In South Carolina, if stopped and investigated for Driving Under the Influence, Driving With an Unlawful Alcohol Content, or Felony Driving Under the Influence, your conduct will be video recorded both at the incident site and at the police department. The requirement is set forth in S.C. Code § 56-5-2953 Ann.
Pursuant to § 56-5-2953, a person in South Carolina who violates the law of Driving Under the Influence, Driving With an Unlawful Alcohol Content, or Felony Driving Under the Influence must have their conduct video recorded.
Incident Site Video Recording
The video recording at the incident site must:
- Not begin later than the activation of the officer’s blue lights;
- Include any field sobriety tests administered; and
- Include the arrest of a person for a violation of Section 56-5-2930 or Section 56-5-2933, or a probable cause determination in that the person violated Section 56-5-2945, and show the person being advised of his Miranda rights.
The video recording at the breath test site must:
- include the entire breath test procedure, the person being informed that he is being video recorded, and that he has the right to refuse the test;
- include the person taking or refusing the breath test and the actions of the breath test operator while conducting the test; and
- also include the person's conduct during the required twenty-minute pre-test waiting period, unless the officer submits a sworn affidavit certifying that it was physically impossible to video record this waiting period.
There are certain situations in which a video recording may not be required, however,
the situation requires a sworn affidavit from the officer setting forth a sufficient excuse. The failure to produce the required video recording may be excused if the arresting officer submits a sworn affidavit certifying that the video recording equipment at the time of the arrest or probable cause determination, or video equipment at the breath test facility was in an inoperable condition, stating which reasonable efforts have been made to maintain the equipment in an operable condition, and certifying that there was no other operable breath test facility available in the county or, in the alternative, submits a sworn affidavit certifying that it was physically impossible to produce the video recording because the person needed emergency medical treatment, or exigent circumstances existed.
An unexcused failure to produce the required video recording compliant with the statute, or the failure to produce a sworn affidavit setting forth the reason, can result in exclusion of the evidence that would have been contained on the video recording.
At one point, the remedy for the failure was dismissal. However, that is no longer the case based on case law in South Carolina. However, a failure to provide the required video recording may assist the defense attorney in negotiating a much better resolution than conviction for the offense.
If you are charged with Driving Under the Influence, Driving With an Unlawful Alcohol Content, or Felony Driving Under the Influence, contact T. Kirk Truslow, P.A. for a vigorous and experience defense at 843-449-3304.