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.