Five decisions that matter the most to DUI attorneys

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For the DUI defense practitioner, there were a number of significant DUI decisions handed down in 2013.  Let’s take a look at a handful of them.

U.S. Supreme Court

1

In Missouri v. McNeely, the defendant declined a breath test; afterwards, he was arrested for DUI and forced to provide a blood sample.  The arresting officer never attempted to obtain a search warrant prior to the blood test.

Issue: Does the lone factor that a suspect’s blood alcohol level is dissipating justify a warrantless blood draw in DUI/drunk driving cases?

Holding: No. In DUI cases, the natural dissipation of alcohol in a suspect’s blood stream does not constitute an “exigent circumstance” in every case sufficient to justify conducting a blood test without first obtaining a search warrant.

South Carolina Supreme Court

2

In State v. Hercheck  and State v. Elwell (which were consolidated for the purposes of oral argument), both defendants refused to offer a breath sample prior to the expiration of the 20-minute observation period which is required in South Carolina prior to providing a breath sample. In both cases, the police officers terminated or ended the statutorily required videotaping of the defendant concurrent with their refusal to take the test, and prior to the expiration of the observation period.

Issue: Does South Carolina Code Section 56-5-2953 require law enforcement officers to videotape a 20-minute pre-test waiting period when the arrestee refuses to take the breath test?

Holding: No. South Carolina Code Section 56-5-2953 does not require a law enforcement officer to videotape the entire 20 minute pre-test waiting period once the arrestee refuses a breath test.  A valid legal construction of the statutory subsection at issue is that only when the waiting period is required can the videotape recording also be required; and if no test is administered, then the 20 minute waiting period is unnecessary and there does not have to be a videotape recording provided.

South Carolina
Court of Appeals

3

In Chisolm v. SCDMV, the defendant was offered a breath test and actually blew into the DataMaster machine for approximately one minute and fifty-three seconds.  The arresting officer testified that the machine was emitting a “steady tone” (meaning air was going into the breath testing instrument); however, the officer also testified that the instrument would “just not read it.” Because the machine would not read the sample, the arresting officer considered it to be a “refusal” by the defendant to take the breath test and initiated a six month administrative suspension of her license.

Issue: Does a “legal refusal” only take place when the defendant actually refuses the conscious act of blowing into the breath machine?

Holding: Yes. South Carolina, a “legal refusal” only takes place when the test subject actually refuses the conscious act of blowing into the instrument.

4

In City of Greer v. Humble, the arresting officer did not have a video recording of the defendant pursuant to the requirements of SC Code Section 56-5-2953.  The officer submitted an affidavit certifying that the video recording equipment in his car at the time of the arrest was inoperable and stating that reasonable efforts had been made to maintain the equipment in an operable condition.

Issue: Did the Circuit Court err in reversing the municipal court’s dismissal of Humble’s DUI charge because the affidavit required by South Carolina Code Section 56-5-2953(b) was deficient on its face?

Holding: Yes, the Circuit Court erred in overturning the original dismissal of the DUI charge.  The applicable statute now requires an officer to state which reasonable efforts had been made to maintain the video recording equipment in an operable condition.  The affidavit the officer provided to the municipal court did not describe those reasonable efforts; thus, the City of Greer failed to comply with the plain statutory requirements.  A supplemental affidavit was never filed and the oral testimony presented at trial to supplement the affidavit was insufficient to meet the affidavit requirements of the statute.

5

In State v. Henkel, the driver of a vehicle involved in a one-car wreck was subsequently apprehended near the scene. The arresting officer found the defendant being examined by EMS in an ambulance. The officer then read the defendant his Miranda rights and performed a field test inside the ambulance.  The defendant later failed the “ABCs” field test.  Once inside the patrol car, the officer turned the dashboard video camera toward the defendant and again read him his Miranda rights.

Issue: Did the trial court correctly find that the videotapes offered into evidence complied with South Carolina Code Section 56-5-2953?

Holding: No. Accordingly, the trial court’s decision was reversed and the defendant’s conviction for DUI was vacated. SC Code Section 56-5-2953(A) requires that the videotaping at the incident site “include the person being advised of his Miranda rights before any field sobriety tests are administered.” Because the videotape did not include the officer giving the defendant Henkel his Miranda warnings, it did not conform to the provisions of SC Code Section 56-5-2953.  Accordingly, the trial court was required to dismiss the charge, and it erred by not doing so.

Steve Sumner is a DUI defense attorney practicing in Greenville.