Many people who get arrested for DUI in SC may feel like it’s all over. That there is no way out.
I thought that before I started practicing law. But, after twenty-plus years of practicing criminal defense and defending ordinary people charged with driving under the influence, I’ve learned that sometimes there is a defense.
Actually, most of the time there is something to work with.
Here are a few things to consider if you’ve been arrested for DUI in SC and you are feeling like it’s the end of the road:
- The arrest is a judgment call. Sometimes it’s the wrong call.
- Sometimes the officer just wants the driver “off the street.”
- DUI law is complex. Maybe there’s a defect in the case.
- Sometimes, the driver is innocent.
If you’ve been arrested for DUI in SC, it is not the end of the road. Call Johnny Gardner Law now to find out how we can help.
Arrested for DUI in SC? Possibly, the Officer Made the Wrong Call
If you were swerving into oncoming traffic, hit another vehicle, put someone in the hospital, failed your field sobriety tests in spectacular fashion, cussed out the responding officer, and blew a .30 on the breathalyzer test, probably no one is going to argue that you should not have been arrested.
We might argue that your case should be dismissed, that the responding officer violated your rights, that the officer did not follow the law during the investigation, or that you should be acquitted by a jury, but, most likely, the officer made the right call in arresting you for DUI.
On the other hand, if you were pulled over for a traffic violation, the officer claims to smell alcohol, your performance on the field sobriety tests is okay or ambiguous, and you either refuse the breathalyzer or it registers right at .08, the officer made a judgment call when he or she charged you with DUI.
Was it the right call?
The officer may second guess their own decision – police officers are only human, and most of them are trying hard to do a good job without hurting people. If the officer recognizes that they may have made the wrong call when they arrested you, or the prosecutor recognizes the same after reviewing the evidence in your case and talking it over with your attorney, your case could be dismissed before your trial begins.
In other cases, the officer’s main concern may have been to “get you off the street.” Even if your blood alcohol level was relatively low, if the officer smells alcohol and your field sobriety test was ambiguous, they may not have wanted to take a chance on letting you drive away…
Can I Sue the Police if They Dismiss My DUI Case?
Probably not, and this should never be a consideration when a prosecutor decides whether to dismiss a case or take it to trial (the ethics rules that govern attorneys prohibits pursuing a criminal case to gain an advantage in a civil matter).
You may be able to file a civil rights lawsuit for wrongful arrest (and possibly other causes of action) if you are arrested without probable cause, but that is incredibly rare in DUI cases. If the officer says he or she smelled alcohol, if there is video evidence that you performed poorly on the field sobriety tests, or if there is a breathalyzer result above .05, there was probable cause for the arrest even if there was insufficient evidence to take your case to trial.
On the other hand, if there is zero evidence of intoxication, you blow a .00 on the breathalyzer, and the officer “loses” the roadside video and urinalysis results, you may have a lawsuit like this University of SC professor whose $200,000 verdict was just upheld by the SC Court of Appeals.
Arrested for DUI in SC? There May be a Defect in Your Case
If you were arrested for DUI in SC, we may be able to get your case dismissed if the arresting officer did not follow the law during the DUI investigation. In other cases, we may able to get the Datamaster results suppressed because the officer did not follow either the law or SLED’s policy and procedure.
When the Officer Violates SC’s Mandatory Videotape Law
The SC Supreme Court has held in City of Rock Hill v. Suchenski, and a series of cases that followed Suchenski, that the appropriate remedy for violation of SC’s videotape law is dismissal.
Although officers often get it wrong, SC DUI law is not “convoluted” or confusing. The requirements are simple: The officer must turn on their video camera no later than the activation of the blue lights – something that is automatic in most patrol cars now.
The recording must include:
- The traffic stop from the activation of the blue lights through the suspect’s arrest;
- The officer reading Miranda rights to the suspect;
- The field sobriety tests, including the person’s feet if they are performing the walk and turn or one leg stand tests;
- The 20-minute observation period in the Datamaster room; and
- The breathalyzer test or the suspect’s refusal to take the breathalyzer.
If the officer’s camera was inoperable, or if there are other valid circumstances that prevented the officer from complying with the law, the officer can submit an affidavit explaining the situation, and your case is not dismissed.
On the other hand, if the officer violated the mandatory videotape law and does not submit a valid affidavit, the appropriate remedy is dismissal. Not reduction to a lesser included offense or reckless driving. Dismissal.
When the Officer Violates Nonmandatory Policy and Procedure
Violations of the videotape law result in dismissal because the law’s requirements are mandatory.
If the officer violates SLED’s policy and procedure or nonmandatory provisions of SC DUI law, it will not directly result in the dismissal of your case, but it may result in the court suppressing your breathalyzer results or other evidence against you.
Violations of nonmandatory policy and procedure could include:
- Failure to check a suspect’s mouth for foreign objects before administering the breathalyzer;
- Failure to wait for the full 20-minute observation period before offering the breathalyzer;
- Proceeding with the breathalyzer despite receiving error messages;
- Using an expired simulator solution for the Datamaster’s “pretest;”
- Calling the test a “refusal” despite the suspect’s best efforts to comply; or
- Administration of the breathalyzer by an officer who is not certified to operate the Datamaster.
Why does it matter if the breathalyzer results are suppressed?
First, we are more likely to get an acquittal if the jurors do not hear a Datamaster result. More importantly, your prosecutor knows this and so will be more likely to offer a lesser traffic offense in a plea agreement or dismiss your case entirely.
Sometimes, the Driver is Innocent
After twenty-plus years of practicing law in Horry County, I can tell you without hesitation that innocent people are arrested and charged with all manner of criminal offenses, from speeding tickets to murder, and including DUI.
I have seen cases where a person was charged with DUI although they were not driving. Whether the officer likes it or not, the SC legislature enacted a driving under the influence law – it is not against the law to sit in your car, listen to the radio, or sleep in your car while drunk. If the officer cannot also prove that you were driving, you are innocent of DUI and your case should be dismissed.
Then again, there are cases where an officer arrests someone who is clearly not intoxicated, like the USC professor’s case I referenced above. In other cases, an officer may have mistaken a medical condition for intoxication, or the person they arrested may not have been behind the wheel at all.
DUI Defense Lawyer in Conway, SC
If you have been charged with DUI or DUAC in Myrtle Beach, Conway, or anywhere in the Horry County area, it is not the end of the road.
Contact DUI Defense Lawyer Johnny Gardner today for a free consultation to find out how we can help.