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 of the 16th Circuit 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, Brackett said. According to his records, 60percent of DUI arrests in York County during the first quarter of 2014 resulted in drunken driving convictions, compared to 36percent 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.”