How can video be used to challenge your DUI case?

One of the first things that we do when we take on a new DUI case is to request copies of the video evidence produced by the police department. S.C. Code § 56-5-2953 requires that the police make a video of everything that occurs roadside from the activation of the officer’s blue lights through the actual arrest. The law also requires that a second video be made at the breath site (located in the police station or jail) where someone is offered a breathalyzer test.

The roadside video is one of the most important pieces of evidence that we have to assist in preparing a defense. Since it should begin at the activation of the officer’s blue lights it should show any dangerous or illegal driving (weaving, failing to use a turn signal, crossing the center line, etc.). It also will show the administration of any field sobriety tests such as the horizontal gaze nystagmus, walk and turn, and one leg stand.

Sometimes the video shows that the defendant’s demeanor is not what a court would expect of someone being arrested for drunk driving. Sometimes they really just don’t look drunk and you wonder why they are ever being arrested. Video in those cases can be an important part of the defense.

Other times the video will show that the police were mistaken about, or exaggerated any poor driving they used as the basis for the initial traffic stop. In South Carolina if the police don’t have a valid reason to pull you over the entire DUI case can be dismissed. So if the police said that they pulled someone over for not using a turn signal, but the video shows a signal was in-fact used then we can make a motion to dismiss the case.

Video can also be helpful in determining if field sobriety tests were properly given. Police frequently provide incorrect instructions, or fail to grade or score the tests correctly. We watch the testing portion of the video with our own checklist produced straight from the official manual open to pick out any errors in the police process.

The breath-site video can also show whether or not someone tried to submit a sample, and whether or not they truly refused. Some people claim that they were blowing but the machine still recorded it as a refusal. When the court can see someone actually trying to blow that can be an important piece of evidence in their case.

Sometimes the police fail to produce or maintain a video in compliance with the law. Under a 2011 South Carolina Court of Appeals case when the police inexcusably violate the recording statute the remedy is a dismissal of the DUI charge. The holding in that case now applies to every DUI case in South Carolina. Attorney James Snell was the defense lawyer responsible for that case.

If you come in for an appointment with James Snell regarding your DUI case you will hear him explain how DUI is the only crime in South Carolina with these types of defenses. Once we’re hired we’ll make the request for both videos a top priority, and we do so by serving what are called discovery motions on the prosecutor or police officer.

Because so many DUI cases are resolved based on the content of the roadside video, it is important to always request and review it before making any decisions about the case. The video is not automatically handed over by the police, and you won’t have an opportunity to evaluate it unless specific motions are filed with the court in advance of your court date.

Categories: Challenging Your DUI
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