DUI Breath Test Videotape Not Required to Contain Footage of Twenty-Minute Pre-Breath Test Waiting Period According to South Carolina Supreme Court.
In State v. Hercheck and State v. Ellwell, the South Carolina Supreme Court addressed the requirements for the driving under the influence (DUI) breath test videotape. Video footage from a DUI stop and subsequent DUI breath test can be vital for your DUI defense. If you have been charged with a DUI or a DUAC contact a DUI attorney at Pisarik Law Firm to discuss your DUI defense.
State v. Ellwell 743 S.E.2d 802 (SC 2013) & State v. Hercheck 743 S.E.2d 798 (SC 2013)
Whether a pre-breath test videotape recording is required upon an arrest for driving under the influence (DUI) where the DUI suspect refuses to take the DUI breath test.
The South Carolina Supreme Court looked at two separate cases involving a similar issue. In the first case, Ellwell was arrested for a DUI 2nd offense. He was taken to a breath test site where the arresting officer informed Elwell that he was being videotaped. Ellwell’s refusal to take the test was videotaped but the arresting officer turned off the video recording equipment after Ellwell refused the test and before the twenty-minute pre-test wait period had elapsed.
In the second case, Hercheck was arrested for DUI 1st offense after he was involved in a traffic accident. Hercheck refused to take the DUI breath test. Hercheck’s conduct in the breath test room was recorded until the time he refused the test. However, the Officer then shut down the recording equipment before the twenty-minute pre-test wait period concluded.
The Supreme Court held in both cases that the twenty-minute pre-test wait period did not have to be recorded if the DUI suspect refused to submit to the DUI breath test. SC Code of Laws Section 56-5-2953(A)(2006) required that any person arrested for DUI, “must have his conduct at the incident site and the breath test videotaped.” Pursuant to SC Code of Laws Section 56-5-2953(A)(2)(d)(2006), the breath test videotape, “must 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-tape this waiting period…., however, if the arresting officer administers the breath test, the person’s conduct during the twenty-minute pre-test waiting period must be videotaped.”
Here, the State argued that the “pre-test” waiting period language meant that the videotaping was only required if a DUI breath test actually took place. The Defendant argued that the law clearly stated that the DUI breath test videotape “must” include the conduct during twenty-minute period unless it was physically impossible to do so.
The Court held that the “pre-test” language plainly required that a breath test had to be administered for the videotape requirement to apply. Therefore, once the DUI suspects refused the breath test, their conduct no longer had to be videotaped.
It is important to note that these cases both dealt with SC Code Section 56-5-2953(A) before it was amended in 2008 and not the current SC Code Section 56-5-2953(A). However, in State v. Hercheck the Court appears to indicate that this ruling should apply to the amended statute as well.
Contact a DUI Attorney at Pisarik Law Firm to Discuss your DUI Breath Test Videotape and your DUI Defense.
Just because the Court ruled that the “pre-test” conduct in these cases does not have to be videotaped, does not mean that you are without a valid DUI defense. If you have been charged with DUI or DUAC, Contact a DUI Attorney at Pisarik Law Firm for a free consultation to discuss your DUI defense today. 803-415-2733