DUI - Failure to Comply with Breath Video

MOTION TO DISMISS:
FAILURE TO COMPLY WITH VIDEO REQUIREMENTS

WARRANT #: *    COMES NOW the Defendant, and moves to dismiss this case on the grounds as follows: * (hereinafter "*"), is a South Carolina resident who was ticketed for driving under the influence on October 23, 2009.  The Datamaster video produced through discovery demonstrated the failure of the State to observe the twenty-minute pre-test waiting period.
    South Carolina statutory law is plain and unambiguous in its requirement that a person's conduct during the twenty-minute pre-test waiting period be preserved on videotape.  "Where the statute's language is plain and unambiguous, and conveys a clear and definite meaning, the rules of statutory interpretation are not needed and the Court has no right to impose another meaning."  State v. Gainey, 380 S.C. 23, 32-33, 667 S.E.2d 728, 733 (2008).  Indeed, "[i]n interpreting statutes, we look to the plain meaning of the statute and the intent of the Legislature. First and foremost, a penal statute must be construed strictly against the State and in favor of the defendant.  Williams v. State, 306 S.C. 89, 91, 410 S.E.2d 563 (1991); Brown v. State, 343 S.C. 342, 540 S.E.2d 846 (2001), overruled on other grounds. 
    The primary rule of statutory or constitutional construction is that a court must give to any word or phrase its clear and ordinary meaning without resorting to subtle or forced construction to either limit or expand the provisions of the language under review.  A Court should not attempt to divine the intent of the legislature when the language used is clear and unambiguous.  Gaster v. Evatt, 326 S.C. 33, 483 S.E.2d 197 (1997); State v. Blackmon, 304 S.C. 270, 403 S.E.2d 666 (1991); State v. Leopard, 349 S.C. 467, 563 S.E.2d 342 (Ct. App. 2002).  Only when the language of the constitution or statute gives rise to doubt or uncertainty as to the intent, may the construing court look beyond the borders of the statute or constitution itself.  State v. Baucom, 334 S.C. 371, 513 S.E.2d 112 (Ct. App. 1999), reversed and remanded, 340 S.C. 339, 531 S.E.2d 922 (2000).
    All rules of statutory construction are subservient to the maxim that legislative intent must prevail if it can be reasonably discovered in the language used."  Here, the meaning of the statutory mandate of videotaping is clear and unequivocal.
    The statute at issue plainly demands videotaping "a person's conduct" during the twenty-minute pre-test period.  "A person who violates Section 56-5-2930, 56-5-2933, or 56-5-2945 must have his conduct at the incident site and the breath test site videotaped."  S.C. Code Ann. §56-5-2953(A)(Supp. 2007).  As S.C. Code Ann. §56-5-2953 (A)(2) states, in pertinent part, the videotaping at the breath site:

    (b)    must include the reading of Miranda rights, the entire breath test procedure, the person being informed that he is being videotaped, and that he has the right to refuse the test;

    (c)    must include the person taking or refusing the breath test and the actions of the breath test operator while conducting the test;

    (d)    must also include the person's conduct during the required twenty- minute pre-test waiting period, unless the officer submits a sworn affidavit certifying that it was physically impossible to videotape this waiting period. However, if the arresting officer administers the breath test, the person's conduct during the twenty-minute pre-test waiting period must be videotaped.  Id.  (emphasis added).

    Quite simply, there is nothing in the statute that permits the State to prematurely terminate the videotape process once an accused refuses.  The law plainly requires that the breath site video "must" include "the person's conduct during the required twenty-minute pre-test waiting period" unless the officer submits a sworn affidavit certifying physical impossibility to do so.  S.C. Code Ann. §56-5-2953 (A)(2)(d).  The State submitted no sworn affidavit in discovery. 
    As the language is clear and unambiguous that the General Assembly intended that the State videotape the "person's conduct" during the twenty-minute pre-test period, this Court is required to look no further.  The General Assembly did not choose the words "person's conduct" on a whim, and it made no exception allowing an officer to prematurely terminate the videotape process upon a refusal. Furthermore, to the extent there is any ambiguity in the meaning, it must be resolved in Mr. *'s favor.  "As with any statute that is penal in nature, the Court must construe it strictly in favor of the defendant and against the State."  State v. Dingle, 376 S.C. 643, 649-650, 659 S.E.2d 101, 105 (2008). 
    While the officer might assert that it would be illogical or wasteful of the officers' time to require a twenty minute videotaping period in the wake of a refusal, inconvenience has never been an excuse for police ignoring the law.  To adopt a law enforcement time economy theory requires a strained and illogical construction of the clear mandate of the statute to preserve the twenty minute period of the person's conduct on video.  Moreover, such reading would gloss over the intent behind the videotaping requirement.  The logic of requiring videotaping is for the collection of evidence.  The videotaping requirement is a logical means of preserving evidence pertinent to sobriety or insobriety and allows a jury the opportunity to evaluate both the defendant's demeanor during the testing process and the fairness of the testing procedure. 
    The statutory mandate in and of itself recognizes the value of videotaped evidence of the accused both at the time of arrest and in the breath testing room.  S.C. Code Ann. §56-5-2953.  Since the statute refers repeatedly to videotaping of the "defendant's conduct," it seems clear that the General Assembly intended to maximize the opportunities for the accumulation of video evidence.  In 2008, the broad changes in the DUI statutes by the Legislature included doubling the penalty for refusing to provide a breath sample from three months to six months.   S.C. Code Ann. §56-5-2950(B)(1)(2008).  The reason behind this change is obvious.  The increased penalty was intended to be an incentive for a person to provide a sample for evidentiary purposes and to guarantee a period of time for the subject to reflect on the statutory option to take or refuse the test, hence avoiding premature refusals and providing an accused the opportunity to consider and reconsider the giving of a breath sample up until the moment of refusal at the end of the twenty-minute period.  Additionally, the requirement to videotape the person's twenty minute pre-test period allows the person to preserve evidence in his defense that is in the control of the State.  This requirement helps to insure the person's constitutional right to present a defense.  All in all, the twenty-minute pre-test period prevents premature refusals, encourages individuals to give samples, and discourages refusals. 
    The General Assembly's requirement that the entire twenty-minute period be videotaped guarantees both law enforcement's prerogative for the best evidence available of a person's conduct and the ability of South Carolina citizens to read and consider their implied consent rights during the twenty-minute period.
    Finally, although a prejudice analysis of the type contemplated in State v. Huntley, 562 S.E.2d 472 (S.C. 2002) is not required, that were such an analysis applied, the Defendant has been prejudiced by the failure of the State to preserve the defendant's conduct on video
during the twenty minute period as required by statute.  The probative value of that evidence is forever lost by the decision of the State to suspend the videotaping required by the statute, and the irretrievable loss of the Defendant's right to present his conduct during that period represents
a rather obvious prejudice of the Defendant's constitutional rights to Due Process and Right of Confrontation.  As such, even if a prejudice analysis were required, which Mr. * contends is not the case, Mr. * has demonstrated prejudice.
    Based on the above, the case should be dismissed, or in the alternative judgment of acquittal should be entered, as the State has failed to meet the requirements of the statute.

                    Respectfully submitted,


                    _________________________________
                    Steven M. Hisker
                    HISKER LAW FIRM, PC
                    126 East Main Street
                    Duncan, South Carolina 29334
                    SteveHisker@*
                    864-921-1432

                    ATTORNEY FOR THE DEFENDANT

Refusal to submit to breath test
Court:  Office of Motor Vehicle Hearings; Greer, SC
Result:  LICENSE REINSTATED (SUSPENSION RESCINDED)- February 2011

DUI
Court:  Spartanburg Magistrate Court; Spartanburg, SC
Result:  NOT GUILTY July 2011