Recent South Carolina case may change police procedures during DUI arrests | Goose Creek Criminal Attorneys

On July 10, the South Carolina Court of Appeals published their opinion in State v. Henkel, a case dealing with the legal requirement of video at DUI stops. The case addressed SC Code section 56-5-2953, which applies when a person violates either section 56-5-2930 (operating a motor vehicle while under the influence of alcohol or drugs), section 56-5-2933 (driving with an unlawful alcohol concentration) or 56-5-2945 (offense of felony driving under the influence). In an arrest for any of these three violations, 56-5-2953 states that there must be a video recording of conduct at the incident site and at the breath test site. The recording taken at the incident site must include any field sobriety tests administered and must show both the actual arrest and the person being advised of his/her Miranda rights.

The Court held in Henkel that the video taken at the incident site failed to comply with section 56-5-2953 because of the time at which the video was activated. Pursuant to this section of the Code, a police officer is required to read a person his/her Miranda rights before issuing any field sobriety tests. In addition, the arrest and the field sobriety test(s) must be caught on video tape “as soon as practicable.”

In Henkel, the officer first approached the suspect while he was being treated for injuries sustained in a collision earlier that night. The arresting officer read Henkel his Miranda rights and then conducted a gaze test. The officer subsequently moved Henkel to the side of the patrol car and administered an ABC test. Both field sobriety tests were captured by audio, but neither on video. After administering the ABC test, the officer moved Henkel into the patrol car, at which time he turned the dashboard camera to face Henkel, and read him his Miranda rights again. The trial court determined that the audio recordings of the tests were sufficient to fulfill the requirements of the statute. However, the Court of Appeals reversed the trial court’s decision and held that because the Miranda reading that was videotaped was done so after the field sobriety tests were administered, and because there was no actual video of these tests, the recordings did not conform to the requirements of section 56-5-2953.

You can read the complete Court of Appeals decision in State v. Henkel by clicking here, and you can read the applicable statutes by clicking here.

If you or someone you know has been arrested on DUI charges, contact Miller|Conway, Goose Creek Criminal Attorneys, at 843.764.3334. to set up a consultation. You may also like us on facebook, follow us on twitter, or visit the firm’s website for more information.

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