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.