Apr 28, 2012 | DUI & DWI, Uncategorized
Below is the second part of the thought provoking article by Ms. Denning addressing whether due process requires that implied consent warnings be advised in a defendant’s native language in order to assure understanding of same. Ironically, the relatively simple question has no current appellate answer. Common sense has taken a backseat to legal analysis. That which would appear rhetorical has countervailing arguments and strong positions for both sides. Of course, we forget that there are other countries represented in immigration matters besides hispanic. Certainly, people from central and latin america are the predominant immigrants to the United States, but there are other nationalities involved as well. It would seem, nevertheless, in this enlightened computer age that use of a language converter program easily available on the internet could translate the implied consent warnings into virtually any dialect and provide defendants with fair notice of their rights. Only lawyers take the simple and make it unnecessarily complex.
The criminal defense attorneys of Reeves, Aiken & Hightower LLP provide aggressive representation of those individuals accused on a crime. Our primary focus in criminal court is DWI, but we also routinely fight charges of DWLR, CDV, drug offenses, as well as all NC traffic violations. Our lawyers are available to speak with you directly, and we have spanish-speaking staff onsite to help our non-English speaking clients. For more information about our firm, please visit www.rjrlaw.com. Compare our attorneys’ credentials to any other law firm. Then call us for a private, confidential consultation at 704-499-9000.
Providing Notice of Implied Consent Rights to Persons Who Do Not Speak English (Part II)
February 2nd, 2011
By Shea Denning
Part I of this post left for another day consideration of whether a defendant who does not speak English may be deemed to have willfully refused a chemical analysis when notice of the implied consent rights is provided only in English and whether providing notice only in English may violate such a defendant’s constitutional rights. That day has arrived. [Editor’s note: already!]
Rather than considering notice of implied consent rights as properly provided when the rights are read as set out in the statute, even if they are read in English to a non-English speaking defendant, the appropriate focus may be upon whether the officer used reasonable methods to convey those warnings. The Supreme Court of Wisconsin in State v. Piddington, 623 N.W.2d 528 (Wis. 2001), employed such an approach to determine whether an officer appropriately conveyed implied consent warnings to a deaf defendant. The Supreme Court of Iowa adopted the Piddington approach in State v. Garcia, 756 N.W.2d 216 (Iowa 2008), determining that the officer in that case used reasonable methods to convey implied consent warnings to a defendant who understood limited English.
If reasonableness is the touchstone, then it must require something more than stating the rights in English to a person who does not understand the language, though it may not require than an interpreter be provided in every instance. Cf. State v. Ortez, 178 N.C. App. 236, 245 (2006) (holding that grammatical errors in Raleigh Police Department’s Spanish translation of Miranda warnings did not render warnings inadequate as adequacy is determined by whether warnings reasonably convey Miranda rights). For example, providing a copy of implied consent warnings translated into Spanish for literate Spanish-speaking defendants—a practice already utilized by many chemical analysts—may be sufficient. But see People v. Garcia-Cepero, 2008 WL 4681928 (N.Y. Super. Ct. October 23, 2008) (holding that a defendant who did not speak English was not provided warnings about taking a breath test in “clear and unequivocal language,” even though the defendant, who spoke Spanish, was shown a video in which the warnings were translated into Spanish). Utilization of a telephonic interpreter service, such as that provided for use of judicial officials by the Administrative Office of the Courts, also might be a reasonable option for conveying the warnings, if such a service was available. Evaluation of the reasonableness of the warnings requires consideration of the fact that alcohol dissipates from breath and blood over time and that the very purpose of the implied consent law is to facilitate the gathering of evidence as to a defendant’s alcohol concentration. See Piddington, 623 N.W.2d at 542. Thus, it may be unreasonable for the State to delay testing for hours awaiting the arrival of an interpreter.
Is it a violation of the constitutional right to equal protection under the law for the State to provide notice of implied consent rights solely in English since non-English speaking defendants, unlike their English-speaking counterparts, are unable to understand the warnings? State supreme courts in Georgia and Illinois have held that it is not. SeeRodriguez v. State, 565 S.E.2d 458 (Ga. 2002); People v. Wegielnik, 605 N.E.2d 487 (Ill. 1992). The implied consent statutes in Georgia and Illinois, like North Carolina’s, are silent regarding the language in which the warnings must be given. Thus, the statutes, on their face, create no classification differentiating among similarly situated persons. Noting that a facially neutral statute violates equal protection only when enacted or applied with a discriminatory purpose, Rodriguez and Wegielnik determined that the defendant had failed to demonstrate any such discriminatory purpose.
Rodriguez further held that even if Georgia’s implied consent law does classify defendants based upon whether they speak English, it nevertheless is constitutional. In so holding, Rodriguez rejected the notion that a classification based on language is a proxy for a suspect classification, such as one based on national origin. Other courts likewise have rejected this argument. See Flores v. Texas, 904 S.W.2d 129, 130 (Tex. Crim. App. 1995) (en banc) (rejecting defendant’s argument that different treatment based on his inability to speak English is equivalent to discrimination based on race or national origin); Kustura v. Department of Labor and Industries, 175 P.3d 1117, 1132-33 (Wash. App. 2008) (“While there is some authority that singling out speakers of a particular language merits strict scrutiny, no case had held that the provision of services in the English language amounts to discrimination against non-English speakers based on ethnicity or national origin.”). Because language classification is not a suspect classification, the Rodriguez court determined that the statute need only survive rational basis review, a test it easily met on the bases that reading rights in English informs most drivers, providing notice of rights in each driver’s native language would impose severe administrative costs, and waiting for an interpreter could delay obtaining a driver’s blood alcohol concentration, which dissipates over time.
The defendant in Rodriguez also argued that due process required that a driver be meaningfully advised of implied consent rights so that he or she could exercise those rights in a meaningful fashion. The court disagreed, characterizing implied consent warnings as “a matter of legislative grace,” and concluding that due process does not require that the warnings be given in a language that the driver understands. 565 S.E.2d at 462. The Weigelnik court likewise concluded that “[b]ecause due process does not require that the summary suspension warnings be given at all, it does not require that they be given in a language the defendant understands.” 605 N.E.2d at 491. This language brings to mind the North Carolina Supreme Court’s characterization of the right to refuse testing as “a matter of grace” granted by the legislature and not a constitutional right. State v. Howren, 312 N.C. 454, 457 (1984).
Garcia-Cepero , an unpublished decision of a trial judge in New York, is the only opinion I’ve discovered that deems the failure to provide an interpreter to deliver implied consent warnings in a language the defendant understands a violation of the defendant’s constitutional rights. 2008 WL 4681928. The analysis in Garcia-Cepero is muddied by the court’s finding that defendants who did not speak English were given only chemical tests, while English speakers were given field sobriety and chemical tests, and by the court’s analysis of the due process violation as one of procedural, rather than substantive, due process. Nevertheless, Garcia-Cepero merits review for its conclusion that the failure to provide an interpreter for the chemical analysis and field sobriety tests violates a defendant’s Sixth Amendment right to present a complete defense.
I previously noted that no North Carolina appellate opinions address the providing of implied consent warnings to persons who do not speak English. I’m guessing, however, that some readers have litigated this issue in district and superior court. I’d love to hear from you about how the issue was raised and resolved, whether there are procedures employed to advise non-English speakers of their rights that I have failed to mention, and your thoughts about the appropriate analysis.
Apr 23, 2012 | DUI & DWI, Uncategorized
The first of a two part article below raises and discusses an interesting point regarding implied consent warnings prior to submitting to a breathalyzer chemical analysis. With the growth of non-English speaking defendants, is there actually a right to be explained in a defendant’s native language? How many different languages would be necessary? Would interpreters be required? Currently, the NC caselaw is silent on this issue. However, Ms. Denning explores legislative intent in drafting the implied consent statute. It is an interesting debate of whether the statute just requires a robotic reading of the implied consent rights in English or whether some form of meaningful understanding is actually envisioned.
The criminal attorneys at Reeves, Aiken & Hightower LLP appreciate the subtle nuances of DWI laws and will fight to make certain the State proves each and every element required beyond a reasonable doubt. Our lawyers are aggressive trial attorneys and are not afraid to go to court. To find out more about our credentials and qualifications, please visit our firm’s website at www.rjrlaw.com. We welcome an opportunity to review your case. Call us today at 704-499-9000 and schedule a private consultation.
Providing Notice of Implied Consent Rights to Persons Who Do Not Speak English
February 1st, 2011
By Shea Denning
Several earlier posts addressed the requirement that a person arrested for an implied consent offense be informed of statutory implied consent rights before being asked to submit to a chemical analysis. Subsequent posts addressed the remedy for failure to adhere to these statutory requirements.
None of those posts, and indeed no North Carolina appellate court decision, addresses the circumstance in which a chemical analyst advises a defendant of the implied consent rights by reading them and providing a copy in writing, but the oral advice and the writing are in English, a language the defendant does not speak or comprehend.
If such a defendant submits to a chemical analysis, are the results subject to suppression at trial? What if the defendant refuses? Is the refusal admissible at trial as evidence of the defendant’s guilt?
G.S. 20-16.2 does not require that notice of implied consent rights be provided in any particular language, though the practice is to read the rights in English and provide a copy of the rights written in English. Perhaps the inquiry ends there, at least for determining whether results of a chemical analysis are admissible at trial. The argument in support of this view is that notice provided in English is provided in accordance with the statute; thus, there is no basis for suppression. This view is supported by the purpose of the warnings, which is “to provide scientific evidence of intoxication not only for the purpose of convicting the guilty and removing them from the public highways for the safety of others, but also to protect the innocent by eliminating mistakes from objective observation such as a driver who has the odor of alcohol on his breath when in fact his consumption is little or those who appear to be intoxicated but actually suffer from some unrelated cause.” Seders v. Powell, 298 N.C. 543, 552 (1979). The warnings “ensure cooperation in providing scientific evidence and avoid incidents of violence in testing by force.” Id.
Since notice is provided to secure submission to a chemical analysis rather than to procure a knowing, voluntary and intelligent waiver of rights, the statutory purposes are met when the person submits to testing, regardless of whether the person knew of the right to refuse testing. See Yokoyama v. Commissioner of Public Safety, 356 N.W.2d 830, 831 (Minn. App. 1984) (rejecting the argument of a petitioner who “willingly blew into the testing machine” that he had a statutory right to have the implied consent advisory read to him in Japanese and finding that he “understood he was being asked to take the test,” which was the only understanding required). Adherents of the view that informing a defendant of the rights in English is sufficient, regardless of the person’s subjective understanding, might further conclude that such a person can refuse testing by exhibiting a positive intention to disobey the chemical analyst’s instructions, regardless of whether the person understands the consequences of that conduct. See Martinez v. Peterson, 322 N.W.2d 386, 388 (Neb. 1982) (holding that person is required to understand only that he or she has been asked to take a test and that “[t]here is no defense to refusal that [the person] does not understand the consequences of refusal or is not able to make a reasonable judgment as to what course of action to take”).
Assuming, for now, that the arguments set forth above reflect how a North Carolina court would analyze the admissibility of a chemical analysis or evidence of refusal in a criminal trial on impaired driving charges, let’s progress to the more complicated question. May a person who does not speak the language in which the notice of implied consent rights is provided be deemed to have willfully refused a chemical test?
Recall that a willful refusal occurs when a person (1) is aware that he or she has a choice to submit to or refuse a chemical analysis, (2) is aware of the time limit within which he or she must submit, and (3) voluntarily elects not to submit or knowingly permits the prescribed thirty minute time limit to expire before electing to submit. Etheridge v. Peters, 301 N.C. 76, 81 (1980). What does it mean for a person to be “aware” of the choice and time limit? Given that there must be probable cause to believe that a person has committed an implied consent offense—many of which require proof of impairment— before a person may be requested to submit to such a test, the legislature must have anticipated that some defendants’ abilities to understand the warnings would be compromised by their present condition. Presumably, the legislature did not intend for the very defendants whose behavior is targeted by the law to escape the sanction of a twelve-month license revocation for willfully refusing a chemical analysis.
Indeed, the state supreme court in Joyner v. Garrett, 279 N.C. 226 (1971), rejected the defendant’s contention that he was too drunk to have willfully refused the breath test, finding the officer’s testimony that defendant refused to submit saying “‘he was a taxpayer and he didn’t have to take it’” sufficient evidence of willful refusal. The officer’s testimony that he did not know whether the defendant understood what he told him did not figure in the court’s analysis. Likewise, in Rice v. Peters, 48 N.C. App. 697 (1980), the court of appeals rejected the defendant’s argument that he had not willfully refused a breath test when he refused to cooperate by speaking in “a loud and boisterous manner drowning out [the chemical analyst’s] words” and making no response when the chemical analyst said he was being marked as a refusal, notwithstanding the defendant’s assertion at the time the rights were read that he did not understand them. Explaining that the purpose of the implied-consent testing statute is fulfilled when a person is given the opportunity to submit or refuse to submit to a chemical analysis and his decision is made after having been advised of his rights in a manner provided by statute, the court held that the defendant had willfully refused by refusing to cooperate. The court did not inquire into the defendant’s subjective understanding of his rights. Thus, it would be a departure from precedent to conclude that subjective understanding of the warnings on the part of the defendant is required; moreover, such an interpretation would absurdly afford relief to the obstreperous or highly intoxicated defendant, a result the legislature surely did not intend.
If subjective understanding is not relevant and G.S. 20-16.2 does not require that implied consent rights be conveyed to a defendant in a language that he or she understands, then the matter of willful refusal isn’t any more complicated than that of refusal, discussed earlier in this post. See, e.g., People v. Wegielnik, 605 N.E.2d 487, 491 (Ill. 1992) (finding “no meaningful distinction between a motorist who cannot comprehend the statutory warnings because of injury or intoxication, and one who does not understand them due to insufficient English language skills.”). Yet I wonder whether our courts would view lack of understanding resulting from a language barrier differently from lack of understanding caused by intoxication or belligerence. See, e.g., People v. Garcia-Cepero, 2008 WL 4681928 (N.Y. Sup. Ct. October 23, 2008) (distinguishing case of a defendant who does not speak or understand English from that of a person too intoxicated to understand implied consent warnings). Moreover, might our courts find a constitutional violation in the failure to afford non-English speaking defendants notice of implied consent rights? Part II of this Post will explore these issues.
Apr 16, 2012 | DUI & DWI, Uncategorized
This recent SC Court of Appeals case will be considered a major change in SC DUI law. However, it really is not. “Miranda warnings” are widely known by the public thanks to television shows and movies showing arrests of criminal defendants. The actual case has been around for decades. No one is really certain from where this “fifth Miranda warning” originated, but the right to terminate police interogation by asking for a lawyer has never been expressly a part of Miranda. Rather, it is largely incorporated into the first “Miranda” right to remain silent. Nevertheless, the Court of Appeals has now formally clarified this apparent confusion and resolved the issue. If this case is pursued to the SC Supreme Court, there is little doubt this decision will be affirmed.
The criminal attorneys at Reeves, Aiken & Hightower, LLP, focus their practice on SC DUI and NC DWI. In addition to the years of criminal and civil case experience, the firm also highlights Tyler Burns who is a former Sixteenth Circuit (York County) DUI prosecutor. Mr. Burns now takes his prosecutor’s evaluation of cases to defend those individuals who have been charged with a DUI or DUAC. Our firm encourages potential clients to carefully compare our lawyers’ credentials to any other law practice. Then call us today at 877-374-5999 for a private consultation. For more information, please visit our website at www.rjrlaw.com.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Appellant,
v.
Mark Allen Hoyle, Respondent.
Appeal From York County
John C. Hayes, III, Circuit Court Judge
Opinion No. 4963
Heard March 19, 2012 – Filed April 4, 2012
REVERSED
Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General William M. Blitch, Jr., all of Columbia; and Solicitor Kevin Brackett, of York, for Appellant.
John M. Foster, of Rock Hill, for Respondent.
PIEPER, J.: This appeal arises out of Appellant Mark Allen Hoyle’s magistrate’s court conviction for driving under the influence (DUI). The circuit court found the magistrate erred by failing to suppress the incident site video recording due to incomplete Miranda[1] warnings; consequently, the circuit court remanded the case to the magistrate’s court for a new trial. On appeal, the State argues the circuit court erred in ordering the suppression of the video recording because the arresting officer gave Hoyle sufficient Miranda warnings in compliance with section 56-5-2953 of the South Carolina Code (Supp. 2011). We reverse.
FACTS
On March 21, 2009, Hoyle was charged with DUI. Upon his arrest, the officer advised Hoyle of the following: (1) he had the right to remain silent; (2) anything he said could be used against him in a court of law; (3) he had the right to an attorney; and (4) if he could not afford an attorney, one would be appointed for him prior to questioning. The officer did not advise Hoyle that he had the right to terminate the interrogation at any time and to not answer any further questions. Hoyle was convicted of DUI. Hoyle appealed his conviction, arguing the magistrate’s court erred in refusing to dismiss the charge, or in the alternative, erred in failing to suppress certain evidence, because (1) he was not fully advised of his Miranda rights and (2) certain audio portions of the sequence of events were missing.[2] At the hearing before the circuit court, Hoyle relied on State v. Kennedy, 325 S.C. 295, 479 S.E.2d 838 (Ct. App. 1996), and argued the incident site video recording should be suppressed because it did not contain the officer instructing Hoyle of the Miranda warning that a suspect has the “right to terminate the interrogation at any time and not to answer any further questions.” The circuit court agreed, remanded for a new trial, and ordered the incident site video recording be suppressed. This appeal followed.
STANDARD OF REVIEW
In a criminal appeal from the magistrate’s court, the circuit court does not review the matter de novo; rather, the court reviews the case for preserved errors raised by appropriate exception. Town of Mt. Pleasant v. Roberts, 393 S.C. 332, 341, 713 S.E.2d 278, 282 (2011). The circuit court “may either confirm the sentence appealed from, reverse or modify it, or grant a new trial.” S.C. Code Ann. § 18-3-70 (Supp. 2011). “The appellate court’s review in criminal cases is limited to correcting the order of the circuit court for errors of law.” State v. Johnson, 396 S.C. 182, 186, 720 S.E.2d 516, 518 (Ct. App. 2011).
LAW/ANALYSIS
The State argues the circuit court erred in suppressing the incident site video recording and remanding for a new trial because Hoyle was given appropriate Miranda warnings in compliance with section 56-5-2953. We agree.
“‘All rules of statutory construction are subservient to the one that the legislative intent must prevail if it can be reasonably discovered in the language used, and that language must be construed in the light of the intended purpose of the statute.'” State v. Sweat, 386 S.C. 339, 350, 688 S.E.2d 569, 575 (2010) (quoting Broadhurst v. City of Myrtle Beach Election Comm’n, 342 S.C. 373, 380, 537 S.E.2d 543, 546 (2000)). The court should look to the plain language of the statute. Binney v. State, 384 S.C. 539, 544, 683 S.E.2d 478, 480 (2009). If the language of a statute is unambiguous and conveys a clear and definite meaning, then the rules of statutory interpretation are not needed and the court has no right to impose a different meaning. State v. Gaines, 380 S.C. 23, 33, 667 S.E.2d 728, 733 (2008).
The applicable provisions of the statute in question follow:
(A) 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 video recorded.
(1)(a) The video recording at the incident site must:
(i) not begin later than the activation of the officer’s blue lights;
(ii) include any field sobriety tests administered; and
(iii) include the arrest of a person for a violation of Section 56-5-2930 or Section 56-5-2933, or a probable cause determination in that the person violated Section 56-5-2945, and show the person being advised of his Miranda rights.
S.C. Code Ann. § 56-5-2953(A)(1)(a) (Supp. 2011).
To give force to the Constitution’s protection against compelled self-incrimination, the United States Supreme Court established in Miranda “certain procedural safeguards that require police to advise criminal suspects of their rights under the Fifth and Fourteenth Amendments before commencing custodial interrogation.” Duckworth v. Eagan, 492 U.S. 195, 201 (1989). The Miranda court held that a suspect in custody must be warned of the following rights:
He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.
384 U.S. at 479.
The court also explained that “[o]nce warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” Id. at 473-74. Furthermore, if the suspect decides, after receiving the Miranda warnings, that he wishes to remain silent, the custodial officers must “scrupulously honor[]” his “right to cut off questioning.” Michigan v. Mosley, 423 U.S. 96, 104 (1975).
In State v. Kennedy, this court cited Miranda, stating:
A suspect in custody may not be subjected to interrogation unless he is informed that: he has the right to remain silent; anything he says can be used against him in a court of law; he has a right to the presence of an attorney; if he cannot afford an attorney, one will be appointed for him prior to any questioning, if he so desires; and he has the right to terminate the interrogation at any time and not to answer any further questions.
325 S.C. 295, 303, 479 S.E.2d 838, 842 (Ct. App. 1996), aff’d as modified, 333 S.C. 426, 510 S.E.2d 714 (1998).
The issue in Kennedy was whether the defendant voluntarily waived his Miranda rights. Id. at 306, 479 S.E.2d at 844. The court did not discuss the sufficiency of the warnings given, and the court did not discuss whether the officer informed the defendant of his right to terminate the interrogation. Id. at 306-09, 479 S.E.2d at 844-46. On the other hand, in State v. Cannon, police gave the defendant the following Miranda warning:
You have the right to remain silent; anything you say can and will be used against you in a court of law; you have the right to talk to a lawyer and have him present with you while you are being questioned; if you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish one.
260 S.C. 537, 542-43, 197 S.E.2d 678, 680 (1973), cert. denied, 414 U.S. 1067 (1973). The defendant appealed, arguing the warnings were insufficient and should have included the following language: “If you decide to answer any questions now without a lawyer present, you will still have the right to stop answering at any time or until you talk to a lawyer.” Id. at 543, 197 S.E.2d at 680. The South Carolina Supreme Court disagreed and found that Miranda does not require an officer to inform a suspect of his right to stop answering questions at any time. Id.
The language in Miranda is clear that the right to terminate the interrogation at any time and to not answer any further questions is not a required Miranda warning. Miranda only requires four warnings, and the United States Supreme Court did not include the right to terminate the interrogation at any time as one of the four warnings. See Miranda, 384 U.S. at 479 (holding a suspect in custody must be warned prior to any questioning that “he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires”). Furthermore, pursuant to Miranda, the right to terminate an interrogation arises after warnings are given. See id. at 473-74 (“Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.”).
Recent United States Supreme Court decisions interpreting Miranda also recognize Miranda includes four rights. See Berghuis v. Thompkins, 130 S. Ct. 2250, 2259 (2010) (quoting Miranda for the proposition that a suspect “must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires” (internal quotation marks omitted)); Florida v. Powell, 130 S. Ct. 1195, 1204 (2010) (noting that “[t]he four warningsMiranda requires are invariable, but this Court has not dictated the words in which the essential information must be conveyed”).
Our interpretation of Miranda and Cannon is also consistent with other jurisdictions that have considered the issue and determined that under Miranda an officer is not required to inform a suspect of a right to stop questioning after it has begun. See United States v. Lares-Valdez, 939 F.2d 688, 690 (9th Cir. 1991) (finding that the Miranda court contemplated the right to cease questioning and declined to include it among the warnings necessary to protect a suspect’s Fifth and Sixth Amendment rights); Mock v. Rose, 472 F.2d 619, 622 (6th Cir. 1972) (holding Miranda warnings do not include the right to stop answering questions at any time); Flannagin v. State, 266 So. 2d 643, 651 (Ala. 1972) (holding an officer is not required under Miranda to inform a suspect that he has the right to stop questioning at any time because “[t]he right of an accused to exercise [the four Miranda] rights at any time during the proceeding is not a separate right of which he must be independently informed. It is, instead, the practical result of his exercising those other rights at a time of his choosing”); Katzensky v. State, 183 S.E.2d 749, 751 (Ga. 1971) (“Miranda does not require the officers to advise the individual that he may withdraw the waiver of his constitutional rights at any time during the interrogation.”).
For the bench, bar, and law enforcement, we recognize a need may exist to clarify any perceived confusion about the reach of Kennedy.[3] Regarding the language at issue herein, we interpret that part of Kennedy as being dicta.[4] Moreover, even if we were to interpret the reach of Kennedy otherwise, the South Carolina Supreme Court’s opinion in Cannon serves as the controlling precedent for purposes of our review. While one panel of this court cannot overturn prior published precedent of another panel of this court absent en banc review, we need not do so in order to apply controlling South Carolina Supreme Court precedent. Based on the foregoing, we find that the South Carolina Supreme Court does not interpret Miranda to require an oral or written warning on the right to terminate an interrogation at any time and to not answer any further questions.[5]
A review of the incident site video recording indicates the officer gave Hoyle all four warnings required by Miranda; thus, the officer fully complied with both Miranda and section 56-5-2953. See S.C. Code Ann. § 56-5-2953(A)(1)(a)(iii) (Supp. 2011) (“The video recording at the incident site must . . . show the person being advised of his Miranda rights.”). Therefore, we reverse the circuit court’s order and reinstate the conviction.
CONCLUSION
Accordingly, the order of the circuit court is hereby
REVERSED.
KONDUROS and GEATHERS, JJ., concur.
[1] Miranda v. Arizona, 384 U.S. 436 (1966).
[2] To the extent this second issue was independent of the Miranda issue, that issue was neither ruled on by the circuit court, nor argued on appeal to this court. In fact, Hoyle clarified his argument before the circuit court in stating “the only question I submit to this court that they have to decide, that you have to decide, Your Honor, is whether [Hoyle is] entitled to dismissal or a remand for further proceedings for suppression of evidence for deficient Miranda.”
[3] See Op. S.C. Att’y Gen., 2009 WL 1968618 (June 4, 2009) (responding to an inquiry by the South Carolina Sheriffs’ Association as to whether Kennedy affords a fifth right that must be included in a Miranda warning).
[4] Notably, subsequent opinions from this court have cited Kennedy when stating the rule on Miranda warnings; however, no case cites the language in Kennedy that an officer must inform a suspect of the right to terminate the interrogation at any time and to not answer any further questions. See State v. Breeze, 379 S.C. 538, 544, 665 S.E.2d 247, 250 (Ct. App. 2008); State v. Lynch, 375 S.C. 628, 633 n.5, 654 S.E.2d 292, 295 n.5 (Ct. App. 2007).
[5] Hoyle asserted various policy arguments in support of expanded warnings in South Carolina; however, we reject those arguments.
Mar 31, 2012 | DUI & DWI, Uncategorized
Here is another story about yet another new DUI bill being considered to harshen SC DUI laws even further. As a SC DUI attorney, I see clients weekly who have been wrongfully charged with DUI after merely having a drink at dinner or a beer with a friend. They are perfectly fine to drive. No accident occurs. No one is injured. Yet, they are arrested and jailed overnight for having alcohol on their breath. Next, if they dare to exercise their 5th Amendment right to not incriminate themselves and refuse the breathalyzer, they are immediately suspended from driving. They also face the permanent stigma of being a “drunk driver” and could even lose their job given the current hysteria about DUI. Even if the criminal charges are ultimately defeated, the driving suspension still applies. If convicted, the price of a first time DUI without accident or injury approaches nearly $10,000. You have fines, ADSAP costs, SR-22 insurance for 3 years. The legislature just “killed the moped exception” which will only make it even more difficult for people to get to their jobs after a DUI. And now, there is a bill to add an “ignition interlock” device to cars and further increase the overall costs to families. Seriously, this constant drumbeat of punative DUI legislation needs to stop. We realize it is fashionable to be “hard on DUI” in political circles. While these well intentioned bills do little to lower DUI rates, the real effect is to place significant added expenses onto already struggling families. A little temperment will be much more effective. People who drive drunk and cause accidents and injury should be punished, and harshly. However, let’s not “throw the baby out with the bath water” and ruin those individuals who, at worst, make a questionable error in judgment while out with their spouses and/or friends.
At Reeves, Aiken & Hightower LLP, our seasoned attorneys have over 70 years of combined trial experience in both civil and criminal courts. We focus our criminal practice on DUI and DWI cases in both South Carolina and North Carolina and are available by mobile phone in the evenings, on weekends, and even holidays. Our lawyers are licensed in both states and are aggressive criminal trial attorneys. We are not afraid to go to Court and often do. Don’t settle for a lawyer who only wants to reduce your DUI charges to reckless driving. We welcome the opportunity to sit down and personally discuss your case. Compare our attorneys’ credentials to any other firm. Then call us today at 803-548-4444 or 877-374-5999 for a private consultation. Or visit our firm’s website at www.rjrlaw.com.
Bill Would Require Ignition Interlocks for First Offense DUIs in SC
Ignition Interlock Device
By: Robert Kittle | WSAV News 3
Published: February 01, 2012
COLUMBIA, S.C. –South Carolina already requires drivers guilty of a second drunken driving offense to put ignition interlock devices on their cars. A driver has to blow into the machine to start the car, but if the ignition interlock detects an illegal alcohol level, the car won’t start.Sen. Joel Lourie, D-Columbia, wrote that law. Now, he’s sponsoring a bill that would require ignition interlocks after a first offense DUI.”By the time they’ve committed their second offense, they’ve hurt somebody,” he says. “So what we want to do is if you get a DUI conviction in South Carolina, we’re going to make you put an ignition interlock on your car and we’re going to monitor it and make sure you do what you’re supposed to do.”A state Senate subcommittee heard testimony in support of the bill Wednesday, but senators did not take a vote. They’re planning further debate next week and possible amendments. One possible change would be to also require ignition interlocks for anyone who refuses to take a breathalyzer test after being stopped on suspicion of DUI. Sen. Lourie expects the bill to be on the full Senate floor by the end of the month.Jeff Moore, executive director of the South Carolina Sheriffs’ Association, says he thinks the bill would save lives.”There are only two ways to stop the repeat offender from repeating, and that is either to put them in jail for a lengthy period of time and simply take their ability to drive away from them, or you put a device like this on their vehicle after the first charge is made,” he says.According to Mothers Against Drunk Driving, 15 states require ignition interlocks after the first offense. (Alaska, Arizona, Arkansas, Colorado, Connecticut, Hawaii, Illinois, Louisiana, Kansas, Nebraska, New Mexico, New York, Oregon, Utah and Washington.) MADD says repeat DUIs are down an average of 67 percent in those states.And while Lourie says the bill would save lives, it also wouldn’t cost taxpayers any money. The offenders would have to pay to have the ignition interlocks installed on their vehicles.
