. The state has required some form of video evidence in DUI cases since 1998, said Sen. Brad Hutto, a Democratic Orangeburg attorney who worked on the legislation.

Requiring officers to record their interactions has actually strengthened evidence in DUI cases for juries to consider, Hutto said.

“If you have two people there, it’s your word against mine,” he said. “Who are you supposed to believe? If you have a video tape, you can see who’s actually right.”

More than $220,000 in grants from the S.C. Department of Public Safety funded the MADD study. Another $72,000 grant is funding a similar study of the Charleston area, which is expected to be published next year.

Fresh concerns about impaired driving in Charleston were raised in July when a motorist careened onto a sidewalk, fatally striking an 11-year-old girl. Though the driver had no alcohol in his system, police suspected that he had used drugs before the crash.

In June, police said a woman with a blood-alcohol content nearly twice the legal limit swerved into the wrong lane, causing a head-on collision with congressional candidate Katie Arrington, who was traveling on the Savannah Highway in Charleston County.

 

Guess what, critics of the law? You have it because we can no longer trust the arresting officer’s word that the stop was lawful, that procedures were done properly, and that the driver was actually drunk! If prosecutors want a higher conviction rate, how about training officers better or making sure that the equipment is functioning properly?

I’ve been doing DUI defense long enough to know that police lie in DUI police reports more often than I’d like to admit.

In a recent case of mine, a driver told the officer who stopped him that he had one glass of wine with dinner. This prompted the officer to have the driver perform field sobriety tests. Although there was sufficient space in front of the officer’s vehicle and within view the dashcam to perform the tests, the officer took the driver out of the camera’s view. Lo and behold, the officer’s report indicated that the driver failed all of the tests. However, after the driver was arrested and submitted to a chemical test, it was revealed that he had a blood alcohol content of only 0.02 percent, a mere ¼ the legal limit of 0.08. Either the driver failed the field sobriety tests while being sober, which is a problem in and of itself, or the officer lied in his report. I tend to believe the latter.

This shouldn’t be about giving the prosecutors more convictions. It must be about truth, fairness, and transparency with officers who make DUI stops. I applaud South Carolina, and every state should have similar laws.   

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