Will your dui be dismissed in sc if the officer doesn’t read miranda rights on the video?

How do you get your DUI charges dismissed without a trial in SC?

Most of our clients who are charged with DUI do not come to us for a guilty plea. They want to keep their record clean, they want their DUI dismissed, and they don’t want to plead guilty or go to trial…

Can we get your DUI dismissed?

Maybe – it will depend on the facts of your case and the law as applied to the facts of your case. What we can tell you is that your Myrtle Beach DUI defense lawyer on the Axelrod team will get your DUI dismissed, find a resolution to your case that you can agree to, or try your case to a jury.

Below, we will discuss how to get a DUI dismissed under SC’s DUI laws, including:

• SC’s mandatory videotape law,
• Probable cause in DUI cases,
• Suppression of breathalyzer results or other key evidence, and
• Why the officer’s failure to read Miranda rights on the video no longer results in dismissal of your DUI charges.

HOW TO GET A DUI DISMISSED IN SC

The proper procedure for a DUI arrest is not complicated – make sure you have probable cause for the traffic stop and the DUI arrest and follow the simple requirements of SC’s mandatory videotape law.

SC’s Mandatory Videotape Law

SC Code § 56-5-2953 requires the arresting officer and/or Datamaster operator to record a suspect’s conduct at the incident site and in the Datamaster room where the breathalyzer test is offered.

On the roadside, the video recording must:

1. Begin no later than the activation of the officer’s blue lights,
2. Include any field sobriety tests that are given,
3. Include the suspect’s arrest, and
4. Show the person being advised of Miranda rights.

In the Datamaster room, the video recording must include:

1. The entire breath testing procedure,
2. The person being informed that they are being video recorded,
3. The person being informed that they have the right to refuse the test,
4. The person taking or refusing the breath test,
5. The actions of the breath test operator while conducting the test, and
6. The person’s conduct during the 20-minute observation period.

Why do we have these requirements in SC?

The video recordings protect both the officer and the defendant. Without video, arresting officers will swear the defendant performed horribly on the field sobriety tests, swear that they read Miranda rights to the defendant, and swear that nothing irregular happened during the breath testing procedure.

The defendant might swear that they performed the FSTs like a trained gymnast, that the officer never read Miranda rights to them, and that the Datamaster operator never checked their mouth for the tongue piercing that caused the breathalyzer result to spike.

Why have a swearing contest in court when all you have to do is hit record and you can bring a video to show the judge and jurors? SC’s mandatory video requirement keeps both the police and defendants honest in court – why wouldn’t we want that?

THE REMEDY FOR NOT COMPLYING WITH THE VIDEOTAPE REQUIREMENTS IS DISMISSAL OF THE DUI

The remedy if a police officer doesn’t make a complete video or doesn’t provide a copy of it to the defendant is dismissal of the DUI charges – there is no other practical way to force police to comply with the law.

It’s not an unreasonable requirement – SC Code § 56-5-2953(B) also excuses an officer’s failure to comply if there is a good reason:

Failure by the arresting officer to produce the video recording required by this section is not alone a ground for dismissal of any charge made pursuant to Section 56-5-2930, 56-5-2933, or 56-5-2945 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. In circumstances including, but not limited to, road blocks, traffic accident investigations, and citizens’ arrests, where an arrest has been made and the video recording equipment has not been activated by blue lights, the failure by the arresting officer to produce the video recordings required by this section is not alone a ground for dismissal. However, as soon as video recording is practicable in these circumstances, video recording must begin and conform with the provisions of this section. Nothing in this section prohibits the court from considering any other valid reason for the failure to produce the video recording based upon the totality of the circumstances; nor do the provisions of this section prohibit the person from offering evidence relating to the arresting law enforcement officer’s failure to produce the video recording.

If the video equipment was inoperable, if the defendant required medical treatment, if there were exigent circumstances, or if there was “any other valid reason for the failure to produce the video recording based upon the totality of the circumstances,” the officer’s failure to comply is excused and the DUI is not dismissed.

Lack of Probable Cause

Another way to get your DUI charges dismissed is by showing that the officer did not have probable cause for 1) the traffic stop or 2) the DUI charges.

Probable cause for the traffic stop could be as simple as a traffic violation – speeding, swerving, disregarding a traffic signal, or any traffic violation, even if it is just a pretext to pull you over.

Probable cause for the DUI arrest means the officer must have probable cause that you were:

1. Driving – just sitting behind the wheel, even if you are passed out drunk behind the wheel, is not enough,
2. Intoxicated while driving – on alcohol, drugs, or a combination of alcohol and drugs, and
3. Intoxicated to the extent that your faculties to drive were materially and substantially impaired.

GETTING THE BREATHALYZER RESULTS SUPPRESSED

In some cases, the breathalyzer or other blood alcohol test results can be suppressed based on the officer’s failure to follow SLED policy and procedure or based on other problems with the machine or the testing procedure.

If the breathalyzer results are suppressed, the prosecutor might dismiss your DUI charges, or they might offer a plea agreement that involves pleading to a non-DUI traffic violation. In some cases, however, the prosecutor may continue to trial relying on the officer’s and other witness’ testimony.

State v. Taylor – Dismissal of DUI Charges is no Longer the Remedy for Failure to Read Miranda Rights on the Video

Despite the plain language of Section 56-5-2953, the SC Supreme Court held in State v. Taylor last month that dismissal of the DUI is not the proper remedy when the officer fails to record the reading of Miranda rights.

Although this ruling does not impact dismissal as the statutory remedy for other violations of 56-5-2953, the Court’s disregard for the plain language of the statute in favor of helping police and prosecutors get DUI convictions does not bode well for future cases.

When the roadside video does not show the officer reading Miranda rights to the defendant, the Court says it should be treated as any other Miranda violation, and any statements made by the defendant in violation of Miranda should be suppressed at trial.

GOT AXELROD?

If you have been charged with DUI, DUAC, felony DUI, or a DUI-related offense in SC, contact a DUI defense lawyer on the Axelrod team immediately – we may be able to get your case dismissed, you may be able to avoid a license suspension, and you may have defenses that you are not aware of.

Call Axelrod and Associates now at 843-916-9300 or email us to talk with a Myrtle Beach, SC DUI defense attorney today.