State v. Sawyer – DUI – non-compliance with videotape requirement

State v. Sawyer, decided June 4, 2014, is the latest in a line of DUI cases where the S.C. Supreme Court re-affirms Suchenski and enforces the mandatory videotaping requirements of South Carolina’s DUI/ implied consent laws.  The Court held that “a videotape from the breath test site that lacks the audio portion of the reading of Miranda rights and the informed consent law did not satisfy the requirements of S.C. Code Ann. § 56-5-2953(A)(2) (2006).”

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.

On the other hand, under another line of DUI opinions (see State v. Huntley, 349 S.C. 1, 562 S.E.2d 472 (2002)), procedural violations that are not mandatory in the statute do not necessarily result in dismissal, but the defendant must show that he/she was prejudiced by the error.  Statutory language that uses terms such as “shall” or “must,” such as the videotaping requirements listed in 2953, are mandatory and are not governed by Huntley.  The State argues that defects in the videotape go “to the weight of the evidence, not it’s admissibility -” but the Supreme Court holds, consistently with Suchenski and other DUI opinions, that strict compliance with 2953(A) is a prerequisite for admissibility, unless an exception applies from 2953(B).

In Sawyer, there was no audio for the Datamaster room recording.  The Datamaster operator, who was not the arresting officer in this case, submitted an affidavit stating that the audio was not operating due to “exigent circumstances,” pursuant to 2953(B).  The circuit court in this case suppressed all evidence related to the breath test, including the video, any mention of the test, and the results of the test.  The Court of Appeals affirmed the suppression, and then the Supreme Court affirmed again in this opinion.  The Courts found that there were no exigent circumstances (exigency means an emergency, or something requiring immediate attention, and in this case the state didn’t even know about the audio malfunction for months), and that the wrong officer submitted the affidavit anyway – the statute says the “arresting officer” may submit an affidavit, not the datamaster operator.

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