City of Rock Hill v. Suchenski is a landmark SC case where the SC Supreme Court upheld the mandatory videotape requirement in SC’s DUI laws – if the officer does not comply with the statute, your DUI charges get dismissed.
Suchenski did not announce a new rule, however, and the decision should not have been a surprise to anyone. The Supreme Court was only reading the plain language of SC’s DUI law and announcing that the legislature meant what they said – if police do not comply with the mandatory videotape law, dismissal is the remedy.
Below, we’ll look at the requirements in SC’s mandatory videotape law, the exceptions to the videotaping requirements, and why dismissal is required for some violations but not others.
Suchenski and SC’s Mandatory Videotape Requirement in DUI Cases
SC Code Section 56-5-2953(A) requires that any person who is accused of DUI (driving under the influence), DUAC (driving with an unlawful alcohol concentration), or felony DUI must have their “conduct at the incident site and the breath test site video recorded.”
The statute goes on to list specific requirements for what must be included in the video recording both at the incident site and in the Datamaster (breathalyzer) room.
At the Incident Site
At the incident site (on the roadside when the officer makes the traffic stop), the video must:
- Begin when the officer activates the blue lights or before,
- Include all field sobriety tests (FSTs),
- Include the suspect’s arrest, and
- “Show the person being advised of his Miranda rights.”
The field sobriety tests that must be recorded include the one-legged stand, the walk and turn test, the horizontal gaze nystagmus (HGN) test, and any non-standardized tests that the officer administers, and it must include the entire test.
For example, if the officer records the FSTs, but the video does not show the suspect’s feet while they are performing the one-legged stand or the walk and turn tests, the video is not complete – there is no way for jurors, a judge, a prosecutor, and a defense attorney to evaluate the defendant’s performance if the video cuts off the person’s feet…
In the Datamaster Room
There are also mandatory videotape requirements in the Datamaster room – once an officer decides that a suspect is under the influence and places them under arrest, the officer usually takes them directly to a Datamaster machine at the jail or police department and offers a breathalyzer test before booking the person.
At the breath testing site, there must be another video recording that includes:
- The entire breath test procedure,
- The person being informed that they are being video recorded,
- The person being informed that they have the right to refuse the breath test,
- The person being tested and the actions of the breath test operator while conducting the test, and
- The person’s conduct during the 20-minute observation period.
Whether it is on the roadside or in the Datamaster room, the remedy for an officer’s failure to follow the law is dismissal of the defendant’s case.
Suchenski: The Remedy for Failure to Comply is Dismissal
City of Rock Hlil v. Suchenski interpreted the plain language of SC’s mandatory videotape law which requires dismissal if the arresting officer or Datamaster operator violates the law.
SC Code Section 56-5-2953(B) says that “[f]ailure by the arresting officer to produce the videotape required by this section is not alone a ground for dismissal of any” DUI, DUAC, or felony DUI charges unless it falls within one of the exceptions.
Therefore, when the officer’s failure to produce the videotape does not fall within an exception, dismissal is the appropriate remedy…
Note that it is not enough for the arresting officer and Datamaster operator to create the video – they must also produce the video and turn it over to the defense.
If the prosecution does not turn over a video that contains each of the requirements listed in 56-5-2953, there is no way for the court and defendant to evaluate the defendant’s performance during the FSTs and breathalyzer test, the officer has violated the videotape law, and the remedy is dismissal.
Exceptions to the Mandatory Videotape Requirement in DUI Cases
But what if it’s not possible for the officer to create the video, either on the roadside or in the Datamaster room?
56-5-2953(B) also contains exceptions to the mandatory videotape law. Even if the officer does not produce a videotape, the charges are not dismissed if the officer submits a sworn affidavit that:
- Certifies that the video equipment was inoperable,
- Specifies what reasonable efforts have been made to maintain the equipment in an operable condition, and
- Certifies that there was no other breath test facility available in the county.
The officer can also submit a sworn affidavit stating that it was physically impossible to make the video recording because the defendant needed emergency medical treatment or because there were other exigent circumstances.
An officer’s failure to produce a videotape may also be excused in some situations including roadblocks, traffic accident investigations, citizen’s arrests, or where the blue lights failed to activate the recording equipment, but the officer must begin the video recording as soon as it is possible.
There is also a “catch-all exception,” allowing the Court to consider other valid reasons “for the failure to produce the video recording based upon the totality of the circumstances.”
1 – the officer must comply with the mandatory videotape law, or the DUI charges are dismissed.
2 – the law is more than reasonable and does not require dismissal when there is a legitimate reason for the failure to produce a videotape.
Edit: On February 23, 2022, the SC Supreme Court held in State v. Kenneth Taylor that an officer’s failure to show the reading of Miranda rights on the roadside video does not require dismissal of the charges (despite the statute’s plain language and the Court’s prior opinions on this matter).
SC 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, you may have valid defenses to the charge or there may be grounds to get your case dismissed.
Contact DUI Defense Lawyer Johnny Gardner now at (843) 248-7135 for a free consultation to find out how we can help.