Not so Shady After All – DUI Dismissed Pursuant to Suchenski

When William Goldfinch IV, who serves on Conway City Council, was pulled over in June, the officer claimed that he failed a roadside sobriety test and then he refused the breathalyzer.

Goldfinch’s DUI charge has since been dismissed, and some are wondering is it because he serves on City Council?

Is something shady going on? Or was his case handled appropriately?

What Went Wrong?

According to South Carolina law, refusing the breathalyzer means you automatically lose your driver’s license and must enroll in ADSAP.

A DUI conviction means you lose your license, enroll in ADSAP, possibly install an ignition interlock device (IID), pay fines, buy SR-22 insurance and keep it for at least three years, and possibly do time in jail.

Goldfinch instead pled guilty to “driving left of center.”

As if someone had done something shady, the Fifteenth Circuit Solicitor’s Office and S.C. Highway Patrol are each blaming each other for the dismissal of the DUI charge:

A spokesman for the state patrol says the decision not to prosecute was made with the solicitor’s office…

“The case was handled by the S.C. Highway Patrol, we didn’t have anything to to do with the case,” [Fifteenth Circuit Solicitor] Richardson said…

“I got a letter in the mail saying they were dismissing my charges, that’s all I know,” Goldfinch said. “I did not make a deal, I didn’t ever go to court.”

Was something shady going on? Surprisingly, given the official response, no.

Maybe the Case was Handled Appropriately, After All?

If you watch the dashcam video, it is not clear whether Goldfinch was under the influence. He is not staggering, his speech does not seem slurred, and he is polite with the officer.

More importantly, when the officer gives him the field sobriety tests (FSTs) – the walk and turn and the one leg stand tests – the officer positions him so that you cannot see his feet in the video.

The purpose of the videotaping requirement is so that defense lawyers, prosecutors, judges, and juries can see his performance for themselves. We have no way of knowing how he performed because we can’t see it.

After years of appellate opinions and law enforcement training on this issue, the officer knows that a suspect’s feet must be visible during the FSTs. If the FSTs are not visible on the recording, unless there is a very good reason and the officer provides an affidavit, the DUI is dismissed.

Period.

What Happened Behind the Scenes?

I don’t get why highway patrol and the solicitor’s office pointed fingers at one another as if something shady happened and no one wanted to take the blame. This statement from the officer makes sense and is probably what happened:

Cpl. Sonny Collins with the highway patrol said the arresting trooper conferred with Jacqueline Smith in the solicitor’s office “about the evidence and what was there, and they made that decision about the prosecution and where that would go in the courts.”

If the prosecutor knows that the Court will dismiss a case, the caselaw is clear that the case should be dismissed, and the prosecutor goes forward anyway, they are acting unethically. Their job is to prosecute cases that can and should be prosecuted, to uphold the law, and to follow the law. They don’t get to make up the law and should never attempt to prosecute a case that they know is unprosecutable.

City of Rock Hill v. Suchenski and a long line of cases since are clear that the remedy for failure to follow the videotaping requirements is dismissal:

The common thread in City of Rock Hill v. Suchenski and the cases that follow is simple and it is consistent – if the officer does not comply with the mandatory requirements of  56-5-2953, the remedy is dismissal unless the arresting officer submits a sworn affidavit setting forth a valid reason for the non-compliance that complies with the language of the statute.  No video, no audio on the video, Miranda is not shown on the video, FST’s are not shown on the video (under the current statute), video begins later than activation of the blue lights – it doesn’t matter what the non-compliance is, if it is listed in 2953 and it is mandatory, and there is no valid affidavit per the statute, dismissal is an appropriate remedy.

No one did anything wrong. Goldfinch may or may not have been DUI, but his case was unprosecutable because the officer did not follow the law while administering the field sobriety tests.

SC DUI Defense Lawyer in Columbia, Lexington, and Myrtle Beach

If you have been charged with DUI in the Myrtle Beach, Columbia, or Lexington, SC areas, we will help you to get your case dismissed, find an acceptable resolution, or try your case to a jury.

Call at 843-444-6122 or fill out our online contact form if you have questions or to set up a free initial consultation.

2 Responses to “Not so Shady After All – DUI Dismissed Pursuant to Suchenski

  • My question is, and it’s referenced several times in the text, why didn’t the officer do a sworn statement? Wouldn’t that have given the prosecution a leg to stand on? The officer should have known that a sworn statement would be needed. Who told him/her not to do it?
    It still smells.

  • An affidavit would not fix the issue in this situation – there really is no valid excuse for not recording the entire FST’s including feet. If the video equipment was broken or there was something valid preventing the recording, an affidavit might fix it.

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