Apr 4, 2013 | Personal Injury, Trucking/Tractor-Trailer Accidents, Uncategorized
Early Tuesday morning was bleak for a certain individual when a tractor-trailer was found overturned on Interstate 85’s off ramp.
To make matters worse, this particular off-ramp was the one connecting Interstate 77 to Interstate 85, one of the most traveled interstates in the Carolinas.
Clean up crews worked around the clock to clear the debris from the roadway. The site was finally completely cleaned by 6:30 a.m., just a few hours after the accident occurred.
The North Carolina Highway Patrol has stated that the cause of the accident was not related to alcohol, but rather the driver of the tractor-trailer took the turn in the ramp too hastily, causing the truck to overturn. The driver was not familiar with this particular ramp.
The tractor-trailer was reported to of been carrying scrap metal. Some of the metal was flung from the truck and did in fact hit other drivers on the road. The driver was not harmed in the incident. The same can not be said for the driver of the tractor-trailer, who did suffer from minor injuires to his arm.
Troopers reportedly cited the truck driver for reckless driving.
In the United States, approximately 500,000 accidents involving large commercial vehicles happen every year. Although these large vehicles play a huge part in our nation’s economy, commercial vehicles present dangers for road users. If you or someone you know has been involved in a crash involving a tractor-trailer or otherwise, call the expirenced attorneys at Reeves, Aiken, and Hightower at 704-499-9000 or 877-374-5999 toll-free
Apr 3, 2013 | DUI & DWI, Felony DUI, Uncategorized
When a DUI Statute contains multiple severity levels, or provides for enhanced punishment, on the basis or a defendant’s previous convictions for the offense, it has been held that, though a level of severity with which the defendant is charged must be pled in the charging document. The defendant’s previous convictions do not constitute elements of the offense which must be proven at trial; however, they can be established during the punishment phase.
Defendant’s prior convictions for driving under the influence are inadmissible bad character evidence in a prosecution for driving under the influence, even though the prior convictions are relevant to the categorization of the sentence the defendant will receive if convicted. But, it has been previously held that, where a conviction must have occurred within a prescribed time period to support an enhanced severity level or penalty, failure to establish the date of a prior conviction will require reversal of a subsequent conviction under the enhancement provision.
It has previously been held that, where a conviction must have occurred within a prescribed time period to support an enhanced severity level or penalty, failure to establish the date of a prior conviction will require a reversal of a subsequent conviction under the enhancement provision. And, some states have statutes protecting the right of a defendant to a fair trial in an enhanced DUI prosecution by providing that, where there is a jury trial, the proceeding must be bifurcated (or split in half), with evidence and information about the defendant’s alleged prior convictions excluded from the jury’s knowledge at the guilt phase.
While certified copies of records of prior DUI convictions is one method of proving commission of prior offenses, it has been held that such copies are not the sole acceptable method. Further, where those methods have been destroyed in the ordinary course of court business, other proof may be substituted.
Some courts, including South Carolina, have held that prior convictions in other states may be proven to support punishment under an enhanced penalty provision, where the out-of-state convictions under an enhanced penalty provision, where the out-of-state convictions were for substantially similar offenses.
While the provisions listed here are general provisions for throughout the United States, they apply to South Carolina for the most part. But, one things that is extremely important to note is that if you have previous DUI convictions, it is so important for you to retain a competent DUI lawyer to navigate through the DUI system as efficiently as possible. Call the law offices of Reeves, Aiken & Hightower, LLP for a consultation at our Baxter Village office located in Fort Mill, South Carolina. You can reach us at 803-548-4444, or toll-free at 877-374-5999.
Apr 3, 2013 | DUI & DWI, Felony DUI, Uncategorized
On May 19, 2010, a South Carolina officer arrested Ms. Chisolm for driving under the influence. The officer had received a call that the passenger in the car was “banging on other cars.” The officer had the driver take three field sobriety tests: the one-legged stand, the walk and turn, and the horizontal gaze nystagmus test. She failed two of the tests; however, neither test discovered the amount of alcohol she had in her system.
The officer then transported Chisolm to the police station, where he administered a breath test. She blew into the test for one minute and fifty three seconds. However, the instrument just did not register, or detect any alcohol. There is no evidence that Chisolm was being uncooperative or failed to listen to the officer’s instructions. However, the officer put in the records that the woman refused to submit to the breath test, and her license was suspended as a result.
Thereafter, Chisolm requested an administrative hearing before the South Carolina Office of Motor Vehicle Hearings (OMVH) to challenge the suspension arguing that her suspension was unjustified because (1) there was no probable cause to arrest, and (2) she never refused to give the sample required by law and provided an adequate test sample.
Chisolm argues the ALC erred in determining a refusal takes place pursuant to section 56-5-2951 when the breath test instrument “determines” a provided sample is inadequate. According to Chisolm, a refusal only takes place when the test subject actually refuses the conscious act of blowing into the instrument, and the ALC erred in interpreting the SLED policies and procedures in a manner that is contrary to section 56-5-2951. She contends that she never “refused” within the meaning of this section, and therefore the suspension of her license was unjustified.
The courts in South Carolina have stated that being licensed to operate a motor vehicle on the public highways of this state is not a property right, but is a privilege. Therefore, it is subject to reasonable regulations under the police power in the interest of the public safety and welfare. However, the privilege may not be revoked or suspended arbitrarily or capriciously. Further, the Department of Motor Vehicles must suspend the driver’s license, permit, or nonresident operating privilege of or deny the issuance of a license or permit to a person who drives a motor vehicle and refuses to submit to a breath test.
The requirements for suspension for refusal to consent are as follows: (1) a person (2) operating a motor vehicle (3) in South Carolina (4) be arrested for an offense arising out of acts alleged to have been committed while the person was driving under the influence of alcohol, drugs, or both, and (5) refuse to submit to alcohol and drug testing.
The SLED policies and procedures with regard to the breathalyzer test are as follows:
§ 8.12.5(L)(2)(f)(i).
If an acceptable breath sample is not provided in two minutes, the instrument will display “Did the subject refuse?” When question is prompted, press the touch-screen icon, “Yes” or “No”. If “Yes” is answered, the instrument will print “REFUSED” by “SUBJECT SAMPLE”, after the final steps of the operational protocol are completed…. If “No” is answered, the test will abort and the instrument will print “INCOMPLETE SUBJECT TEST” on the Breath Alcohol Analysis Test Report/Evidence Ticket. An “INCOMPLETE SUBJECT TEST” reading, by itself, is not a refusal situation. (A “NO” should only be entered if the subject failed to provide an acceptable breath sample through no fault of his/her own.). In the event of an “INCOMPLETE SUBJECT TEST”, the breath test sequence may be repeated, except the advisement process is not required to be repeated. http://www.sled.sc.gov/documents/impliedconsent/polproc/8125/200902108125.pdf (last visited March 15, 2013).
The South Carolina Code does not define “refusal.” However, SLED’s policies and procedures provide several examples of when a refusal can occur. For example, a refusal can occur if the subject refuses to cooperate, delays the administration of the test, ingests prohibited substances during the observation, or intentionally causes the instrument to have an error.
Here, the court affirmed the suspension of Chisolm’s license, finding the record contains evidence that “the machine determined that the breath sample was not measurable, and thus inadequate.” It was further found that the “facts of the case conform to the criteria for determining a refusal pursuant to SLED policy and the officer properly found that the woman refused to submit to a breath test. A plain reading of the South Carolina statute at issue (56-5-2951(A) provides that the department may suspend a driver’s license when a person refuses to submit to a breath test.
A review of the record and video recording reveals that Chisolm wanted to take the breath test, blew into the DataMaster, and the instrument produced a steady tone for an extended period of time that indicated sufficient air was going into the instrument. The officer even reported that there was a steady tone. Even though the machine failed to register Chisolms breath sample, at no time did the machine indicate that she was not blowing an adequate sample.
Here, according to the officer Chisolm was absolutely doing what she was supposed to do. Also, when the officer offered Chisolm the opportunity to take the test a second time, she agreed to do so; however, the instrument would not allow for another test.
The officer testified that he had no clue why the test was registering in such a way, and stated that he felt that the DataMaster simply did not register. But, the officer pressed the “yes” button when asked whether the defendant refused the breath test. This was a complete lie, and is what the woman’s case hinges on. This act was “arbitrary and capricious” and a “manifest abuse of his discretion resulting in Chisolm’s license revocation.
The fact that the officer’s statement was that he “had no clue” why the DataMaster was not registering, while Chisolm continued to blow steadily into the machine indicates that she was cooperating fully and engaging in the test how she was supposed to. And, the SLED policies provide the officers with discretion to determine whether the subject’s failure to blow an acceptable breath sample was a refusal. However, this determination cannot be arbitrary and capricious.
So, the record here indicates that Chisolm did not refuse to take the test and the Department did not produce any evidence indicating that she was trying to fake or thwart the test, be uncooperative, act unruly, delay the administration of the test, ingest prohibited substances during the observation period, fail to cooperate with the officers instructions, or behave in any manner that would amount to a constructive refusal. Therefore, the court found it fundamentally unfair under the facts herein to label as a refusal a situation where Chisolm blew for such an extended length of time with a steady tone by the instrument, absent any allegations of fault by Chisolm or any attempt to fake or thwart the test. So, based on the facts and circumstances of this case, the officer’s decision to enter a refusal, in light of his own testimony, was arbitrary and capricious, and the State has thus failed to meet its burden of producing evidence to support the officer’s determination of refusal. The decision of the ALC is therefore overruled.
In this case, Chisolm go off the hook because she listened to the officer’s instructions and the breath test failed to register the test. There are circumstances over and over again in the DUI world that make the evidence insufficient to prosecute a defendant. Therefore, if you or a loved one has been charged with a DUI, and you feel that there is insufficient evidence, contact the law offices of Reeves, Aiken & Hightower, LLP for a consultation. Call our Baxter Village office located in Fort Mill, South Carolina at 803-548-4444, or toll-free at 877-374-5999.
Apr 3, 2013 | Criminal Defense, Drug Crimes and Controlled Substances Defense, Uncategorized
A recent United States Supreme Court ruling, Florida v. Jardines, has decided that an officer conducts a Fourth Amendment search 
when he brings a drug dog onto the porch of a house to sniff the front door. In this case, a Miami officer received a tip that marijuana was being grown in a residence. The officers went to the front door of the house, and the dog acted as though he detected drugs in the house. Thereafter, the officers left, allegedly obtaining probable cause for a search warrant, and when they entered the residence, they found numerous marijuana plants. The defendant was then charged with drug trafficking.
The defendant argued that the use of the dog was an unreasonable search in violation of the Fourth Amendment of the U.S. Constitution. The trial court agreed with this, the appellate courts were split, and Jardines found himself in front of the U.S. Supreme Court. Justice Scalia wrote the majority opinion in favor of the defendant. His reasoning was based on the “physical intrusion theory” that he advanced in United States v. Jones. He stated that the officers entered the curtilage (area so intimately connected with the home as to have extra privacy provisions) of the defendants home with the purpose of gaining information.
Scalia rejected the argument that there was an “implicit license” for the officers to approach the home with the dog. He stated that custom allows a visitor to approach the home by the front path, knock promptly, and then leave. However, this does not allow a visitor to engage in investigative activity such as bringing a trained dog to sniff the porch. Therefore, the scope of this type of search is limited.
Justice Scalia distinguished this from Illinois v. Caballes, where it was held that the use of a drug dog during a traffic stop does not violate the motorist’s reasonable expectation of privacy because the dog cannot impinge on the reasonable expectation of privacy, it may constitute a physical intrusion.
Justice Kagan concurred, arguing that the case could also be decided for the defendant under the reasonable expectation of privacy theory, comparing the use of a drug dog to a situation in which “a stranger comes to the front door of your home carrying super-high-powered binoculars” and uses them to peer into the recesses of your dwelling, thereby exposing what is reasonably expected to be private.
However, Justice Alito dissented reasoning that visitors, welcome or not, have an implied “license to use a walkway to approach the front door of a house and to remain there for a brief time,” regardless of their purpose. He also rejected Kagan’s reasonable expectation of privacy theory.
Therefore, the justices that combined to form the ruling for this case shows something very interesting. This illustrates how split the justices can be when making a ruling on a Fourth Amendment issue. If you or a loved one has been involved in a search that you believe is arguable whether there was probable cause, call the law offices of Reeves, Aiken & Hightower, LLP. For a consultation, visit us at our Baxter Village office located in Fort Mill, South Carolina, or call us at 803-548-4444, or toll-free at 877-374-5999.
Apr 3, 2013 | Car Accidents, Criminal Defense, Pedestrian Accidents, Uncategorized
A Rock Hill policeman has been hit by a car driven by fleeing felons last Tuesday evening in an attempt to capture the two shoplifters.
According to the reports, the officer was called onto the scene around 5:30 Tuesday evening, where there was a report of two young women trying to steal clothing from the local Kohl’s on Meeting Boulevard.
When the policeman arrived, he was met by the store’s loss prevention manager, who restated the following in regards to the event: ” while watching them on camera, the Kohl’s employee noticed that the two women carried in large, yet empty purses.
The employee continued to watch the 20 and 21 year old women as they loaded their arms up with clothing and took it into the dressing rooms, the report states.
Curious and suspicious of this activity, the Kohl’s employee walked into the adjacent dressing room to investigate. She stated that she heard the two women ripping the price tags off as they were both frantically shoving differnet items into their purses.
The ladies waited about 10 minutes, then walked out of the dressing roomswith their purses filled to the brim. The employee contacted the loss prevention manager, who then went into the dressing room to investigate for herself. There she found price tags on the floor and a room full of empty hangers.
It was at that point the manager made the decision to contact the police officer. The officer was nearby and arrived on the scene before the women had a chance to escape. He walked out of the store, identified himself, and asked the women to stop. They refused and jumped into 2009 Toyota Corolla in an attempt to make off with the stolen merchandise.
The officer then approached the driver’s side door and ordered the driver and her passenger to exit the vehicle. Meanwhile, he was holding onto the door handle, the report states. This physical contact did not hault the driver one bit, and she began to driver away with the officer still holding onto the door handle. In fact, his grasp was so tight that the handle broke off of the vehicle as the friction caused the officer to spin around to where the back of the women’s car struck the officer.
The driver drove through the parking lot with total disregard for safety of other drivers and pedestrains alike. The officer did suffer minor injuries, but has since been released and in fine to continue his duty on the workforce.
The two women were discovered at the Stone Haven Pointe apartment complex when the police found their vehicle parked at the complex. The women were subsequently arrested.
The driver has since been charged with shoplifting, failure to identify [herself] and reckless driving. The co-conspirator/passenger was charged with shoplifting and failure to identify.
Luckily, the officer’s injuires were considered minor, and the stolen merchandise has been returned to the Kohl’s it was taken from.
Sometimes people make mistakes. Sometimes those mistakes are accidental. In the event you, or someone you know is being charged with a crime, contact the law offices of Reeves, Aiken, and Hightower to speak to an expirenced criminal defense attorney today. With our former prosecutor, J. Tyler Burns on your side, he will use his knowledge and skill learned from the other side to diligently argue your case for you. We can be reached at 803-548-4444 or toll-free at 877-374-5999.
Apr 2, 2013 | Motorcycle Accidents, Uncategorized
A 62-year-old man was killed after being struck by a car while he was attempting to avoid a wreck. The man died at Trident Hospital in Berkeley County, South Carolina. According to the Berkeley County Coroner, a group of motorcycles were traveling north on U.S. 17A in Goose Creek, when in an attempt to avoid the collision, the man fell from his bike, and was run over by a sedan traveling in the same direction.
While there was no evidence of negligence in this particular accident, most often motorcycle accidents are the fault of a driver of the car that strikes the motorcyclist. Further, motorcycle accidents almost always result in serious medical bills for the rider due to the fact that there is no protection on the bike itself, and when struck, it is usually the rider of the bike who is hit dead-on.
The medical bills for motorcycle accidents are almost always in the hundreds of thousands. There is almost always a helicopter flight involved, which costs upwards of $25,000, and an extended stay in the hospital can cost tens of thousands of dollars a week. This is why it is so imperative for the rider to have proper insurance coverage to ensure that none of these expenses come out of the rider’s pocket. It is very important for riders to discuss raising his or her coverage to prepare for such an injury.
If you have questions, or if you or a loved one has been involved in a motorcycle accident, call the law offices of Reeves, Aiken & Hightower, LLP. We have motorcyclists in our office, and we understand the pressures associated with a motorcycle injury. For a consultation, give us a call at 803-548-4444, or toll-free at 877-374-5999. We are here to assist you.
Early Tuesday morning was bleak for a certain individual when a tractor-trailer was found overturned on Interstate 85’s off ramp.
