Under South Carolina “driving under the influence” (DUI) law, all police vehicles are required to have video recording equipment. This equipment is to be maintained, and all video evidence is to be preserved in DUI cases. In addition to car video, “breath testing” centers are also required to have video surveillance as well. There are specific statutes written as part of the law on DUI arrests and prosecutions. As a result, we have, on average, approximately an hour to an hour and a half of video evidence in almost every DUI case. Video takes a lot of the “he said, she said” out of DUI trials. Juries can see in effective “real time” what happened on the night of the arrest.

In the usual DUI trial, there is the testimony of the arresting officer. Sometimes, there may be more than one police officer involved, and more complex cases may require the testimony of lab or other medical experts. Regardless of the number of State witnesses, the person charged is sitting in court and may or may not testify. Unless it is truly necessary, we typically do not put our client on the stand, and we tell the jury the reason is nothing said at trial really matters. All relevant facts and statements have been preserved for their “first hand” review. No one needs to tell you what you can see. Certainly, we will highlight those aspects that tend to show our client in a favorable light. We will focus on those behaviors or conversations that show someone is not “impaired” or “drunk.” But, ultimately, the jury gets to decide what they see and hear for themselves.

Despite knowing that everything has been recorded, I am often surprised when the offered testimony of officers and/or other witnesses describe, in classic fashion, elements of the arrest that are directly contradicted by the video evidence. For example, in one case, there was approximately three (3) minutes of the police car following my client on a straight stretch of road. During that entire time, the vehicle never changed lanes or “touched” either lane markers. Nevertheless, the first comment by the officer upon stopping the vehicle was that my client was “all over the road.” Even when confronted with the video footage, the officer maintained that observation. Of course, at that point, the jury had serious concerns about the officer’s credibility after they watched the video twice. In another case, like so many others, the officer testified with the almost “boiler plate” description of “red, glassy eyes, slurred speech, and unsteady on his feet.” The extensive video evidence never showed such attributes, and again, the officer stood by his earlier testimony even when pressed on exactly when my client exhibited the otherwise non-existent “slurred speech.”

Before video evidence became available or improved beyond the initial “grainy” images, it was simply the officers’ word vs. the charged defendant. And, in those cases where the defendant elected to not testify, it was just the State’s case without challenge. Not unexpectedly, most DUI cases were lost. That is why all experienced DUI lawyers are major proponents of video – “the more, the better.” After all, why would the State not want video evidence. First, it protects officers on the street. It would seem a criminal suspect would be less likely to shoot a police officer if they know they are being recorded. Video evidence also protects against false accusation or frivolous lawsuits claiming police misconduct. But as a DUI defense lawyer, I appreciate video surveillance because it often answers many questions my client has about “that night.” With video, “it is what it is.” No more guesswork. No more “I think I passed.” When the State is shown that there are serious legal problems with their case, they are more apt to negotiate. And even with relatively “high BAC level” cases, it is how a client “looks on video” that can make the difference in a jury trial between “guilty” and “not guilty.”