A South Carolina Criminal Defense Blog

DUI ignition interlock bill passes SC House

“Emmas Law” passed the House yesterday with a unanimous vote, and is expected to pass the Senate as well.  The law will require drivers to have an ignition interlock device for 6 months following a DUI 1st offense conviction with a BAC of greater than .15, and it will require an ignition interlock device for 2 years following a DUI 2nd offense conviction, regardless of the BAC level.

I’m ambivalent about requiring interlock devices for persons who are convicted of DUI, provided the devices are accurate (I don’t know that they are) and that they are mandated only for a definite period of time, such as the 6 month and 2 year requirements in this particular bill.  There are some nutcases out there who would like to require every person to have an ignition interlock device on their car, or require car manufacturers to install them on every car – that is untenable.

Of course, no DUI-related article in any self-respecting publication could forgo the obligatory slap at DUI lawyers, using the word “loophole” at least once:

South Carolina’s current DUI laws contain numerous loopholes that let people charged with DUI delay or avoid trial, get off with light sentences and resume driving quickly. Representing accused and convicted DUIs is a booming, $100 million-plus annual business for attorneys in South Carolina. About 30,000 people are arrested each year for DUI.

“Loophole” translates to “constitutional protection” or anything that is written into a law to protect ordinary people from over-zealous or over-reaching government officials.  Our current DUI law was carefully crafted by defense lawyers, prosecutors, and legislators to create a balance between aggressive DUI enforcement and protection of our rights.  The newest amendments to our state’s DUI laws increased penalties dramatically, with mandatory minimum sentences of up to 3 years and maximum sentences of up to 7 years, with a system of graduated penalties based on BAC level and prior offenses.

If you think that DUI defense lawyers are not necessary, consider that our state continues a system of rewards (not quotas), including shiny new cars, for law enforcement officers who make the most DUI arrests – not convictions, but arrests, without regard to the quality of the cases or whether the person arrested was actually guilty.

If you think that the only persons charged with DUI are hopeless drunks who are carousing the highways while liquored up, you are wrong.  I have handled cases where officers charged a person whose BAC was 0.00 and who then passed a blood test as well.  I have handled many cases where the person had a drink or two drinks and was well below the “legal limit.”  Some officers will charge a person if they smell alcohol, regardless of how many drinks the person had.  Whether you drink one half of one beer or 12 beers, it smells the same on your breath.

It is not against the law to drink and then drive, nor should it be.  It is against the law to drink to a point where your faculties to drive are materially and appreciably impaired – when your reflexes are impaired to the point where you are a danger to others on the highway.  The videotaping requirement in S.C.’s DUI law is not a “loophole” – it is a necessary check on an officer’s ability to arrest and prosecute people who are not violating the law.  We don’t have to take an officer’s word for it – the defense, prosecutor, judge, and jury can see the person’s conduct during the traffic stop for themselves.

Border patrol checkpoint refusal

H/T Reason.com – checkpoint officer is polite, friendly, and extremely conscious of protecting motorists’ constitutional rights:

(April Fools . . .)

DUI – reasonable efforts to maintain video equipment

In City of Greer v. Humble, decided March 27, 2013, the S.C. Court of Appeals upheld a municipal court’s dismissal of DUI charges based on the city’s failure to comply with the mandatory videotaping requirements of 56-5-2953.  By way of background, S.C. has a mandatory videotaping requirement for any DUI stop, which is contained in S.C. Code § 56-5-2953.  The video must begin no later than the activation of blue lights, it must include any field sobriety tests administered, it must show the arrest, and it must show the person being advised of his Miranda rights.

Because these requirements are mandatory, pursuant to City of Rock Hill v. Suchenski and Town of Mount Pleasant v. Roberts, the remedy for failure to comply is dismissal of the case.  Under 2953(B), the arresting officer can submit an affidavit certifying that the video equipment was in an inoperable condition and “stating which reasonable efforts have been made to maintain the equipment in an operable condition.”  Per the language of the statute, the affidavit must contain a statement of what reasonable efforts were made.

In Humble, the Court of Appeals noted that the officer’s affidavit was deficient on it’s face because it did not contain a statement of which reasonable efforts had been made to maintain the equipment – prior to the February 2009 amendments to 2953, the statute simply said the officer was required to state reasonable efforts had been made.  In 2009, the legislature amended the statute to specify that the officer, in the affidavit, must state specifically what reasonable efforts were made.  Then the trial court must make a determination as to whether those efforts were in fact reasonable.

Here, Officer Williams’ affidavit provides “[a]t the time of the defendant’s arrest, or probable cause determination, the video equipment in the vehicle I was operating was in an inoperable condition and reasonable efforts had been made to maintain the equipment in an operable condition.” We find that the circuit court erred in reversing the municipal court’s dismissal because the affidavit is deficient on its face. Even though there is no procedure in section 56-5-2953 either preventing or allowing a timely amendment of the affidavit, the statute requires an affidavit stating which reasonable efforts were made to maintain the equipment in an operable condition. The affidavit Officer Williams provided the municipal court does not state which reasonable efforts were made; thus, the City failed to comply with the plain requirements of section 56-5-2953. . . .

Therefore, we reverse the circuit court’s order because the affidavit does not provide an excuse for noncompliance with section 56-5-2953, as required by the statute. See Roberts, 393 S.C. at 349-50, 713 S.E.2d at 287 (holding an unexcused noncompliance with section 56-5-2953 mandates dismissal of a DUI charge).

The Court goes on to address Humble’s second argument on appeal, which was that the reasons that the officer provided in his supplemental testimony at trial (although the Court has already stated that supplemental testimony is insufficient – the reasons must be included in the affidavit, per the language of the statute) were insufficient anyway.  This part of the opinion highlights the importance of obtaining the maintenance records anytime that an officer submits an affidavit under 2953(B) – the City argued that, because the officer immediately reported the problems he was having with his video equipment, reasonable efforts had been made to maintain the equipment.  A review of the maintenance record, however, revealed that the City had contacted the manufacturer and noted that the equipment needed repairs, the City then did not get the repairs done because they didn’t want to pay for them:

To borrow a quote from Michel de Montaigne, we find that in its most basic sense, the municipal court merely found “saying is one thing and doing is another.”1 Quite simply, the statute requires reasonable efforts. The municipal court essentially found as a fact that saying something is broken while refusing to pay for a repair visit is not enough. The “reasonable efforts” language of the statute requires some “doing,” and refusing to pay for repair visits evades the intent of the statute and is not “doing” enough to constitute reasonable efforts to maintain the video equipment in an operable condition.

First – a statement of which reasonable efforts have been made must be contained in the officer’s affidavit, and the affidavit cannot be supplemented by testimony at trial.  Second – whenever an affidavit is submitted, get the maintenance records, rather than taking the officer’s word for it.  Whether the efforts made were in fact reasonable is a question for the Court.


Foundations, anchors, and opening statements

Skimming through notes on my iphone from the past year or so, I came across one that I wrote about foundations, anchors, and opening statements.  I’m pretty sure that I wrote the note during a murder trial last year in York County.  Not in the courtroom though.  Judge Cole would have a fit if he saw me typing notes on my iphone in the courtroom.

It occurred to me that opening statement is like laying a foundation for a building – if the foundation is strong enough, it can weather the storm that comes during the state’s case.  They can make allegations, poke holes in the walls, and blow shingles off the roof, but if the foundation is still solid by the end of the state’s case you have won the trial.

Then again, it occurred to me that opening statement is more like casting an anchor – if your ship is anchored well, when the storm comes it may get dragged a ways but it will hopefully weather the storm.  If the anchor doesn’t catch on anything, when the storm comes during the state’s case your ship will get blown away and beached or sunk.  I’m no sailor, much as I would like to be, but the analogy fits in my mind.

Opening statement has to tell my client’s story, and it needs to be compelling.  One thing that all people have in common is that we like stories, we want to be entertained, and we relate to others through story.  Most trials that I’ve lost had one thing in common – looking back, I did not tell my client’s story.  The jurors never got to know who my client was and there was nothing there for them to connect with.  Most of the trials that I’ve won were exactly the opposite – I was able to tell a compelling story, beginning in the opening statement and continuing through cross-examination, direct examination, and closing argument.

Unfortunately, most attorneys don’t tell their client’s story in the opening statement – most prosecutors do not give much to the jurors in opening, and in appeals and PCR’s that I have handled from other attorneys’ trials, rarely have I read an effective opening statement.  I believe that trials are won or lost in opening statement.  Jurors are going to view the testimony during the trial through a framework – if you don’t provide that framework they will view the evidence through the prosecutor’s framework, and if neither you nor the prosecutor provide a framework, the jurors will view the evidence through their own framework that may not be accurate at all.

Anyone who knows me knows that I am not a religious man.  But . . . some words of wisdom about opening statements from the New Testament:

“Everyone then who hears these words of mine and does them will be like a wise man who built his house on the rock. And the rain fell, and the floods came, and the winds blew and beat on that house, but it did not fall, because it had been founded on the rock. And everyone who hears these words of mine and does not do them will be like a foolish man who built his house on the sand. And the rain fell, and the floods came, and the winds blew and beat against that house, and it fell, and great was the fall of it.”

Matthew 7:24-27; and

Everyone who comes to me and hears my words and does them, I will show you what he is like: he is like a man building a house, who dug deep and laid the foundation on the rock. And when a flood arose, the stream broke against that house and could not shake it, because it had been well built. But the one who hears and does not do them is like a man who built a house on the ground without a foundation. When the stream broke against it, immediately it fell, and the ruin of that house was great.”

Luke 6:47-49.

More on discovery violations in the 9th circuit

The Charleston Post and Courier is reporting that an assistant solicitor in the 9th circuit was found to have withheld evidence in a trial today – the defendant is charged with a double homicide, the state has mis-tried the case twice already, and the assistant solicitor elicited testimony from a detective about a statement allegedly made by the defendant that had never been turned over to the defense, that was not in any of the state’s reports, and that had never been mentioned in the previous two trials:

[Judge] Nicholson found that Assistant Solicitor Greg Voigt had violated a rule requiring the disclosure of information that prosecutors intend to offer as evidence during a trial. It’s the same issue that drove a group of defense attorneys to recently request a state investigation into whether it’s a deliberate practice in the 9th Circuit Solicitor’s Office.

Instead of scuttling another trial, Nicholson told jurors to disregard that portion of Boone’s testimony when they deliberate Williams’ fate Thursday.

It may be that the assistant solicitor in this case didn’t know that the evidence had not been disclosed – according to the article, there was a different prosecutor for the first two trials.  If that is true, if it was not an intentional violation, it still shows a lack of preparation – he was responsible for learning the file and making sure that all evidence had been turned over before the trial began.  And, when there is a pattern of repeated discovery violations and other misconduct coming out of the same office, where does the blame lie?

Scarlett Wilson, who is in charge of the 9th Circuit Solicitor’s office and responsible for the training and supervision of the assistant solicitors there, led the charge to lambast Justice Beatty following his remarks at the solicitor’s conference, sending a much-publicized letter to the S.C. Attorney General asking for his assistance in having Justice Beatty recused from all criminal appeals and disciplinary matters that involve prosecutors.

Don’t rock the boat

I feel compelled to write about why I write about police misconduct, and prosecutorial misconduct.  Believe it or not, I care about what you think.  More importantly, I have friends who are police officers and family members who are police officers, and I care about what they think.

The public wants to believe that there is no systemic police misconduct.  It is always an isolated incident.  We want to believe that police officers are a special breed of honest, ethical, and upstanding human.  We need to believe that, because we want to feel safe.  We want to feel that our trust in public officials is not misguided.  I write about police misconduct because I’ve been on the front lines and I’ve seen that it isn’t always so.  Police officers are human – sometimes they lie, they cheat, they hurt other people and they abuse the power that we give them.  When they shine, they really shine.  But when the evil side of human nature comes through, it is twice as ugly because of the authority that police are vested with.

I don’t hate police officers.  I have an incredible amount of respect for any person who goes into law enforcement, risking their life and their health in the interest of keeping the rest of us safe, usually for low wages and little reward.  Criminal defense and law enforcement are two sides of the same coin – both sides’ goals are to enforce the laws and constitution of our state and nation, and to protect the citizens of our state and nation.  Both sides are needed to accomplish these goals and to keep the balance.  On both sides, we need advocates who go into their professions for the right reasons, not people who are just doing a job and drawing a paycheck.

I want you to do your job and to do it well.  But, if you are lying under oath, losing your temper and hurting people on the street, or using your authority for personal gain, you are not doing your job – you’re just an asshole with a badge.  There are not many things more frightening than an unethical human being who is out to help themselves with a badge and a loaded gun.

If you actually read the blog posts that I write, you would see that I am not bashing police officers or law enforcement.  I express my opinion about departmental policies such as when to chase a suspect – an important issue that needs to be discussed because it has a tremendous impact not just on the lives of motorists but of police officers as well.  I blog about abundant specific examples of officers who commit crimes – another important issue that reflects on the leadership and policies of specific police departments.  I don’t usually blog about warm fuzzy cop stories – it doesn’t mean I don’t see those and appreciate them, they just don’t typically have a place here.

If you are a cop, and you are not lying under oath, beating your wife, tampering with evidence, beating suspects while they are handcuffed, driving drunk, or arresting people who have not committed a crime, I am probably not complaining about you.

The same is true about prosecutorial misconduct.  I have to say that locally there are some of the most ethical and conscientious prosecutors that I could ever hope for, and I am grateful for them.  There are also a few that have proven they are not trustworthy, and that they will cheat to get results.  Unfortunately, the job attracts both types.

I’m going to continue to write about police misconduct and prosecutorial misconduct, because I don’t see anyone else doing it.  If no one writes about it, if no one points it out, the public will continue to believe that it doesn’t exist.  Lawyers don’t want to “rock the boat.”  Some are afraid, some are too political, and some just don’t care.  Sometimes, our job is to rock the boat.  Sometimes, if it’s necessary to make positive changes, it’s our job to sink the boat.


The latest on the Beatty controversy/ prosecutorial misconduct in South Carolina

Gideon, from A Public Defender, now has a column at the Connecticut Law Tribune titled “Your Bias is Showing,” where he continues the conversation about prosecutorial misconduct nationwide and where he comments specifically on Beatty’s much-maligned (or much-applauded, depending on the listener) comments at the Solicitor’s Conference this winter:

First Judge Michael Sheldon of the Connecticut Appellate Court called it “a deliberate pattern of improper conduct” in State v. Santiago. Then, in another reference to prosecutorial misconduct, a Fourth Circuit opinion in U.S. v. Bartko pleaded “whatever it takes, this behavior must stop.” And Chief Judge Alex Kozinski of the Ninth Circuit started a blistering dissent in U.S. v. Olsen with the following: “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.”

Yet when South Carolina Supreme Court Justice Donald Beatty warned prosecutors that they had “been getting away with too much for too long” and that the South Carolina Supreme Court would “no longer overlook unethical conduct such as witness tampering, selective and retaliatory prosecutions, perjury and suppression of evidence,” and cautioned that prosecutors’ “bar licenses will be in jeopardy,” the main prosecuting authority in South Carolina—the attorney general—threatened to move to recuse Beatty in all criminal cases, citing bias.

I wrote about it last December, in “The pendulum has been swinging in the wrong direction for too long,” and Simple Justice’s Scott Greenfield wrote about it in “The hit dog hollers.”  Following Beatty’s comments, thirteen of South Carolina’s sixteen solicitor’s offices, including the Ninth Circuit Solicitor, wrote to the state’s attorney general, in a much publicized letter seeking the attorney general’s support in seeking the recusal of Justice Beatty in all matters involving criminal cases or ethics complaints against prosecutors.  The attorney general replied in another public letter, sympathizing with the solicitors over the justice’s unfortunate comments and agreeing to seek his recusal where appropriate.

S.C. Senator Larry Martin was quoted in the Charleston Post and Courier as saying the justice’s remarks were inappropriate and intimidating, and that, although there may be isolated cases of prosecutorial misconduct in the state, “I don’t believe it is a major problem.” The South Carolina Association of Criminal Defense Lawyers (SCACDL) issued a press release in response to the Solicitor’s public letter, questioning why “prosecutors in this state get so upset when they are reminded that they have an ethical duty not to win at any costs, but rather to administer justice.”

Since then, SCACDL sent it’s own letter to the state’s attorney general, outlining a series of specific examples of alleged ethical misconduct in just one state solicitor’s office in the 9th circuit and asking the attorney general, in keeping with his constitutional obligation to supervise all prosecutions in the state of South Carolina, to investigate the allegations of misconduct in the 9th Circuit Solicitor’s Office.  The 9th Circuit Solicitor responded with a press release that disputed the “version of events” outlined in the allegations.

The Attorney General’s office has responded in a brief letter that does not address the allegations but rather punts the issue, declaring that “the Attorney General’s Office is not equipped with the resources to conduct these types of investigations.”

Full disclosure: I am currently the president of SCACDL, and I struggled with whether I should write about this on Trial Theory.  I want to be clear that on this blog, I do not speak for SCACDL and this blog is in no way associated with the organization.  However, I do feel that this is a critical criminal law issue in our state and nationwide, and it is important for criminal defense lawyers and prosecutors to continue the conversation.

Edit:  Radley Balko also has an article at the Washington Post.

Can I be charged with Driving Under Suspension if I never had a driver’s license?

In South Carolina, you can’t be convicted of driving under suspension if you never had a license in the first place – there is a separate statute that makes it a crime to drive without a license.

On Avvo’s neverending circus of wrong answers provided by out-of-state lawyers playing the Avvo contributor level video game, Illinois DUI lawyer Ted Harvatin not only gives the incorrect answer to the above question, but goes on to insult the asker with some nonsensical attempted wit:

As nice as it would be to get away with a crime simply by not having the necessary permission to be where you wanted to be.. just think you could trespass and while you were there you could murder someone and get away with it.

S.C. Code § 56-1-460 makes it a crime to drive on a public highway when your license has been cancelled, suspended, or revoked.  Of course, if you have never had a license, then you’ve never had a license be cancelled, suspended, or revoked.  S.C. Code § 56-1-20 prohibits driving when you do not have a license, and the punishment is provided in S.C. Code § 56-1-440 “penalties for driving without a license.”

It is a crime to drive either way, whether you have no license or you had a license which has been suspended, but the difference is in the punishment.  A conviction for DUS/ driving under suspension can carry a significant potential prison sentence – up to, on a 3rd offense when the license was suspended for DUI, a mandatory minimum of 6 months to 3 years in prison.  A conviction for DUS carries higher fine amounts and an additional suspension of the person’s license, which could complicate matters if a person has never had a license and wants to get one.

Driving without a license – DWOL or no SCDL – has significantly lower fine amounts and has no effect on a person’s ability to get a license down the road.

Question and Answer

Just in case Google did not have the answer you were looking for, I am here to help.  Some search terms that brought people to trial theory in the last year (it’s been a while, hasn’t it):

find a case that cites this case and explain why the court in your case found the neil v. biggers case a useful precedent:  I’m guessing that, while taking a law school exam, this person just googled the entire exam question on their smart phone?  Dude, I am not going to help you cheat.

what were the guidelines in the neil v. biggers case:  Seriously, I’m not going to do it.

how to get a cdv off your record: If you have no other convictions, a CDV 1st offense can be expunged after five years.

do i need a lawyer at general session roll call:  Yes.  Although nothing substantive happens at roll call and, at least in Horry County, there is no judge there, you don’t want to be there without an attorney.  Also, apart from the Bond Returnable, there is a good chance that if you had a competent attorney you wouldn’t have to be there at all, because your attorney would have gotten you excused.

polygraphs pros and cons for criminal trials: there are no pros and cons for trial – they are inadmissible, period.  They are not admissible because they are not sufficiently reliable to be admitted.  Before trial, you need to know that polygraphs are used by law enforcement as an interrogation tool, and they are not used to clear your name.  Although the polygraph results are not admissible, anything that you say is.

state magistrate courts officers prosecute own cases: In Horry County, we have two assistant solicitors who work in the magistrate court who only prosecute CDV’s and DUI’s.  Every other type of case is prosecuted by the officer who made the case.  You might say this is not fair – officers have not been to law school and should not be required to try criminal cases.  You might also say it’s not fair when indigent CDV and DUI defendants, who also have not been to law school, are required to defend their own cases against trained prosecutors because we do not give them appointed counsel.

sc cwp law on carrying in bars:  If you have a concealed weapon permit in S.C., you can now carry your weapon in a restaurant or bar, as long as you are not drinking.

“mere presence at the scene of a crime”:  is not evidence of a crime.  It’s not probable cause, and it is not sufficient evidence for a case to be submitted to the jury.  Many officers think that if you are there when a crime is committed, you are guilty under “hand of one is the hand of all,” or accomplice liability, but it’s not true.  Accomplice liability requires that 1) you are there; 2) you know what’s happening; and 3) you participate in some way.  If all three elements are not present, you have not committed a crime.


is the drowning man trial real :  I don’t know.  If you mean, can “the drowning man” really be a theme at trial, then absolutely.  The jailhouse snitch, like the drowning man, will drag down everyone within reach.  Never trust a man with a family.

can a confidential informant videotape me: Absolutely.  Just because you are paranoid doesn’t mean they’re not out to get you, Jerry.

public defender “trial chicken”:  When you play “chicken,” whether it’s in a car or in a courtroom, the person who is willing to crash and burn wins.  Or crashes and burns, on occasion.  If you’re willing to crash and burn, you may have the advantage.

can an employee in south carolina represent their company in magistrate courtAbsolutely not.  And if they do, they should know that unauthorized practice of law is a crime that carries up to five years in prison.

theory of defense for robbery: It was my stuff, I was just taking it back.  As a matter of fact, he robbed me.  She told me I could borrow it, then she just flipped out.  Some other dude did it.  At the exact time of the alleged robbery, I was feeding the homeless with several nuns and local government officials, all of whom are prepared to testify to my whereabouts?

criminal trail defence perspective:  I saw the criminal approaching, through a gap in the trees ahead.  I quickly set up a perimeter with trip wires connected to small bells, and hid behind a fallen oak about 20 yards off the trail, with my back to a large rock at the bottom of the cliff face, with a clear view of the trail ahead.  I took off my pack so it would not slow me down, hiding it beneath the tree.  He would not surprise me here, and I would have the advantage if he attempted to attack.

beach naked old woman:  Really?  There was a blog post about Dorchester County cops who tazed a naked 80 year old woman, but do you suppose that is what the anonymous googler was looking for?

are defense lawyers friends: Shocking as it may be, I have some friends that are defense lawyers.

S.C. Police Misconduct Update

A 70 year old disabled veteran was shot by a York County deputy as he reached for his cane during a traffic stop – sheriff’s department spokesman says the shooting was unfortunate but appropriate.

A Cherokee County sheriff’s deputy was charged in federal court for confiscating electronic gambling machines and then selling them instead of turning them in as contraband.

A 68 year old man was shot and killed by police officers in Edgefield County after he did not stop for police – although the chase began in North Augusta, apparently SLED has not released the names of the officers involved, the agency that they work for, or why they shot the man.

The Williamsburg County Sheriff Michael Johnson was indicted in federal court for conspiracy to commit wire fraud, accused of creating false police reports so customers of a credit-repair business could claim that overdue bills were caused by identity fraud.  Johnson is the 6th S.C. sheriff in 4 years to be arrested and charged with a crime.  A 7th died of a heart attack before he could be charged, accused of taking more than $200,000  in public funds.

A lawsuit filed against the Georgetown County Sheriff by three women who were raped by a detention center guard was scheduled for trial last week – according to the Georgetown County public index the case settled, however.  The guard, Belvin Lee Sherrill, pled guilty to sexually assaulting the women and was sentenced to 18 months in prison.

The former Simpsonville Chief of Police and a former detective were indicted for misconduct in office in connection with the “improper forfeiture and collection of impound retrieval fees related to a 1975 Harley Davidson motorcycle.”  The same detective was arrested in 2013 and charged with obstruction of justice and misconduct in office.

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