Jan 7, 2012 | DUI & DWI, Uncategorized
In South Carolina, all police vehicles are required to have video recording in their cars. Police like video because it offers additional protection for them at the scene. Criminals may be less likely to assault them if they realize they are being recorded. Additionally, claims of undue force or excessive force can be reviewed objectively.
As a criminal defense attorney, I like video recording because it protects my clients and shows what really happens at the roadside. Everyone knows what “drunk” looks like. The testimony by the officer will be remarkably similar to every other case, and any testimony by a defendant will be viewed as self-serving. Video “keeps everyone honest.” A jury can see for themselves every aspect of the stop and arrest. How does the defendant appear? Is his speech slurred? Does she talk coherently? Are they steady on their feet? Do they stumble or fall? How do they perform the roadside “field sobriety tests”? In short, do they appear “intoxicated”?
The following is the relevant portion of the actual statuory law:
SECTION 56-5-2953. Incident site and breath test site video recording.
(A) A person who violates Section 56-5-2930, 56-5-2933, or 56-5-2945 must have his conduct at the incident site and the breath test site video recorded.
(1)(a) The video recording at the incident site must:
(i) not begin later than the activation of the officer’s blue lights;
(ii) include any field sobriety tests administered; and
(iii) include the arrest of a person for a violation of Section 56-5-2930 or Section 56-5-2933, or a probable cause determination in that the person violated Section 56-5-2945, and show the person being advised of his Miranda rights.
(b) A refusal to take a field sobriety test does not constitute disobeying a police command.
(2) The video recording at the breath test site must:
(a) include the entire breath test procedure, the person being informed that he is being video recorded, and that he has the right to refuse the test;
(b) include the person taking or refusing the breath test and the actions of the breath test operator while conducting the test; and
(c) also include the person’s conduct during the required twenty-minute pre-test waiting period, unless the officer submits a sworn affidavit certifying that it was physically impossible to video record this waiting period.
(3) The video recordings of the incident site and of the breath test site are admissible pursuant to the South Carolina Rules of Evidence in a criminal, administrative, or civil proceeding by any party to the action.
At Reeves, Aiken & Hightower LLP, our attorneys have over 60 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 effective 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 charge to reckless driving. Call us today for a free attorney case review of your particular situation. We are here to help. www.rjrlaw.com
Jan 2, 2012 | DUI & DWI, Uncategorized
While researching current updates on breathalyzers, I came across this sales pitch for a “personal” model. Frankly, it is difficult to imagine a market for such a device. But, the sales information was very revealing as to how utterly unreliable these “alcohol breath testing” machines really are. I have highlighted those sections which are essentially disclaimers. See for yourself. Here’s the article I found:
“If you’ve been searching for the best breathalyzer to suit your personal alcohol tester needs, here are a few considerations you should keep in mind before buying.
The best breathalyzer for any individual who wants to test their blood alcohol content (BAC) on a regular basis is one with a fuel cell sensor. The fuel cell sensor technology is normally found on professional breathalyzer devices. The reason a fuel cell model is considered the best breathalyzer technology is due to it’s superior accuracy over other breathalyzer sensors such as the semiconductor. While the professional breathalyzer is created for professional use by law enforcement, clinics and other professional environments, many models are FDA 501(k) approved for sale and use by the general public.
Generally speaking, the fuel cell breathalyzers range in price from approximately $120 to upwards of $400. Although with that said, the better semiconductor models are near the $100 price level so it may, in some cases, make more sense to go with the professional grade breathalyzer.
The greater accuracy of the professional, fuel cell (or best) breathalyzer is partially dependent on the sensor’s ability to detect the difference between alcohol and higher acetone levels which can be found in individuals with diabetes or those on low-calorie diets. Also, professional breathalyzers feature the ability to give the same result on the same individual when testing repeatedly. In other words, if the same person blows into the mouthpiece in test after test, the results will be similar more often from a fuel cell sensor than a semiconductor model.
The best breathalyzer for your needs will also depend on the device’s ability to pull in an adequate deep lung breath sample. Many professional and personal breathalyzers feature a built “fan” of sorts that will pull the sample in and thus assure the proper deep lung sample is acquired. Many will also beep or otherwise alert the testing individual if the sample is incomplete and testing needs to be repeated.
Finding the best breathalyzer for your needs may also depend on recalibration requirements. The majority of both personal breathalyzer and professional breathalyzer models need to be returned to the manufacturer after a number of tests so that they can be re-calibrated and shipped back. This is usually done ever 1,000 tests (some don’t require recalibration for 1,500 tests) at a cost of about $30-$50. For individuals, it’s likely that the recalibration needs will be a lot less than those devices used for professional use. Either way, it is important, for the greatest accuracy that the devices are re-calibrated and that testing is done as directed by the manufacturer.”
As you can see, the manufacturers tell the buying public that their devices are not fool-proof. In fact, the results are very dependent on a number of variables. And this is with a brand new breathalyzer right out of the box. With these very difficult economic times, almost every county and city police department budget is under review. There are simply no funds for new equipment, and I fear not enough money for proper maintenance of the equipment they have. Nevertheless, courts and legislatures currently allow breathalyzer results into evidence and treat them as absolutely accurate without serious question. I am reminded that “lie detector” tests were similarly accepted for years but are no longer deemed reliable enough for prosecution. I hope that one day the “breathalyzer” will go the way of the “lie detector.” The only truly accurate test is a blood alcohol test performed by a licensed health professional and certified lab facilities.
If you are arrested for suspicion of drunk driving (DUI / DWI), ask for a blood alcohol test and then consult an experienced DUI / DWI attorney. At Reeves, Aiken & Hightower LLP, our 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. We are not afraid to go to Court and often do. Don’t settle for a lawyer who only wants to try to reduce your DUI charge to reckless driving. Compare our attorneys’ credentials to any other firm. Then call us for a private consultation of your case. www.rjrlaw.com
Dec 18, 2011 | Brain Injury/Head Trauma, Car Accidents, DUI & DWI, News, Personal Injury, Uncategorized, Workers' Compensation
The National Trial Lawyers is a national organization composed of the top 100 trial lawyers from each state. Membership is obtained through special invitation and is extended only to those attorneys who exemplify superior qualifications of leadership, reputation, influence, stature, and profile as civil plaintiff (accidents, workers’ compensation, brain injury, wrongful death) or criminal defense (DUI, DWI, felonies) trial lawyers. It is the mission of The National Trial Lawyers to promote excellence in the legal profession through practical educational programs, networking opportunities, and legal publications that deal with current issues facing the trial lawyer. Mr. Robert J. Reeves of the firm Reeves, Aiken & Hightower, LLP, has been invited to join this group from South Carolina for 2012.
Jun 22, 2011 | DUI & DWI, Uncategorized
What are those Tests the Cops Do?
It is important to know that when an officer stops someone and suspects they have been drinking and driving, that officer is gathering evidence to use in court. Many do not realize an officer is taking notes of everything they observe after stopping someone. Officers will compile a report detailing everything, how the driver looks, if they have red glassy eyes, odors of alcohol or even marijuana. The most important evidence the officer will document are the field sobriety tests and portable breathalyzer.
Commonly officers will ask the driver to perform three tests:
- 1) the walk and turn
- 2) one-leg stand
- 3) horizontal gaze nystagmus
The walk and turn is when the officer asks the driver to walk 9 steps forward and 9 steps back. The one-leg stand is similar to the walk and turn as it requires balancing. The officer will ask the driver to raise one leg and count out-loud for about 30 seconds. The horizontal gaze nystagmus test is where the officer moves his pen back and forth checking the drivers eyes. One last method of gaining evidence is when the officer requests the driver to submit to a portable breathalyzer on the roadside.
What the Police Don’t Want You to Know
The U.S. Constitution affords everyone many rights and it is vital to act upon your rights because it could make the difference between a conviction and a dismissal. The most important right when interacting with a police officer is the right to remain silent. You are not required to answer any questions the officer may ask you as it relates to drinking. Officers will routinely question drivers they believe to be impaired. The officer may ask the driver 3, 4, or 5 how much they have had to drink, where they have been, and what they have been drinking. Officer’s do this as a way of wearing down the defendant. The more times they ask the more information they may find out. The most essential right, someone can invoke after they have been drinking and driving is the right to refuse.
A driver who is stopped upon suspicion of drunk driving has the right to refuse all the field sobriety tests and breathalyzer at the roadside. By refusing all of these tests, the prosecutor will have less evidence to use in court. It must be noted, though, if the driver refuses the breathalyzer at the police station, the officer can get a warrant to draw the driver’s blood. Also, if the breathalyzer at the station is refused, the NC DMV will suspend your driving privileges or license for 12 months, if you are pulled over you will be given a DWLR. If the driver does refuse the breathalyzer at the station, it will be tougher for the prosecutor to prove the driver was in fact impaired because there will be no record of the driver’s BAC. Finally if the driver refuses the breathalyzer, the driver has the right to appeal the suspension from the DMV. In order to exercise this right, the driver must write a letter to the DMV within 10 days of their arrest, requesting a DMV Refusal Hearing. If a driver makes this request, then their driving privileges or license will remain active pending a hearing on the refusal.
With the legal limit in North Carolina being a .08 BAC, it is very easy to be above the limit and not even realize it. There are even rumblings that the NC legislature may lower the legal limit again.
If you have been charge with a DUI, contact the lawyers of Reeves, Aiken, & Hightower.
