Under South Carolina law, if you have been arrested for driving a motor vehicle under the influence of alcohol or drugs, for driving with an unlawful amount of alcohol in your blood, or you cause serious injury or death to another while operating a vehicle while under the influence of alcohol or drugs, law enforcement is required to videotape both the arrest, or the site where the incident took place, and the administration of the breath test, which usually takes place at the police station after an arrest. Because videotaping is mandated by South Carolina law, if an officer fails to videotape your arrest or your breath test, it is possible that your charges may ultimately be dismissed.
Videotaping Your Arrest
When a law enforcement officer videotapes your arrest, or the site where the incident takes place, the filming must begin as soon as the officer activates the lights on their police vehicle. The tape must also include footage of any field sobriety tests that may be administered, and include the arrest or probable cause determination, and show that you were advised of your Miranda rights.
Videotaping Your Breath Test
When a law enforcement officer videotapes your breath test, the officer is required to tape the entire breath test procedure. The footage must also include the officer informing you that you are being videotaped, and that you have the right to refuse the breath test. In addition, the videotape must include footage of you taking or refusing the breath test, and the actions of the breath test operator while the test is being conducted. Finally, the tape must include your conduct during the twenty-minute pre-test period, unless the law enforcement officer can submit a sworn affidavit that certifies that it was physically impossible to videotape you during the waiting period.
Because South Carolina law mandates these requirements, if you have been arrested and charged with driving under the influence and the State fails to produce a videotape that contains all of the necessary requirements of the South Carolina statute, it is possible that you may be entitled to a dismissal of your DUI charge. However, even if law enforcement or the State cannot produce a videotape that meets all of the requirements, the officer’s failure may be excused by one of the following:
- If the officer who arrested you can submit a sworn affidavit that certifies that the video equipment was inoperable despite efforts to maintain the equipment;
- If the officer who arrested you can submit a sworn affidavit that certifies that it was impossible to tape the arrest because either (a) you needed emergency medical treatment, or (b) other exigent circumstances existed;
- The arrest occurred during a road block, traffic accident investigation, citizen’s arrest, or other circumstance; or
- For any other reasons, and based on the totality of the circumstances, the video could not be produced.
If you have been arrested and charged with driving under the influence, and you believe that the arresting officer failed to tape the arrest, or failed to tape the administration of your breath test at the police station, it is imperative that you consult with a knowledgeable and experienced criminal defense attorney right away. A driving under the influence charge should not be taken lightly as a conviction can result in lengthy jail sentences, hefty fines, and other penalties. But if the State fails to produce a videotape of your arrest and/or breath test, a seasoned criminal defense attorney may be able to convince the State to dismiss your charges. The attorneys at Harwell Law Firm, P.A., can review the facts and evidence in your DUI case, advise you of your rights and responsibilities, and help you determine the best strategy for fighting your DUI charge.