South Carolina Prosecutors: DUI Cases Should Rely Less on Police Video

Article

South Carolina prosecutors want state law to de-emphasize video in drunken driving cases, saying too many are being dismissed because of imperfect recordings.

But defense attorneys counter the solution is better officer training, not lowering of standards.

Since 1998, state law has required videotaping of drunken driving arrests. Recordings must begin as soon as an officer activates blue lights and include on-site sobriety tests as well as the breath test, if a suspect agrees to take it.

A Senate Judiciary subcommittee on Wednesday debated a bill that inserts a line in state law specifying that cases can’t be tossed simply because video equipment fails to capture sobriety tests. The subcommittee, made up largely of defense attorneys, took no action.

Solicitor Barry Barnette, chief prosecutor for Spartanburg and Cherokee counties, said judges’ reasons for dismissal have included malfunctioning audio, a suspect temporarily walking out of camera view, and a suspect’s feet not being visible for the entire straight-line walking test.

Solicitor Kevin Brackett said he had a case thrown out after a defense attorney argued one foot obscured the other as the suspect walked heel-to-toe.

“It has become so restrictive,” it is almost as if driving under the influence is legal in South Carolina, said Brackett, chief prosecutor for York and Union counties. “It’s gotten to the point that a determined defense attorney can almost always find some reason to have a case thrown out.”

Two court decisions last year – including a state Supreme Court ruling last August on audio – have amplified the problem, he said. According to his records, 60 percent of DUI arrests in York County during the first quarter of 2014 resulted in drunken driving convictions, compared to 36 percent in the first quarter of 2015, he said.

No agency keeps track statewide of how often DUI cases are dismissed or pleaded down for lesser charges due to video technicalities. Defense attorneys argued it’s not nearly as prevalent as prosecutors and law enforcement officers suggest.

“The DUI sky is not falling,” said Heath Taylor with the South Carolina Association of Criminal Defense Lawyers. “There’s no problem with the law.”

But Sen. Greg Hembree, former chief prosecutor for Horry and Georgetown counties, said he knows from personal experience, “it is very common, and as a defense lawyer now, my clients are benefiting.”

He said video should be treated as any other piece of evidence, instead of “used as a game of gotcha.”

“I’m trying to understand why we’re departing so dramatically from the rest of the law,” said Hembree, R-North Myrtle Beach. “I don’t see why we should automatically say, `You’re out.”‘

James Huff, a defense attorney who specializes in DUI cases, said the problem can be solved if officers just change the camera’s viewing field to a rectangle instead of a square.

“It only requires minimal adequate training,” said Huff, of North Augusta. He argued DUI video should get special treatment as evidence because it represents suspects’ only opportunity to disprove an officer’s allegations.

“If you lower the standard you will find lower competence and lower compliance,” he said.

Taylor contends a Court of Appeals ruling in December should fix many of law enforcement’s concerns. A lower-court judge initially threw out the case because a suspect briefly left camera view as the officer repositioned his vehicle to, ironically, get a better camera angle. The appeals court disagreed.

But Aaron Hayes, an assistant solicitor in Brackett’s office, said that only clarified a single issue.

The case “removed one avenue for defense to drive through that loophole, but there’s still an interstate running through,” he said.