South Carolina DUI Law

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 "Mr. *"), is a South Carolina resident who was ticketed for driving under the influence on October 23, 2009. The incident video produced through discovery demonstrated that the State failed to timely activate the camera upon initiation of the blue light.
    South Carolina statutory law is plain and unambiguous in its requirement that the camera must “not begin later than the activation of the officer’s blue lights.” S.C. Code Ann. § 56-5-2953(A)(1)(a)(I) (2009). "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 states, “The video recording at the incident site must mot begin later than the activation of the officer’s blue lights. S.C. Code Ann. §56-5-2953(A).
    Quite simply, there is nothing in the statute that permits the State to begin videotaping after the activation of the blue lights. The law plainly requires that the video recording must not begin later than the activation of the blue light.
    As the language is clear and unambiguous that the General Assembly intended that the State begin videotaping before the activation of the blue light, this Court is required to look no further. The General Assembly did not choose the words "must not begin later" on a whim. 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).
    The statutory mandate recognizes the value of videotaped evidence of the defendant’s conduct behind the wheel. Ideally, the trooper would follow the defendant before initiating the blue lights so to preserve evidence of the defendant’s driving. 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. The reason behind this that the primary issue in the case is whether the person’s driving was materially and appreciably impaired. Additionally, the requirement to videotape the person's driving before activation of the blue light 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.
    The General Assembly's requirement that the video recording begin before the activation of the blue lights guarantees both law enforcement's prerogative for the best evidence available of a person's driving and the ability of South Carolina citizens to exercise their constitutional right to present a defense.
    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 driving on video prior to initiation of the blue light. The probative value of that evidence is forever lost by the decision of the State to initiate the videotaping late, and the irretrievable loss of the Defendant's right to present his driving 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