South Carolina law requires officers making DUI arrests in Charleston and elsewhere to videotape the subject’s conduct at the scene of the stop, including any field sobriety tests administered. If the video is not provided or doesn’t contain everything it’s supposed to, it can result in a dismissal of the DUI! For example, due to faulty equipment, bad positioning, wind, or other reasons, we find that the audio is not present or too distorted to understand such as in the case of State v. Sawyer. In the case, the court found that when a defendant is advised of his or her Miranda warnings in the breathalyzer room, the audio must also be activated. In another case, State v. Gordon, the court reviewed the videotaping of a field sobriety test called the horizontal gaze nystagmus (HGN) test. Many people know the HGN as the “pen test” where the officer has the subject keep his or her head still but follow a pen or other object with only the eyes as the officer moves the pen back and forth across the subject’s line of sight. In Gordon, the video did not show Mr. Gordon’s head when the officer administered the HGN test. The court held that the subject’s head must be shown on the HGN portion of the video.
The one exception to the videotaping is rule is when the arresting officer submits an affidavit certifying that the video recording equipment was in inoperable condition and that reasonable efforts were made to maintain the equipment. In the case of City of Greer v. Humble, the issued an opinion regarding the sufficiency of the officer’s affidavit. The prosecution did not produce a videotape of the incident site. Instead, the officer submitted an affidavit stating that the video camera was inoperable and that reasonable efforts were made to maintain the equipment. However, at trial, the officer’s testimony and other evidence suggested that the police did not adequately respond to complaints concerning the video equipment. The court held that the prosecution did not make a sufficient showing that reasonable efforts were made to maintain the equipment. The court stated that “the determination of whether reasonable efforts were made to maintain the video equipment in an operable condition is a determination to be made on a case-by-case basis.” In other words, the court clarified that the “reasonable efforts” language of the statute requires some “doing” on the part of the prosecution and that the officer must not only submit an affidavit but must also prove that the contents of the affidavit are adequate to excuse the failure to videotape the subject at the arrest scene. The court has previously found that the primary intention behind the videotaping statute was to reduce the number of DUI trials heard as swearing contests by mandating the prosecution videotape important events in the process of collecting DUI evidence.
What all these cases have in common is that they show the importance of the videotape in a DUI case. Our courts have stated that the videos are an important avenue of preserving evidence of what is usually a very subjective charge. Our courts have also made it clear that if the police don’t video certain portions of the night of the arrest without a valid excuse, the courts will dismiss the DUI’s.