Mar 1, 2012 | DUI & DWI, Uncategorized
In a classic case of the “tail wagging the dog,” two state prosecutors claim that DUI laws in South Carolina are apparently too easy to beat. They assert that “strict interpretation” of the law is to blame for losing otherwise “slam dunk” drunk driving cases. Take pause. Let that thought sink in. Judges are being maligned for enforcing the law. How about better training for police? How about more selective arrests and prosecutions? How can anyone seriously argue that video evidence laws should be rewritten. The current rules are fairly straightforward. Turn on the camera. Make sure it is working. Read Miranda warnings in front of the lens. These legal requirements really do not seem too demanding or draconian. Afterall, video evidence protects everyone – criminal suspects as well as the police. It keeps both sides “honest.” Juries no longer have to take anybody’s “word.” Rather, they can watch for themselves. The law is fine. It is both reasonable and fair. Police and prosecutors should focus on following the law instead of blaming their own system.
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 for a private consultation. www.rjrlaw.com.
Here is the written transcript of the recent interview at issue regarding the prosecution of drunk driving. The title of the news story, aired on WSPA-TV Channel 7, was “DUI roadblocks: Are Loopholes in the Law allowing drunk drivers to walk?” Only wish there was video.
SPARTANBURG, S.C. –
Two top prosecutors in the Upstate say South Carolina’s DUI law has failed miserably in its only purpose: to deter drunk driving and keep you and your loved ones safe on the highway.
They say, more than ever, those arrested for the crime are later walking out of courtrooms with the charge either dropped or reduced to a lesser offense. They say conviction rates have plummeted alarmingly in the four years since legislators re-wrote sections of the state’s DUI law to ostensibly make it stronger by increasing penalties.
According to numbers provided by the South Carolina Chief Justice’s Office, during an 8-month period from November 21, 2010 to July 21, 2011, only 46% of DUI cases that went to court actually resulted in convictions for that charge.
The Solicitors for the two largest circuits in the Upstate say there is one part of every DUI arrest that has made convictions harder than ever to come by: the videotape.
“The videotape, which is the most powerful piece of evidence we have, is being suppressed or the case is being dismissed because it was done incorrectly or in violation of the statute,” says Walt Wilkins, 13th Circuit Solicitor for Greenville and Pickens Counties.
He says when lawmakers revised the DUI law in 2008 to strengthen punishment, they also made it much more difficult for videotapes of arrests to be seen by juries.
“Before 2009, to suppress a video, the defense had to prove that the video was prejudiced to the suspect, which is difficult to prove,” says Wilkins. “But now, videos must strictly follow the videotaping section of the law to be introduced to a jury.”
He says, because of that strict interpretation, cases that were slam-dunk convictions prior to 2009 are now being thrown out by judges – often because of what’s not on tape. He showed us several examples, including the arrest of a driver who already had 5 pending DUI charges. During the field sobriety test, the driver could not stand on one leg and could not walk heel-to-toe. But in trying to walk heel-to-toe, he kept walking and walked out of view of the camera. This proved to be his saving grace. The judge dismissed the case because, as the law calls for, the entirefield sobriety test was not on video. Wilkins says that’s preposterous considering that arresting officers don’t have a second officer operating the camera so that it can be moved if a suspect should walk off screen. (Video cameras are stationary, fixed on the interior of the patrol car’s windshield.)
“Officers in the field have no way of knowing exactly what is in the field of view of their camera,” says Wilkins. “We often kid that you need a degree from Hollywood to make a good DUI case here in South Carolina.”
Wilkins shared another video that showed a car on I-385, weaving onto the shoulder several times. After pulling over and getting out of the car, the driver admitted to the deputy that he had drank six beers. The man could not follow the deputy’s instructions as he tried to perform the “eye track” test. Then, as he tried to stand with one foot in front of the other for the heel-toe walk, he could not do so without losing his balance. He finally conceded that he could not do the test and told the deputy to arrest him.
The case was perfect – except for one thing: by law, after a suspect is brought to the local detention center to perform the breathalyzer test, the officer must wait 20 minutes before offering the test. During this time, the suspect is to be videotaped as he sits in a holding cell.
“If you videotape him for 19 minutes and 40 seconds, then your case is dismissed; you’re in violation of the statute,” says Wilkins.
In this case, Wilkins says the suspect told the officer up front that he was not going to take a breathalyzer, so the officer did not record the 20-minute waiting period. This prompted the judge to dismiss the case. Wilkins says he has more than 200 similar cases pending.
Wilkins’ counterpart in Spartanburg shares his frustration. In 2007, Barry Barnette was named DUI Prosecutor of the Year by the Department of Public Safety, but last year his conviction rate fell to 44 percent. He says the state’s DUI law is not keeping the public safe.
“It’s a situation now where there’s cases being dismissed that should be going forward,” says Barnette. “It’s creating a dangerous scenario where we do not deter people from getting behind the wheel drunk because they know they have a good chance of not getting convicted.”
He showed Seven On Your Side video of one example where the driver had hit another vehicle in a parking lot. The driver appears to be so intoxicated, he can’t even stand still in front of the trooper. But the driver got the charge dropped because the trooper didn’t read him his miranda rights in front of the camera. On the video, you can hear the trooper reading the suspect his rights off camera. But the court says audio isn’t good enough.
Barnette and Wilkins call these examples of “loopholes” in the law and they say someone is exploiting them all the way to the bank.
“The DUI business is big in South Carolina right now. It’s a very lucrative business for attorneys,” says Wilkins.
Brad Hutto is regarded as one of the best DUI defense attorneys in the state. He’s also the state senator who chaired the judiciary subcommittee that re-wrote the DUI law in 2008. And he says he doesn’t see a problem with a system that allows those who profit from the enforcement of a law to be the ones in charge of re-writing that law.
“No more than I see any conflict with people who pay taxes writing tax laws,” says Hutto. “I mean, we all have our own lives, and we all do things in those lives, some that give us insight maybe more specifically than others, but, no, there are some things are clearly conflicts of interest. This is not one of them.”
He says the DUI law is protecting the public and he doesn’t believe the videotaping issues are nearly as common as prosecutors would like us to believe.
“I’m not going to tell you there’s not an isolated case here or there, but I would tell you that’s exactly what it is: an isolated case,” says Hutto.
Ronnie Cole is an Anderson attorney who literally wrote the book on how to beat traffic cases in South Carolina. He was also one of several lawyers who testified before Hutto’s committee in 2008, as the committee sought input from those who could offer insight on how changes to the law would affect the system. Cole says if DUI convictions are down, the problem isn’t the way the law is written but rather how officers are carrying it out.
“How hard is it to point a camera at someone and hit the record button?” says Cole. “Officers have an 8-hour training course that teaches them how to do that. If they aren’t doing it in these cases, then Barry (Barnette) and Walt (Wilkins) should just send out a memo and say ‘hey, stop doing things this way’. That would be a simple fix right there.”
He said in the example where the suspect walked off camera, the officer should have had him walking toward the front of the patrol car, directly toward the camera, instead of having him walk across the camera’s field of view.
“The cases that a lot of prosecutors gripe about is the cases where that officer has made a very poor case, for whatever reason,” says Cole.
Wilkins says officers cannot be expected to “mark every little box on the videotaping checklist” during every traffic stop when they are often dealing with adverse conditions or potentially dangerous suspects.
“That puts, in my opinion, an undue burden on law enforcement to make the perfect DUI case when they’re out there in real life, real live world situations trying to keep people off the streets who are intoxicated and save lives,” says Wilkins.
Wilkins and Barnette say they would like to see changes to the law so that prosecutors aren’t penalized for “technicalities”. Barnette has written some suggested revisions to the law that would make several changes to the videotaping section, including: allowing just audio of the mirandization process to be legally sufficient, striking the mandatory recording of the 20-minute observation period, and preventing a suspect’s actions (like waking off camera) from being sufficient grounds for dismissal of a video. State Representatives Eddie Tallon and Derham Cole, Junior, say they will co-sponsor a bill to make Barnette’s suggested revisions law.
Hutto says he does not believe “loopholes” exist in the law and does not believe these problems are as prevalent as prosecutors say they are, but he says he would consider revising the law if the solicitors present a compelling argument to do so.
“Nobody wants the law to not be properly administered,” said Hutto. “The intention in the videotaping law was not to create loopholes. The intention really was to create a tool for prosecution of these cases.”
According to Mothers Against Drunk Driving, the Palmetto State has the nation’s highest percentage of fatal crashes caused by intoxicated drivers. In comparison to our neighbors, North Carolina ranks 29th and Georgia is 44th (out of 50 states and the District of Columbia) in 2010, the most recent year of available data.
Feb 29, 2012 | Car Accidents, DUI & DWI, News, Personal Injury, Uncategorized, Workers' Compensation
Celebrating our firm’s 100th blog, the attorneys of Reeves, Aiken & Hightower, LLP, want to announce the official opening of its office in Lake Wylie, South Carolina.
From our location in the Lake Wylie Business Centre, we can now serve our clients from Lake Wylie, Clover, York, and Gastonia. The office is located beside the Bi-Lo shopping center and behind the BB&T Bank and new Auto Bell carwash off Highway 55.
Our attorneys look forward to taking care of families whose members have been victims of personal injury through no fault of their own. Whether hurt on the job or on the road, we are here to help you get through some of the most difficult times of your life. We will be there for you and beside you every step of the way.
Our firm handles all personal injury cases, including automobile accidents, large truck accidents, motorcycle accidents, boating accidents, pedestrian accidents, injuries to children, workers’ compensation cases, head injury, brain injury, nursing home abuse or neglect cases, and wrongful death. Our criminal practice includes DUI and DWI, drug charges, criminal domestic violence, and probation violations.
Our lawyers are seasoned trial attorneys with over 70 years combined litigation experience. They have varied backgrounds including former insurance defense lawyers, former prosecutor, former public defender, former Registered Nurse (RN), and former District Attorney’s office intern. Two of our founding partners are inducted lifetime members of the Million Dollar Advocates Forum. Another partner was just named one of the top 100 lawyers by the National Trial Lawyers for SC in 2012.
We invite you to compare our attorneys’ credentials to any other law firm. Then call us for a private consultation. We welcome an opportunity to sit down and personally review your injury or criminal case. Call us today at 803-554-4157 and please visit our website for more information at www.rjrlaw.com.
Feb 29, 2012 | DUI & DWI, Uncategorized
The article below from WBTV showcases the “6th Annual DUI Enforcement Recognition Ceremony” honoring those police officers throughout the State of South Carolina with the highest DUI “arrests” (not convictions) in 2010. While everyone certainly “applauds” getting truly “drunk drivers” off the road, this “ceremony” demonstrates the borderline obsession police agencies have with making DUI arrests, seemingly no matter what. And this was the 6th year celebrating the current public infatuation with DUI. In the seventies, marijuana possession and arrests were all the rage. In the eighties, it was cocaine. In the nineties, it was crack cocaine. Now, in our politically correct enviroment, no one is supposed to have a drink with dinner or a beer with a friend. Because of the clear financial incentive for police departments (federal grants) and personal incentives for individual officers (promotions), anyone stopped for a traffic violation who smells of alcohol is going to be arrested, handcuffed, and charged with DUI, no matter what they say or do at that point. If they attempt to perform field sobriety tests, they will invariably “fail” and be put in the back of the patrol car. If they exercise their 5th Amendment right to not incriminate themselves, they will be taken to jail. You get the idea here. Arrests are fairly easy. Convictions are a totally different matter. Better make sure your attorney understands the difference and will fight aggressively to win your case in court.
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 for a private consultation. www.rjrlaw.com.
Officers, agencies honored for DUI enforcement efforts
Submitted by Jeff Rivenbark
Wednesday, March 23rd, 2011
COLUMBIA – Law enforcement officers and agencies were recognized Wednesday for their efforts in 2010 to enforce the state’s DUI laws and remove impaired drivers from South Carolina roadways.
The SC Department of Public Safety (SCDPS) presented awards to officers and agencies in several categories during its 6th Annual DUI Enforcement Recognition Ceremony. SC State Attorney General Alan Wilson was the keynote speaker.
During the ceremony, SCDPS Director Mark Keel praised the efforts of law enforcement officers statewide. “Highway Patrol, State Transport Police and our local law enforcement partner agencies do a fantastic job enforcing the traffic laws of our state. But when we all work together and combine our efforts, the good that we do is multiplied. It means more drunk drivers are off our roads and behind bars. It means more people are educated about the effects of DUI. Most importantly, it means more lives are saved. That should be applauded.”
Following is a complete list of winners:
Officer of the Year (five categories based on size of agency):
- 1-10 officers: Officer Bill Bruner, Chapin Police Department, 22 DUI arrests
- 11-25 officers: Officer Chris Kendall, Travelers Rest Police Department, 55 DUI arrests
- 26-50 officers: Officer Charles Carnes, Hanahan Police Department, 92 DUI arrests
- 51-100 officers: Officer Jason T. Pearce, North Augusta Department of Public Safety, 87 DUI arrests
- 101 or more officers: Deputy Jason Kramer, Spartanburg County Sheriff’s Office, 135 DUI arrests
Rookie of the Year:
- Deputy Jacob Will, Dorchester County Sheriff’s Office, 7 DUI arrests
Highway Patrol Trooper of the Year:
- Lance Corporal Jeffery L. Fortner, Troop 3 (Post D, Spartanburg), 107 DUI arrests
Highway Patrol Troop of the Year:
- Troop 5 (Darlington, Dillon, Florence, Georgetown, Horry, Marion, Marlboro, and Williamsburg counties), 4,436 DUI arrests
State Transport Police District of the Year:
- District 3 (Anderson, Greenville, Oconee, Pickens and Spartanburg counties)
South Carolina Law Enforcement Network Award:
- 15th Circuit Law Enforcement Network, (Georgetown and Horry counties)
Agency of the Year (five categories based on size of agency):
- 1-10 officers: Bonneau Police Department, 36 DUI arrests
- 11-25 officers: Travelers Rest Police Department, 125 DUI arrests
- 26-50 officers: Mauldin Police Department, 186 DUI arrests
- 51-100 officers: Aiken Department of Public Safety, 234 DUI arrests
- 101 or more officers: Mount Pleasant Police Department, 437 DUI arrests
In addition, the following nominated officers received DUI Hero pins in bronze, silver or gold to honor their DUI arrest accomplishments in 2010.
The Bronze category for 10 to 24 DUI arrests:
- Officer Matthew L. Bramlett, Aiken Department of Public Safety
- Officer Aaron I. Dobbs, Aiken Department of Public Safety
- Officer George Gymer, Aiken Department of Public Safety
- Officer Benjamin Harm, Aiken Department of Public Safety
- Officer Scott Richardson, Aiken Department of Public Safety
- Officer Daymon L. Spann, Aiken Department of Public Safety
- Lance Corporal George Rioux, Beaufort County Sheriff’s Office
- Sergeant Timothy Slupski, Beaufort County Sheriff’s Office
- Chief Franco Fuda Bonneau, Police Department
- Corporal Ryan Snyder, Beaufort County Sheriff’s Office
- Corporal Justin Carabetta, Cayce Department of Public Safety
- Officer Katie Bradacs, Cayce Department of Public Safety
- Officer Maria Green, Cayce Department of Public Safety
- Officer Bill Bruner, Chapin Police Department
- Sergeant Josh Bower, Chapin Police Department
- Officer Troy Frick, Chapin Police Department
- Officer Mark Robinson, Chapin Police Department
- Corporal Louis Staggers, Charleston Police Department
- Officer Melanie Donald, Charleston Police Department
- Officer Adam Thayer, Charleston Police Department
- Officer Matt Wojslawowicz, Charleston Police Department
- Deputy Nathan Walker, Cherokee County Sheriff’s Office
- Deputy Ronnie Painter, Cherokee County Sheriff’s Office
- Officer Greg Taylor, Clemson Police Department
- Officer Jay Hogue, Clemson Police Department
- Officer Kevin Shaw, Clemson Police Department
- Sergeant Josh Caldwell, Clemson Police Department
- Officer Jeff Jordan, Conway Police Department
- Officer Jason Eden, Conway Police Department
- Officer Kendall Dixon, Conway Police Department
- Officer William Gaffey, Conway Police Department
- Sergeant Mike Cooke, Darlington City Police Department
- Officer Dan Romanyzyn, Darlington City Police Department
- Officer Javon Cauthen, Darlington City Police Department
- Officer Tiffany N. Britton, Hanahan Police Department
- Officer Frederick J. Durant, Hanahan Police Department
- Officer Chris McElman, Goose Creek Police Department
- Officer Thomas Lawson, Goose Creek Police Department
- Lieutenant Duane Rollings, Lancaster Police Department
- Sergeant Dale Johnson, Lancaster Police Department
- Officer Kenneth Warlick, Lancaster Police Department
- Officer Mike Lawler, Lexington Police Department
- Sergeant Sam Harrell, Mauldin Police Department
- Officer Richard Montalbano, Mauldin Police Department
- Officer Nicholas Andes, Mauldin Police Department
- Officer Daniel Turner, Mauldin Police Department
- Officer Nicolas Lebby, Mount Pleasant Police Department
- Officer Kirill Misyuchenko, Mount Pleasant Police Department
- Officer Mark Lamb, Mount Pleasant Police Department
- Officer Jason Brandon, Mount Pleasant Police Department
- Officer Jacqui Pastick, Mount Pleasant Police Department
- Officer William Decker, Mount Pleasant Police Department
- Officer Matt Tyler, Mount Pleasant Police Department
- Officer Dan Eckert, Mount Pleasant Police Department
- Officer Andrew Harris, Mount Pleasant Police Department
- Officer Elliott Anderson, Mount Pleasant Police Department
- Officer Eric Postell, Mount Pleasant Police Department
- Officer Ryland Reed, Myrtle Beach Police Department
- Officer Troy Spivey, Myrtle Beach Police Department
- Officer Pete Schmidt, Myrtle Beach Police Department
- Officer Michael Petrizzo, Myrtle Beach Police Department
- Officer Nathan Howitt, Myrtle Beach Police Department
- Officer Wesley A. Youngblood, North Augusta Department of Public Safety
- Officer Robert Gooding, North Charleston Police Department
- Officer David King, North Myrtle Beach Dept. of Public Safety
- Officer Matthew Pasqurell, North Myrtle Beach Dept. of Public Safety
- Officer Kenneth Pifer, Orangeburg Department of Public Safety
- Officer Randall, Mullis Pageland Police Department
- Deputy Robert A. Porter, Pickens County Sheriff’s Office
- Deputy Charles Sullivan II, Richland County Sheriff’s Department
- Deputy Joseph R. Davis, Richland County Sheriff’s Department
- Officer Ray Hamilton, Rock Hill Police Department
- Officer Gerald Wayne Maury, Rock Hill Police Department
- Officer Tim Allen, Rock Hill Police Department
- Officer Ryan Thomas, Rock Hill Police Department
- Sergeant Jim Grayson, Rock Hill Police Department
- First Sergeant James Bradley, Spartanburg County Sheriff’s Office
- Officer Ryan Braga, Summerville Police Department
- Officer Jacob Valentine, Summerville Police Department
- Officer Marc Bailey, Summerville Police Department
- Officer Shari Driggers, Summerville Police Department
- Officer Kenneth Driscoll, Summerville Police Department
- Officer Daniel Tuck, Summerville Police Department
- Corporal Chris King, Surfside Beach Police Department
- Officer David Trilety, Surfside Beach Police Department
- Officer David Turbeville, Surfside Beach Police Department
- Deputy Ryan King, York County Sheriff’s Office
- Deputy John Riley, York County Sheriff’s Office
The Silver category for 25 to 49 DUI arrests:
- Corporal Chris K. Carter, Aiken Department of Public Safety
- Corporal Timothy Clarkson, Beaufort County Sheriff’s Office
- Corporal Adam Draisen, Beaufort County Sheriff’s Office
- Corporal J. Elrod, Berkeley County Sheriff’s Office
- Officer Kyle Ryan, Charleston Police Department
- Deputy Brian Mullinax, Cherokee County Sheriff’s Office
- Officer Justin Strickland, Conway Police Department
- Corporal Mike Intini, Dorchester Sheriff’s Office
- Officer Jared Skinner, Greenville County Sheriff’s Office
- Deputy Gene Clark, Greenville County Sheriff’s Office
- Deputy Jonathan Jackson, Greenville County Sheriff’s Office
- Deputy Will Richter, Greenville County Sheriff’s Office
- Deputy Matt Smith, Greenville County Sheriff’s Office
- Deputy John Phillips, Greenville County Sheriff’s Office
- Corporal Jimmy D. Mathis, Hanahan Police Department
- Corporal Josh Small, Lancaster Police Department
- Sergeant Jeremy Souter, Lexington Police Department
- Officer Grady Johnson, Jr. Lexington Police Department
- Officer Adam Lawrence, Mauldin Police Department
- Officer A. J. Santos, Mount Pleasant Police Department
- Officer Jason Smoak, Mount Pleasant Police Department
- Officer Shon McCluskey, Myrtle Beach Police Department
- Officer Joe West, Myrtle Beach Police Department
- Officer Daniel Preciado, Myrtle Beach Police Department
- Officer Louis A. Cook, North Augusta Department of Public Safety
- Corporal Paul Wise, Orangeburg Department of Public Safety
- Sergeant Nathan Brucke, Pageland Police Department
- Deputy Ryan J. Galinski, Richland County Sheriff’s Department
- Deputy David Vaughn, York County Sheriff’s Office
The Gold category for 50 or more DUI arrests:
- Corporal Alexis Eliopoulos, Beaufort County Sheriff’s Office
- Officer Travis Hovest, Anderson City Police Department
- Sergeant A. B. Ashe, Berkeley County Sheriff’s Office
- Sergeant L. Mizell, Berkeley County Sheriff’s Office
- Officer Josh Scott, Conway Police Department
- Officer Charles E. Carnes, Hanahan Police Department
- Lance Corporal Jack Johnson Jr., Horry County Police Department
- Officer David Terry, Mauldin Police Department
- Officer Joseph Zeitner, Mount Pleasant Police Department
- Officer Jason T. Pearce, North Augusta Department of Public Safety
- Officer Jonathan Lawrence, North Charleston Police Department
- Deputy James Donald Owens Jr., Richland County Sheriff’s Department
- Officer Jason Kramer, Spartanburg County Sheriff’s Office
- Corporal Kevin Price, Spartanburg County Sheriff’s Office
- Officer Phillip Chappell, Spartanburg County Sheriff’s Office
- Deputy Len Burgess, Spartanburg County Sheriff’s Office
- Officer Patrick Lavery, Travelers Rest Police Department
- Officer Chris Kendall, Travelers Rest Police Department
- Senior Trooper R. D. Martin, SC Highway Patrol, Troop 1 DUI Team
- Corporal G. D. Rothell, SC Highway Patrol Troop 1
- Trooper First Class A. L. Antley, SC Highway Patrol, Troop 1
- Senior Trooper Ryan Harp, SC Highway Patrol, Troop 1 DUI Team
- Corporal C. L. Herring, SC Highway Patrol Troop 1
- Lance Corporal W. O. Horton, SC Highway Patrol, Troop 1 DUI Team
- Lance Corporal E. M. Koty, SC Highway Patrol, Troop 1 DUI Team
- Senior Trooper J. T. Myers, SC Highway Patrol, Troop 1
- Lance Corporal M. R. Danbeck, SC Highway Patrol, Troop 1
- Senior Trooper Benji W. Humphries, SC Highway Patrol, Troop 2
- Lance Corporal Shawn D. Brookshire, SC Highway Patrol, Troop 2
- Senior Trooper B. S. Bryson, SC Highway Patrol, Troop 3
- Lance Corporal J. B. Cannon, SC Highway Patrol, Troop 3
- Lance Corporal J. L. Fortner, SC Highway Patrol,Troop 3
- Senior Trooper F. W. Marlow, SC Highway Patrol, Troop 3
- Lance Corporal D. C. May, SC Highway Patrol, Troop 3
- Senior Trooper R. K. Owens, SC Highway Patrol Troop 3
- Senior Trooper D. A. Rieser, SC Highway Patrol, Troop 3
- Trooper First Class S. M. Williams, SC Highway Patrol, Troop 3
- Senior Trooper R. A. Frock, SC Highway Patrol, Troop 4 DUI Team
- Lance Corporal J. L. McCloud, SC Highway Patrol, Troop 4 DUI Team
- Lance Corporal M. J. Shank, SC Highway Patrol, Troop 4
- Lance Corporal J. L. Godfrey, SC Highway Patrol, Troop 4 DUI Team
- Corporal M. Z. Hassen, SC Highway Patrol, Troop 4
- Lance Corporal J. W. Tate, SC Highway Patrol, Troop 4 DUI Team
- Senior Trooper C. D. Brigham, SC Highway Patrol, Troop 5 DUI Team
- Trooper First Class C. A. Brown, SC Highway Patrol, Troop 5
- Lance Corporal D. A. Dean, SC Highway Patrol, Troop 5
- Senior Trooper R. E. Denham, SC Highway Patrol, Troop 5
- Senior Trooper M. D. Dwyer, SC Highway Patrol, Troop 5
- Senior Trooper A. B. Fox, SC Highway Patrol, Troop 5 DUI Team
- Senior Trooper M. K. Frost, SC Highway Patrol, Troop 5
- Lance Corporal R. J. Gannon, SC Highway Patrol, Troop 5
- Trooper First Class M. L. Gosnell, SC Highway Patrol, Troop 5
- Senior Trooper C. E. Graham, SC Highway Patrol, Troop 5
- Senior Trooper W. A. Hardymon, SC Highway Patrol, Troop 5 DUI Team
- Senior Trooper J. T. Hicks, SC Highway Patrol, Troop 5
- Lance Corporal P. H. Hunt, SC Highway Patrol, Troop 5
- Senior Trooper J. B. King, SC Highway Patrol, Troop 5
- Senior Trooper M. M. McCants, SC Highway, Patrol Troop 5
- Trooper W. A. McInville, SC Highway Patrol, Troop 5
- Lance Corporal B. P. Norris, SC Highway Patrol, Troop 5
- Lance Corporal L. N. Poston, SC Highway Patrol, Troop 5
- Senior Trooper R. M. Salter, SC Highway Patrol, Troop 5
- Senior Trooper D. J. Sarvis, SC Highway Patrol, Troop 5
- Senior Trooper J. T. Sarvis, SC Highway Patrol, Troop 5
- Senior Trooper J. M. Simmons, SC Highway Patrol, Troop 5
- Lance Corporal D. R. Weatherwalks, SC Highway Patrol, Troop 5
- Trooper First Class M. S. Webb, SC Highway Patrol, Troop 5
- Corporal James M. Brantley, SC Highway Patrol, Troop 6
- Senior Trooper William C. Fawcett, SC Highway Patrol, Troop 6
- Senior Trooper Nicolas J. Reeder, SC Highway Patrol, Troop 6
- Trooper First Class Courtney K. Towns, SC Highway, Patrol Troop 6
- Trooper Willie McCauley Jr., SC Highway Patrol, Troop 7
Feb 26, 2012 | DUI & DWI, Uncategorized
This recent SC Court of Appeals case discusses the interplay between the criminal and administrative aspects of a DUI arrest. On the criminal side, an officer must have “reasonable suspicion” to stop a vehicle and then “probable cause” to arrest a suspect. On the administrative side, the DMV has the authority to suspend a person’s driving privilege (not right) for refusal to submit to a breathalyzer test. Although related to the same event, these two aspects are materially different. DUI lawyers are hired to defend the criminal case. The better DUI attorneys will attend the DMV hearing as it can offer an opportunity to question the arresting officer about the case. However, most attorneys require additional fees to get involved in DMV issues. Reasonable suspicion and probable cause are the first elements of a DUI case to be thoroughly investigated and challenged by experienced DUI lawyers. Better make sure your attorney knows what to look for and is willing to fight every aspect of your case.
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 for a private consultation. www.rjrlaw.com.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Amy Lynn Lapp, Appellant,
v.
South Carolina Department of Motor Vehicles, Respondent.
Appeal from Richland County
Paige J. Gossett, Administrative Law Court Judge
Opinion No. 4665
Submitted February 1, 2010 – Filed March 31, 2010
AFFIRMED
John L. Duffy, III and Edward L. Phipps, of Mount Pleasant, for Appellant.
Frank L. Valenta, Jr., Philip S. Porter, and Linda Annette Grice, of Blythewood, for Respondent.
PER CURIAM: This appeal arises from the suspension of Amy Lynn Lapp’s driver’s license by the Department of Motor Vehicles (Department) for refusing to submit to a breath test as required under section 56-5-2950 of the South Carolina Code (2006). The Division of Motor Vehicle Hearings (DMVH) sustained the suspension and the Administrative Law Court (ALC) affirmed.[1] On appeal, Lapp argues that the ALC erred in upholding the DMVH’s determination that probable cause existed to arrest her for driving under the influence (DUI). She also contends that her arrest was unlawful under section 56-5-6170 of the South Carolina Code (2006). We affirm.[2]
FACTUAL/PROCEDURAL BACKGROUND
On November 4, 2007, Officer Trevor Simmons of the Mount Pleasant Police Department was dispatched to the scene of an automobile accident. Upon arriving at the scene, he observed Lapp sitting in her vehicle. Officer Simmons questioned Lapp, who admitted that she had struck two vehicles. Having detected a “strong odor” of alcohol coming from Lapp, Officer Simmons asked Lapp to perform a field sobriety test. Lapp refused. After advising Lapp of her Miranda[3] rights, Officer Simmons arrested Lapp for DUI and transported her to the Mount Pleasant Police Department for a breath test.
While at the Mount Pleasant Police Department, Lapp was again informed of her Miranda rights. She was also advised of her implied consent rights as set forth in section 56-5-2950. Lapp subsequently refused to submit to the breath test, and her driver’s license was suspended pursuant to section 56-5-2951(A) of the South Carolina Code (2006).[4]
A few days later, Lapp requested an administrative hearing with the DMVH to challenge her suspension. The DMVH upheld her suspension, and she appealed to the ALC. The ALC affirmed the DMVH’s decision, and this appeal followed.
ISSUES ON APPEAL
| Did the ALC err in affirming the DMVH’s finding that probable cause existed to arrest Lapp for DUI? |
| Was Lapp’s arrest unlawful under section 56-5-6170 of the South Carolina Code (2006)? |
Standard of Review
Section 1-23-610(B) of the South Carolina Code (Supp. 2009) sets forth the standard of review for an appeal from an order of the ALC. It provides:
The review of the administrative law judge’s order must be confined to the record. The court may not substitute its judgment for the judgment of the administrative law judge as to the weight of the evidence on questions of fact. The court of appeals may affirm the decision or remand the case for further proceedings; or, it may reverse or modify the decision if the substantive rights of the petitioner have been prejudiced because the finding, conclusion, or decision is:
(a) in violation of constitutional or statutory provisions;
(b) in excess of the statutory authority of the agency;
(c) made upon unlawful procedure;
(d) affected by other error of law;
(e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
S.C. Code Ann. § 1-23-610(B) (Supp. 2009).
LAW/ANALYSIS
I. Probable Cause
Lapp argues that the ALC erred in affirming the DMVH hearing officer’s finding of probable cause. We disagree.
The fundamental question in determining the lawfulness of an arrest is whether there was “probable cause” to make the arrest. Wortman v. City of Spartanburg, 310 S.C. 1, 4, 425 S.E.2d 18, 20 (1992). “The term ‘probable cause’ does not import absolute certainty.” State v. Arnold, 319 S.C. 256, 260, 460 S.E.2d 403, 405 (Ct. App. 1995). Rather, probable cause exists “when the circumstances within the arresting officer’s knowledge are sufficient to lead a reasonable person to believe that a crime has been committed by the person being arrested.” State v. Baccus, 367 S.C. 41, 49, 625 S.E.2d 216, 220 (2006).
In ascertaining the presence of probable cause, “all the evidence within the arresting officer’s knowledge may be considered, including the details observed while responding to information received.” State v. Roper, 274 S.C. 14, 17, 260 S.E.2d 705, 706 (1979); see also State v. George, 323 S.C. 496, 509, 476 S.E.2d 903, 911 (1996) (“Whether probable cause exists depends upon the totality of the circumstances surrounding the information at the officers [sic] disposal.”). An officer may lawfully arrest for a misdemeanor not committed within his presence where the facts and circumstances observed by the officer give him probable cause to believe that a crime has been freshly committed. State v. Clark, 277 S.C. 333, 334, 287 S.E.2d 143, 144 (1982); State v. Martin, 275 S.C. 141, 145-46, 268 S.E.2d 105, 107 (1980); Summersell v. S.C. Dep’t of Pub. Safety, 334 S.C. 357, 367, 513 S.E.2d 619, 625 (Ct. App. 1999), vacated in part on other grounds, 337 S.C. 19, 522 S.E.2d 144 (1999); Fradella v. Town of Mount Pleasant, 325 S.C. 469, 475, 482 S.E.2d 53, 56 (Ct. App. 1997).
In Martin, a police officer was dispatched to the scene of a reported accident. When he arrived, he found two damaged vehicles parked on the side of the road and a group of fifteen to twenty people gathered at the scene. The defendant, who was “highly intoxicated,” admitted to being the driver of one of the vehicles. Based upon those facts, the South Carolina Supreme Court held that the defendant’s warrantless arrest was lawful. Martin, 275 S.C. at 146, 268 S.E.2d at 108. In reaching that result, the court explained that “the only reasonable conclusion to be drawn was that a collision between the two vehicles had just occurred and that the crime had been freshly committed.” Id. at 146, 268 S.E.2d at 107.
Here, Officer Simmons was dispatched to the scene of an automobile accident. Upon arriving at the scene, he observed Lapp sitting in her vehicle. Lapp, who smelled strongly of alcohol, admitted to Officer Simmons that she had struck two vehicles. When Officer Simmons asked Lapp to perform a field sobriety test, she refused. Under these circumstances, we find that Officer Simmons had probable cause to arrest Lapp for DUI. Because Lapp was still sitting in her vehicle at the scene of the accident, it was reasonable for Officer Simmons to conclude that the accident had recently occurred and that Lapp had freshly committed the crime of DUI.
Although Lapp contends that the Department failed to prove that she was “materially and appreciably impaired,” an implied consent hearing “is not a trial in regard to the guilt or innocence of the defendant on a DUI charge.”[5] Summersell, 334 S.C. at 369, 513 S.E.2d at 625. The pertinent question here was not whether Lapp was guilty of DUI, but merely whether probable cause existed to arrest her for that offense. Id. at 368-69, 513 S.E.2d at 625. A finding of probable cause may be based upon less evidence than would be necessary to support a conviction. See Henry v. United States, 361 U.S. 98, 102 (1959) (evidence required to establish guilt is not necessary to authorize a warrantless arrest); State v. Blassingame, 338 S.C. 240, 250, 525 S.E.2d 535, 540 (Ct. App. 1999) (“Probable cause may be found somewhere between suspicion and sufficient evidence to convict.”). In this case, the DMVH hearing officer’s finding of probable cause was consistent with holdings from other jurisdictions. See Miller v. Harget, 458 F.3d 1251, 1260 n.5 (11th Cir. 2006) (“[T]he fact that Mr. Miller was driving a vehicle, an odor of alcohol emanated from its interior, and his refusal to submit to a field sobriety test was sufficient to give Officer Harget probable cause to arrest.”); Summers v. Utah, 927 F.2d 1165, 1166 (10th Cir. 1991) (holding that undisputed facts regarding plaintiff’s operation of his vehicle, the officer’s scent of alcohol emanating from the vehicle, and plaintiff’s refusal to take a field sobriety test adequately supported magistrate’s conclusion that DUI arrest was lawful).
For these reasons, we conclude that the ALC did not err by affirming the DMVH hearing officer’s determination that probable cause existed to arrest Lapp for DUI.
II. Section 56-5-6170
Lapp also contends that her DUI arrest was unlawful under section 56-5-6170 of the South Carolina Code (2006) because Officer Simmons failed to testify that Lapp violated any traffic laws. We disagree.
Section 56-5-6170 provides in pertinent part:
No police officer in investigating a traffic accident shall necessarily deem the fact that an accident has occurred as giving rise to the presumption that a violation of a law has occurred. Arrests and criminal prosecution for violation of this chapter shall be based upon evidence of a violation of the law.
S.C. Code Ann. § 56-5-6170 (2006).
As a threshold matter, it does not appear that this issue is preserved for review. To be preserved for appellate review, an issue must have been: (1) raised to and ruled upon by the trial court, (2) raised by the appellant, (3) raised in a timely manner, and (4) raised to the trial court with sufficient specificity. S.C. Dep’t of Transp. v. First Carolina Corp. of S.C., 372 S.C. 295, 301-02, 641 S.E.2d 903, 907 (2007).
Here, Lapp did not specifically argue to the DMVH hearing officer that the arrest was unlawful under section 56-5-6170. Although Lapp’s attorney argued in closing that Lapp’s arrest was unlawful and that “there was no testimony given to any impairment in [Lapp’s] driving,” he did not expressly reference section 56-5-6170. Moreover, neither the DMVH hearing officer nor the ALC mentioned section 56-5-6170 in their decisions. Therefore, we conclude that this issue is not preserved for the court’s review. Cf.Allendale County Bank v. Cadle, 348 S.C. 367, 377-78, 559 S.E.2d 342, 347-48 (Ct. App. 2001) (finding issue was not preserved for review where it was not specifically raised to the trial court).
Furthermore, even if this issue were preserved, Lapp’s argument fails on the merits. Officer Simmons arrested Lapp based on his reasonable belief that she had committed the offense of DUI. Unquestionably, DUI constitutes “a violation of the law.” See S.C. Code Ann. § 56-5-2930(A) (Supp. 2009) (“It is unlawful for a person to drive a motor vehicle within this State while under the influence of alcohol to the extent that the person’s faculties to drive a motor vehicle are materially and appreciably impaired . . . .”) (emphasis added). Moreover, as discussed above, Lapp’s arrest was predicated upon more than just the fact that an accident had occurred. In addition to testifying about Lapp’s admission regarding the accident, Officer Simmons testified that Lapp smelled strongly of alcohol and that she refused field sobriety testing. Accordingly, we conclude that Officer Simmons did not violate section 56-5-6170 by arresting Lapp for DUI.
CONCLUSION
For the foregoing reasons, the ALC’s order is
AFFIRMED.
PIEPER and GEATHERS, JJ., and CURETON, A.J., concur.
[1] After the issuance of its decision, the DMVH’s name was changed to the Office of Motor Vehicle Hearings pursuant to Act. No. 279, 2008 S.C. Acts 2311.
[2] We decide this case without oral argument pursuant to Rule 215, SCACR.
[3] Miranda v. Arizona, 384 U.S. 436 (1966).
[4] Since the suspension of Lapp’s driver’s license, sections 56-5-2950 and 56-5-2951 have been amended. See S.C. Code Ann. §§ 56-5-2950, 56-5-2951 (Supp. 2009). However, those amendments have no bearing on this case.
[5] When determining whether a motorist committed the offense of DUI under section 56-5-2930 of the South Carolina Code (Supp. 2009), “materially and appreciably impaired” is the standard used to assess the motorist’s faculties to drive.
Feb 26, 2012 | Brain Injury/Head Trauma, Car Accidents, DUI & DWI, Personal Injury, Uncategorized, Wrongful Death
This recent SC Court of Appeals case reaffirms that violation of seat belt laws are not admissible in civil cases. Alleged violations cannot be used to show negligence or contributory negligence. In essence, this is one of the rare exceptions where a criminal violation is not allowed to play any role in a subsequent civil lawsuit. Of course, the law was intended to decrease incidences of serious injury, brain injury, or wrongful death. In that regard, the law has worked. However, as here, no amount of safety precautions can fully protect you and your family from head-on collisions. Be Safe. Get Home.
At Reeves, Aiken & Hightower, LLP, all of our attorneys are seasoned trial lawyers with over 70 years combined experience. Whether it is criminal or civil, our litigators are regularly in Court fighting for our clients. Two of our firm’s partners, Art Aiken and Robert Reeves, are inducted lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. Our attorneys include a former SC prosecutor, a former public defender, a former NC District Attorney intern, a former Registered Nurse (RN), and former insurance defense attorneys. As a result of their varied backgrounds, they understand the potential criminal, insurance, and medical aspects of complex injury cases. We would welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials to any other law firm. Then call us today for a private consultation. www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Tracey Sims, as Guardian for Emma G., a minor child under the age of eighteen (18), Appellant,
v.
Dewey V. Gregory, Jr., Respondent.
Appeal From Dorchester County
James C. Williams, Jr., Circuit Court Judge
Opinion No. 4649
Heard October 13, 2009 – Filed January 28, 2010
AFFIRMED
Grahame E. Holmes, Ronnie L. Crosby, and Matthew V. Creech, all of Walterboro, for Appellant.
Thomas Milligan, of Mt. Pleasant, for Respondent.
SHORT, J: Tracy Sims, as guardian for Emma G., a minor child under the age of 18, appeals from the trial court’s grant of summary judgment for Dewey Gregory in an action arising from a car accident. The trial court held (1) South Carolina law does not allow an alleged violation of a seatbelt law to be used as evidence of negligence, and (2) the injuries to the minor child were not caused by any negligence on part of Gregory but were caused by negligence of a third party. We affirm.
FACTS
This case arises from an automobile accident that occurred in Summerville, South Carolina. Gregory was driving his daughter, Emma G., home from school when the accident occurred. Stephen Welch crossed the center line on Highway 17A and struck Gregory’s automobile head-on. As a result of the accident, Emma G. suffered a brain injury. Sims, Emma G.’s mother, filed suit against Gregory on the ground that Gregory failed to properly restrain Emma G. prior to the collision.
Gregory filed a motion for summary judgment arguing Emma G. was properly restrained, and even if she was not, South Carolina law does not allow the violation of a seatbelt law to be used as evidence of negligence. Additionally, Gregory argued the accident was caused by the intervening negligence of a third party, Welch. In support of his position, Gregory submitted an affidavit, stating Emma G. was properly restrained at the time of the collision.
In response, Sims submitted an affidavit, claiming Gregory told her Emma G. was not properly restrained at the time of the accident because Emma G. was wearing only her lap belt and did not have on her shoulder harness. Additionally, Sims submitted an affidavit from her counsel, stating that Emergency Medical Services records indicated Emma G. was wearing only her lap belt at the time of the accident.
The trial court granted Gregory’s motion, holding Gregory was not negligent in causing the accident, the accident was solely the fault of a third party, and South Carolina law does not recognize or allow a cause of action for a violation of the seatbelt statute. This appeal followed.
STANDARD OF REVIEW
When reviewing the grant of a summary judgment motion, this court applies the same standard of review as the circuit court under Rule 56, SCRCP. Cowburn v. Leventis, 366 S.C. 20, 30, 619 S.E.2d 437, 443 (Ct. App. 2005). Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Id. To determine whether any triable issues of fact exist, the reviewing court must consider the evidence and all reasonable inferences in the light most favorable to the non-moving party. Id.
LAW/ANALYSIS
In granting summary judgment, the trial court ruled South Carolina law does not allow a violation of a seatbelt law to be used as evidence of negligence. We agree.
In 1989, the General Assembly passed a statute requiring all drivers and occupants of motor vehicles to use safety belts. S.C. Code Ann. § 56-5-6520 (Supp. 2008). The mandatory seatbelt law states, “[t]he driver and every occupant of a motor vehicle . . . must wear a fastened safety belt. . . . The driver is charged with the responsibility of requiring each occupant seventeen years of age or younger to wear a safety belt or be secured in a child restraint system. . . .” Id. Simultaneously, the General Assembly refused to allow the use of evidence in a civil action showing that a driver or occupant of a motor vehicle failed to use a safety belt. S.C. Code Ann. § 56-5-6540(C) (Supp. 2008). Specifically, section 56-5-6540(C), which delineates the penalties for a violation of the mandatory seatbelt law, states, “[a] violation of this article is not negligence per se or contributory negligence, and is not admissible as evidence in a civil action.”
The cardinal rule of statutory construction is to determine and give effect to the intent of the legislature. Charleston County Sch. Dist. v. State Budget & Control Bd., 313 S.C. 1, 5, 437 S.E.2d 6, 8 (1993). The best evidence of legislative intent is the text of the statute. Wade v. State, 348 S.C. 255, 259, 559 S.E.2d 843, 844 (2002) (internal quotations and citations omitted). If the terms of the statute are clear, the court must apply those terms according to their literal meaning. City of Columbia v. Am. Civil Liberties Union of S.C., Inc., 323 S.C. 384, 387, 475 S.E.2d 747, 749 (1996).
In the present case, section 56-5-6540(C) clearly states a violation of the mandatory seatbelt law cannot be used as evidence in a civil action to show that a driver or occupant of a motor vehicle failed to use a safety belt. Even if we assume Gregory violated the seatbelt law by failing to ensure Emma G. was wearing her safety belt, section 56-5-6540(C) precludes any evidence of Gregory’s alleged violation to be used in a civil trial to show he failed to restrain Emma G. See Clark v. Cantrell, 332 S.C. 433, 451, 504 S.E.2d 605, 614-15 (Ct. App. 1998) (“[Section 56-5-6540(C)] precluded the use of evidence in a civil action showing that a driver or occupant of a motor vehicle failed to wear a safety belt.”). The language of the statute is clear, and as such, we must give effect to that language, and conclude the trial court properly granted summary judgment in favor of Gregory.
Nonetheless, Sims argues her claims of common law negligence would survive even after the enactment of sections 56-5-6520 and 56-5-6540. We disagree.
The South Carolina Supreme Court has held that absent a statutory duty, there was no common law duty to wear a safety belt. Keaton v. Pearson, 292 S.C. 579, 580, 358 S.E.2d 141, 141 (1987). In Keaton, our supreme court stated it was the province of the General Assembly to impose a duty to wear a safety belt. Id. Our General Assembly accepted this invitation, and two years after the Keaton decision enacted the mandatory safety belt law. Clark, 332 S.C. at 451 n.11, 504 S.E.2d at 615 n.11. The only duty to wear a safety belt is statutory. As such, Sims’ argument fails.[1]
CONCLUSION
Accordingly, the trial court’s decision is
AFFIRMED.
WILLIAMS and GEATHERS, JJ., concur.
[1] Both parties argue about the application of section 56-5-6460. This section states, “[a] violation of this article shall not constitute negligence, per se, contributory negligence nor be admissible as evidence in any trial of any civil action.” However, this section only applies to children five years or younger. S.C. Code Ann. § 56-5-6410 (Supp. 2008). At the time of the accident, Emma G. was seven years old. Thus, section 56-5-6460 is inapplicable to this case.
Feb 26, 2012 | Brain Injury/Head Trauma, Car Accidents, DUI & DWI, Personal Injury, Uncategorized
This recent SC Court of Appeals case discusses the importance of keeping some evidence away from a jury because its probative value is outweighed by potential prejudice. Here, a drunk driver was involved in a single car accident during which she ran her car off the roadway. Then, after surviving that accident, she was struck by a large commercial truck when she was standing by the road. Her injuries were catastrophic, and the fact that she was struck by the large truck was clear. However, this case became aggressively contested as to the issue of where she was standing when hit. It became a “battle of the experts.” In serious accident cases, the attorneys must be experienced trial litigators, and they must be willing to go “all the way” in order to get a fair and just result. You have to be able to fight to win.
At Reeves, Aiken & Hightower, LLP, all of our attorneys are seasoned trial lawyers with over 70 years combined experience. Whether it is criminal or civil, our litigators are regularly in Court fighting for our clients. Two of our firm’s partners, Art Aiken and Robert Reeves, are inducted lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. Our attorneys include a former SC prosecutor, a former public defender, a former NC District Attorney intern, a former Registered Nurse (RN), and former insurance defense attorneys. As a result of their varied backgrounds, they understand the potential criminal, insurance, and medical aspects of complex injury cases. We would welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials to any other law firm. Then call us today for a private consultation. www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Savannah K. Johnson, Personal Representative of the Estate of Susan Johnson, Respondent,
v.
Horry County Solid Waste Authority, Appellant.
Appeal From Horry County
J. Michael Baxley, Circuit Court Judge
Opinion No. 4716
Heard May 19, 2010 – Filed July 28, 2010
AFFIRMED
Douglas C. Baxter, of Myrtle Beach and Mason A. Summers, of Columbia, for Appellant.
Luke A. Rankin, of Conway, for Respondent.
KONDUROS, J: Horry County Solid Waste Authority (the County) appeals the trial court’s decision to suppress evidence regarding the decedent’s blood alcohol level in this wrongful death action. The County also claims the trial court erred in referencing the South Carolina Commercial Driver’s License Manual (the CDL Manual) in its charge to the jury warranting a new trial. We affirm.
FACTS
Susan Johnson (Decedent) was involved in a one-car, roll-over accident around 4 a.m. on January 5, 2005. Decedent drove off the right side of the road and then over-corrected, causing the accident. Her vehicle, a black sports utility vehicle (SUV), came to rest facing oncoming traffic and inside the safe zone of the road.[1] Tommy Bell approached Decedent’s vehicle driving a Horry County Solid Waste Authority Truck. Bell testified he saw Johnson’s vehicle, then a blur, and then he felt a bump. He pulled over and saw Decedent’s body lying on the side of the road and called 911. Decedent suffered catastrophic injuries having been crushed between the County’s truck and her SUV. Her daughter, Savannah Johnson, brought a wrongful death action against the County as person representative of Decedent’s estate.
At trial, Johnson made a motion in limine to exclude evidence of Decedent’s blood alcohol level, which was .14, and evidence showing traces of marijuana and cocaine in Decedent’s bloodstream. Johnson argued no independent evidence linked Decedent’s intoxication to the second accident. At the trial court’s request, the County attempted to establish such a connection. The County raised several pieces of evidence. First, Lieutenant Robert Lee, a South Carolina State Trooper and head of the Major Accident Investigation Team for the Pee Dee Region, had testified in his deposition that Decedent’s single-car accident occurred because she was under the influence of alcohol or drugs and ran off the shoulder of the road. He stated fatigue may have also been a factor. The County also argued its expert, James Middleton, would testify Decedent was standing on the white line separating the safe zone and road at the time of impact and that her intoxication would have impaired her judgment. Finally, the County also indicated the cocaine and marijuana in Decedent’s system had been ingested within hours of the accident.[2]
Johnson maintained Lee’s explanation for the first accident was not really independent but was colored by his knowledge of Decedent’s toxicology report. Johnson also argued Middleton’s deposition testimony was ambiguous and did not give a definite opinion as to where Decedent was standing when she was struck.
After hearing arguments, the trial court granted Johnson’s request to exclude the evidence. The trial court concluded no evidence indicated Decedent’s intoxication contributed to the second accident and the evidence was substantially more prejudicial than probative under Rule 403, SCRE. The trial court indicated the motion could be reconsidered upon presentation of sufficient evidence that Decedent’s intoxication contributed to the accident.
Johnson called Lieutenant Lee at trial.[3] He testified his investigation and conclusions focused on a tire print found on the white line separating the road from the safe zone. He testified the tire print matched the print of the County’s truck and such a print would only be made when a vehicle had an impact against another object sufficient to create a vibration, stamping the print onto the line. Lieutenant Lee further testified in his opinion, based on Decedent’s injuries and the damage to the County’s truck and the SUV, Decedent was not in the road at the time she was struck.
The redacted deposition testimony of pathologist Dr. Edward Proctor, Jr. was read into the record. He testified Decedent’s injuries were consistent with her being hit on the right side of her body and being rotated around as the truck pinned her against her SUV. Dr. Proctor also stated Decedent would have been standing relatively close to her car for the injuries to have occurred the way they did. He opined this would likely mean she was either standing inside or no further than on the white line delineating the road from the safe zone.
Another expert in accident reconstruction, Woodrow Poplin, testified next. Poplin stated in his expert opinion, the County’s truck had drifted over into the safe zone and struck Decedent.[4] He opined Decedent was not across the white line separating the road and safe zone but was just inside it, right at its edge. Like Lee, Poplin believed the tire print on the white line was made by the County’s truck. Poplin also testified he believed Decedent had moved her vehicle into the safe zone during the time between the first and second accidents.
At this time, the County again sought to have the drug and alcohol evidence admitted into the record, arguing Poplin’s testimony that Decedent had moved her SUV should change the trial court’s analysis. The County maintained Decedent’s driving the vehicle into an unsafe position, not far enough off the road, made her driving under the influence a contributing factor in the second accident. The trial court again excluded the evidence concluding the link between Decedent’s intoxication and the second accident was too tenuous.
Decedent’s ex-husband testified he saw her at a local bar and grill earlier in the evening on the night of the accident. The two spoke briefly, but he did not observe Decedent’s activities and did not see her consume any alcohol.
The defense called its accident reconstruction expert, James Middleton. Middleton disagreed with the other experts regarding the tire print. Based on his analysis, the tire print was not necessarily made by the County’s truck. In his opinion, Decedent was standing in the road “straddling the white line” at the time she was struck.
Johnson had asked Bell about the amount of sleep he had gotten prior to the accident and attempted to establish through Middleton that Bell’s fatigue could have been a factor in the second accident. In allowing such questioning, the trial court assured the County that it could likewise question witnesses about circumstantial evidence of Decedent’s alcohol consumption. In response, the County indicated no witness could testify to seeing Decedent consume alcohol, but her mere presence at the bar prior to the accident was at least circumstantial evidence of her intoxication.
When that discussion was concluded, the parties stipulated Middleton would have testified the level of alcohol in Decedent’s bloodstream would have impaired her judgment and that her intoxication contributed to the second accident. The County did not raise the blood alcohol evidence again.
The jury found the County eighty-five percent negligent for Decedent’s injuries and found Decedent fifteen percent negligent and awarded damages in the amount of $500,000.[5] This appeal followed.
LAW/ANALYSIS
I. Admission of Blood Alcohol Evidence
The County contends the trial court erred in concluding Decedent’s blood alcohol was inadmissible because insufficient evidence linked her intoxication to the second accident, making the evidence substantially more prejudicial than probative. We disagree.
Evidence is relevant and admissible if it tends to establish or make more or less probable some matter in issue. Rule 401, SCRE; Rule 402, SCRE. However, otherwise relevant evidence may be excluded when its probative value is “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . .” Rule 403, SCRE. “Unfair prejudice means an undue tendency to suggest a decision on an improper basis.” State v. Owens, 346 S.C. 637, 666, 552 S.E.2d 745, 760 (2001)overruled on other grounds by State v. Gentry, 368 S.C. 93, 610 S.E.2d 494 (2005). “An appellate court reviews Rule 403 rulings pursuant to an abuse of discretion standard and gives great deference to the trial court.” Lee v. Bunch, 373 S.C. 654, 658, 647 S.E.2d 197, 199 (2007). “A trial judge’s decision regarding the comparative probative value and prejudicial effect of evidence should be reversed only in exceptional circumstances.” State v. Adams, 354 SC. 361, 378, 580 S.E.2d 785, 794 (Ct. App. 2003).
One of the leading cases in this area is Lee, 373 S.C. at 654, 647 S.E.2d at 197. In Lee, the South Carolina Supreme Court determined evidence of Lee’s blood alcohol content was relevant and admissible.[6] Id. at 659, 647 S.E.2d at 200. In making this determination, the court relied upon corroborating evidence that Lee had been drinking at the time of the accident and that his intoxication was a cause of the accident. Id. at 658-59, 647 S.E.2d at 199-200. Lee admitted to drinking shortly before the wreck and expert testimony showed Lee’s blood alcohol level would have impaired his judgment and ability to operate a motorcycle. Id. An eyewitness also saw Lee going over the speed limit, and the accident occurred left of the center line. Id. at 659, 647 S.E.2d at 200.
Kennedy v. Griffin, 358 S.C. 122, 595 S.E.2d 248 (Ct. App. 2004), stands in contrast. In Kennedy, a tractor-trailer turned left in front of Kennedy as he approached in his pickup truck. Id. at 125-26, 595 S.E.2d at 249. Kennedy struck the eighteen-wheeler on its rear set of tires. Id. According to a witness, Kennedy had enough time to see the truck and apply his brakes sooner than he did. Id.at 126, 595 S.E.2d at 250. The other driver indicated he believed he had a safe distance to make the turn, while Kennedy testified the tractor-trailer bolted out in front of him. Id. This court reversed the trial court’s admission of toxicology reports showing the presence of marijuana in Kennedy’s bloodstream. Id. at 128-29, 595 S.E.2d at 251. The court reasoned no evidence regarding the level of marijuana in Kennedy’s system or how long it had been present was presented. Id. at 128, 595 S.E.2d at 251. Also, no witnesses testified Kennedy smelled of marijuana and no marijuana was found at the accident scene. Id. Furthermore, the circumstances of the accident did not “necessarily suggest that [Kennedy] was driving under an impairment.” Id. Under those circumstances, the court concluded, the danger of unfair prejudice substantially outweighed the probative value of the toxicology report. Id. at 128-29, 595 S.E.2d at 251.
This case lies between Lee and Kennedy. We have more corroborating evidence than in Kennedy. The toxicologist’s unredacted deposition testimony indicated Decedent had ingested marijuana and cocaine within hours of her death. That testimony also revealed Decedent’s blood alcohol level to be well in excess of the limit for driving under the influence. Decedent’s ex-husband testified she was at a bar from approximately midnight until 4 a.m. the night of the accident, and Lieutenant Lee testified in his deposition that the circumstances of Decedent’s first accident indicated it occurred because she was intoxicated or possibly fatigued. Furthermore, Middleton, at trial, placed Decedent at least partially in the road at the time of impact.
However, no one witnessed the first or second accident, and there is no “smoking gun” like in Lee, when the accident inarguably occurred to the left of the center line. Taking the second accident independently, the County presented no evidence Decedent’s intoxication contributed to her being struck by the County’s truck. In attempting to establish the link between intoxication and the second accident, no expert testimony was proffered for the trial court’s consideration regarding how her judgment would have been impaired with respect to staying out of the road. Almost all the expert testimony placed Decedent within the safe zone at the time of impact. Even Bell testified he did not see Decedent in the road. Furthermore, although Decedent’s ex-husband placed her at a bar prior to the accident, he did not testify to seeing her consume any alcohol.
Essentially, the jury was presented with a battle of the experts. Middleton testified that in his opinion, Decedent was straddling the white line when she was struck. However, that opinion, as well as the other expert opinions, was rendered on the physical evidence at the scene of the accident. Her intoxication would not have changed the expert opinion of any of the witnesses, and the jury simply had to choose which expert they believed based on their explanations of how the accident occurred.
Under the circumstances, evidence of Decedent’s blood alcohol level was relevant and had some probative value. However, giving due deference to the trial court’s decision, we agree the prejudice created by admitting Decedent’s blood alcohol level substantially outweighed the probative value. Therefore, the trial court’s ruling excluding the evidence is affirmed.
II. Jury Charge
The County takes exception to the portion of the trial court’s jury charge referencing the CDL Manual. The County argues the trial court erred in charging from the CDL Manual because doing so imposed a higher standard of care on Bell as a commercial driver when the CDL Manual guidelines do not carry the force of law. We disagree.
The objectionable portion of the jury charge is as follows:
I charge you that South Carolina’s commercial driver[‘]s license program requires high standards and skills of commercial motor vehicle operators.
In reference to staying centered in a lane, I charge you that the [CDL] Manual states that a driver needs to keep the vehicle centered in the lane to keep safe clearance on either side. If the vehicle is wide, there is little room to spare.
In reference to how far ahead to look, the [CDL] [M]anual states that most good drivers look twelve to fifteen seconds ahead. That means looking ahead the distance you will travel in twelve to fifteen seconds. At lower speeds, that’s about one block. At highway speeds it’s about a quarter of a mile assuming [visibility] permits. If you’re not looking that far ahead, you may have to stop too quickly to make the quick lane changes.
The County lodged an objection stating: “We talked earlier about the charge, about the South Carolina Commercial Driver’s License Program requires higher standards, skills, and I don’t think the mere fact that someone has a CDL they then have a higher standard of care than anyone else on the roadway.” Johnson argues this issue is not preserved for our review because the County did not specifically state the CDL Manual does not carry the weight of law. We disagree. Questioning whether the CDL Manual established a particular standard of care, as the common law or statue may, implicitly calls into question the force of the CDL Manual as something less than law. See State v. Hamilton, 344 S.C. 344, 361, 543 S.E.2d 586, 595 (Ct. App. 2001) overruled on other grounds by State v. Gentry, 368 S.C. 93, 610 S.E.2d 494 (2005) (“In order to preserve for review an alleged error, the objection should be sufficiently specific to bring into focus the precise nature of the alleged error so it can be reasonably understood by the trial [court].”). Therefore, we will proceed to the merits of this issue.
The information contained in this charge was already introduced through the testimony of Bell himself and Poplin. Nevertheless, jury instructions are to charge the current and correct law of the state, and the County is correct in pointing out the CDL Manual does not carry the force of law. See McCourt v. Abernathy, 318 S.C. 301, 306, 457 S.E.2d 603, 606 (1995) (“The trial judge is required to charge only the current and correct law of South Carolina.”). Consequently, the trial court erred in referencing the manual and its guidelines when charging the jury.
In reviewing jury charges for an alleged error, the appellate court “must consider the court’s jury charge as a whole in light of the evidence and issues presented at trial. If, as a whole, the charges are reasonably free from error, isolated portions which might be misleading do not constitute reversible error.” Keaton ex rel. Foster v. Greenville Hosp. Sys., 334 S.C. 488, 497, 514 S.E.2d 570, 575 (1999).
In this case, the charge, read as a whole, indicates the standard of care to establish negligence is that of a reasonable person. The trial court instructed:
Negligence means that a person did not use the same amount of care that a person of ordinary reason and prudence would exercise in the same circumstances. . . . It can be said that a negligent person has done something that a reasonable person would not have done, if faced with the same situation; or, on the other hand failed to do something that a reasonable person would have done if faced with the same situation . . . . Now that is negligence.
The trial court further charged the jury regarding the laws of South Carolina pertaining to the operation of a motor vehicle.
I charge you under South Carolina law that the driver of an automobile also has a duty to keep the automobile under proper control so that the driver is able to slow down, stop, or turn the automobile to avoid colliding with other vehicles, pedestrians, and objects lawfully on the road.
I charge you that the driver of a vehicle approaching a person engaged about an automobile in the highway owes that person the duty to exercise reasonable care to avoid injuring him.
I charge you that the first duty of a motorist is to keep a sharp lookout to discover presence of those who might be in danger, and if he performs that duty and discovers that someone is in danger, a second duty arises to use every possible available means to avert injury and, if [a] motorist fails to perform that duty, his negligence is a proximate and immediate cause of injury.
I charge you that the discovery of danger by the defendant or the duty to discover it in exercise of due care includes the duty under the circumstances to appreciate peril in time to take steps necessary to avert an accident.
I charge you that a driver on the public roads owes a duty to keep a proper lookout for persons or objects upon the highway. That duty is not merely one of looking, but one of seeing.
I charge you that a person using the public roadways of this state owe a duty to exercise ordinary care at all time to avoid an accident.
These charges all address the care that any driver is required to exhibit in operating a motor vehicle. Furthermore, the trial court’s general charge on the meaning of negligence comports with requiring a driver to use the ordinary care another driver would use under the same circumstances. On the whole, the trial court’s jury instructions properly stated the appropriate standard of care so that we do not believe the reiteration of some guidelines from the CDL Manual prejudiced the County. Accordingly, we do not believe the trial court committed reversible error in including the CDL Manual reference in the jury instructions.
CONCLUSION
We affirm the trial court’s decision to exclude evidence of Decedent’s blood alcohol level because a sufficient link was not established between her intoxication and the second accident and because the probative value of the evidence was substantially outweighed by the likelihood of unfair prejudice. Additionally, we find the trial court did not commit reversible error by referencing the CDL Manual in the charge when the instructions, as a whole, accurately conveyed the proper standard of care to be applied by the jury. Based on all of the foregoing, the rulings of the trial court are
AFFIRMED.
HUFF and THOMAS, JJ., concur.
[1] This area may commonly be called the emergency lane or shoulder of the road, but we will refer to it as the safe zone. The safe zone in this case is the area to the right side of the white line demarking the end of the actual road.
[2] The pathologist’s testimony on this point was not specifically brought to the attention of the trial court at this time, but the pathologist’s unredacted deposition was proffered and it supports this contention. His redacted deposition was read into the record.
[3] Lieutenant Lee was technically a First Sergeant the day he testified at trial with his promotion due to take effect four days later.
[4] Bell did not dispute evidence that his tire was over the white line demarcating the road from the safe zone.
[5] This amount was capped at $300,000 pursuant to the South Carolina Tort Claims Act, Section 15-78-120(1) of the South Carolina Code (2005).
[6] This decision affirmed the trial court.
