SC DUI Attorney – Ignition Interlock Coming – For All of Us

Apr 21, 2012 | DUI & DWI, Uncategorized

The SC DUI Attorneys at Robert J. Reeves P.C. strongly support safe and responsible driving, of course. However, as lawyers and citizens, we are concerned about the continuing and ongoing erosion of our freedoms. The bad acts of a few should not force punishment for the rest of us. Ignition interlock devices have inherent flaws and are subject to false positive readings. In that event, you cannot get home or go to work. Additionally, the added costs of such a device is significant. Cars are already too expensive. Rather than requiring everyone to “prove” they are safe to drive, why don’t we hold those who are truly impaired accountable.

The clients we represent are good people who have been falsely accused of “drunk driving.” They went out to dinner with their spouse or had a beer with friends and ended up in jail for the night because they had “alcohol on their breath.” If you have been wrongfully charged with a SC DUI, take a look at our website www.rjrlaw.com. We welcome the opportunity to review your case. Compare our attorneys’ credentials to any other firm. Then, call us at 877-374-5999 for a private consultation.

 

After the Party, a Car That Takes Away Your Keys

By Joseph B. White

Friends don’t let friends drive drunk. In the future, your car could be that friend.

The technology exists to have a car refuse to start when it senses the driver has been drinking. But as Joseph White reports on Lunch Break, it’s very controversial.

Researchers working with the Alliance of Automobile Manufacturers and the National Highway Traffic Safety Administration are developing technology that could be built into a car’s dashboard or controls to check a driver’s blood-alcohol level and refuse to start if above the legal limit. The effort, which began in 2008, is officially known as the Driver Alcohol Detection System for Safety, or DADSS for short.

“We’ve made more progress, faster, than we expected,” says Rob Strassburger, vice president for vehicle safety at the alliance. Contributing to advances is national-security research aimed at developing remote sensors that can detect biological or other chemical agents. Also, researchers say that fingertip sensors used in hospitals to monitor blood-sugar levels and other physical indicators are useful in detecting blood-alcohol levels, too.

In an effort to reach high-risk drivers, groups aiming to stop drunk driving often take cars involved in fatal crashes to schools. Shown here, a 2010 display at Sherwood High School in Sandy Spring, Md.

It sounds futuristic and it will likely be years—eight to 10 by Mr. Strassburger’s estimate—before cars and trucks with built-in blood-alcohol detectors are for sale. The next phase, additional years off, is a commercially produced vehicle with the technology to drive a tipsy owner home autonomously.

Whether drivers will be comfortable with cars that could potentially override their commands is another matter. Already, a restaurant group is lobbying against the technology.

The arguments for pursuing cars that can detect drunk drivers revolve around the stubborn persistence of alcohol as a factor in fatal car crashes. In 1982, about 49% of drivers killed in car wrecks had blood-alcohol levels of 0.08 or higher. By 1994, that percentage had dropped to about 33%, where it has since plateaued, the Insurance Institute for Highway Safety found in a study of federal data from 1982 to 2010.

Technology to disable a car if the driver is intoxicated already exists, but it is currently used primarily as a punitive measure for people caught with blood-alcohol levels over the legal limit.

About 16 states now require people convicted of driving with blood-alcohol levels over the 0.08 legal limit to install so-called alcohol interlocks in their vehicles. These clunky systems require drivers to blow into a tube to verify that they are sober before the car can start. Nobody in the auto industry is proposing to offer such systems as factory-installed equipment. Instead, sensors would be unobtrusive, perhaps embedded in a starter button or a shift lever.

Enthusiasm for the potential of alcohol-detection technology is reflected in a proposed federal transportation bill. In it is a measure that would give the NHTSA’s alcohol-detector program $24 million over two years—a sum that could allow the agency by 2013 to equip a fleet of 100 or more cars with prototypes of two types of alcohol detectors. One would measure the alcohol in the driver’s breath. The other would use touch technology to take a reading from the driver’s skin, likely the fingertip used to activate a starter button.

The counter argument, at this early stage, is coming most loudly from the organization that represents the restaurant industry in Washington, D.C. “It is going to create a zero tolerance environment,” says Sarah Longwell, managing director of the American Beverage Institute.

Associated Press

BREATH TEST. About 16 states now require people convicted of driving with blood alcohol levels over the legal limit to install alcohol interlocks in their vehicles, like the one above. To use it, the driver blows into a tube to verify sobriety before the car can start. Researchers are developing prototypes of two built-in systems. One would measure the alcohol in the driver’s breath. The other would take a reading from the driver’s skin, likely the fingertip.

“We believe there’s nothing unsafe or illegal about having a glass of wine with dinner and driving home,” Ms. Longwell says. Her group’s concern is that onboard alcohol detectors will have to be calibrated to shut down the car at levels well below 0.08, to avoid the liability risk of a driver getting in the car at just below the limit, and then exceeding the limit during the drive home as the last drink enters the bloodstream.

In a Sept. 30, 2011, letter to the American Beverage Institute, the program manager for the alcohol-detection research program said the systems would not be set to prevent operation of the car at levels below 0.08, and would provide for a retest in the case a driver is locked out.

Ultimately, the future of onboard alcohol detectors will come down to convenience and culture.

NHTSA officials have said they have no plans to mandate onboard alcohol-detection systems in cars. The agency got a black eye in the 1970s when it mandated the installation of so-called seat belt interlocks that made it impossible to start a car until the driver fastened the seat belt. The uproar from consumers moved Congress to pass legislation forbidding seat-belt interlocks that stands to this day.

Still, the alcohol-detection system is a further example of how technology promises to change the relationship people have with their automobiles. If auto makers and safety regulators do attempt to encourage adoption of these systems, they’ll need to design them so that consumers don’t just want to rip them out. It could be that the first factory-installed alcohol interlocks are ordered by corporate or rental-fleet operators—who can make acceptance of the technology a condition of using the vehicle.

“We have to develop a technology that lives in a car for 20 years and works flawlessly,” Mr. Strassburger says. “That’s a pretty high bar.”

 

SC DUI Attorney – Miranda Warnings – New Decision on Old Rules

Apr 16, 2012 | DUI & DWI, Uncategorized

This recent SC Court of Appeals case will be considered a major change in SC DUI law. However, it really is not. “Miranda warnings” are widely known by the public thanks to television shows and movies showing arrests of criminal defendants. The actual case has been around for decades. No one is really certain from where this “fifth Miranda warning” originated, but the right to terminate police interogation by asking for a lawyer has never been expressly a part of Miranda. Rather, it is largely incorporated into the first “Miranda” right to remain silent. Nevertheless, the Court of Appeals has now formally clarified this apparent confusion and resolved the issue. If this case is pursued to the SC Supreme Court, there is little doubt this decision will be affirmed.

The criminal attorneys at Reeves, Aiken & Hightower, LLP, focus their practice on SC DUI and NC DWI. In addition to the years of criminal and civil case experience, the firm also highlights Tyler Burns who is a former Sixteenth Circuit (York County) DUI prosecutor. Mr. Burns now takes his prosecutor’s evaluation of cases to defend those individuals who have been charged with a DUI or DUAC. Our firm encourages potential clients to carefully compare our lawyers’ credentials to any other law practice. Then call us today at 877-374-5999 for a private consultation. For more information, please visit our website at www.rjrlaw.com.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Appellant,

v.

Mark Allen Hoyle, Respondent.

Appeal From York County
John C. Hayes, III, Circuit Court Judge

Opinion No.  4963
Heard March 19, 2012 – Filed April 4, 2012

REVERSED

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General William M. Blitch, Jr., all of Columbia; and Solicitor Kevin Brackett, of York, for Appellant.

John M. Foster, of Rock Hill, for Respondent.

PIEPER, J.: This appeal arises out of Appellant Mark Allen Hoyle’s magistrate’s court conviction for driving under the influence (DUI).  The circuit court found the magistrate erred by failing to suppress the incident site video recording due to incomplete Miranda^[1] warnings; consequently, the circuit court remanded the case to the magistrate’s court for a new trial.  On appeal, the State argues the circuit court erred in ordering the suppression of the video recording because the arresting officer gave Hoyle sufficient Miranda warnings in compliance with section 56-5-2953 of the South Carolina Code (Supp. 2011).  We reverse.

FACTS

On March 21, 2009, Hoyle was charged with DUI. Upon his arrest, the officer advised Hoyle of the following: (1) he had the right to remain silent; (2) anything he said could be used against him in a court of law; (3) he had the right to an attorney; and (4) if he could not afford an attorney, one would be appointed for him prior to questioning.  The officer did not advise Hoyle that he had the right to terminate the interrogation at any time and to not answer any further questions. Hoyle was convicted of DUI.  Hoyle appealed his conviction, arguing the magistrate’s court erred in refusing to dismiss the charge, or in the alternative, erred in failing to suppress certain evidence, because (1) he was not fully advised of his Miranda rights and (2) certain audio portions of the sequence of events were missing.[2]  At the hearing before the circuit court, Hoyle relied on State v. Kennedy, 325 S.C. 295, 479 S.E.2d 838 (Ct. App. 1996), and argued the incident site video recording should be suppressed because it did not contain the officer instructing Hoyle of the Miranda warning that a suspect has the “right to terminate the interrogation at any time and not to answer any further questions.”  The circuit court agreed, remanded for a new trial, and ordered the incident site video recording be suppressed.  This appeal followed.

STANDARD OF REVIEW

In a criminal appeal from the magistrate’s court, the circuit court does not review the matter de novo; rather, the court reviews the case for preserved errors raised by appropriate exception.  Town of Mt. Pleasant v. Roberts, 393 S.C. 332, 341, 713 S.E.2d 278, 282 (2011).  The circuit court “may either confirm the sentence appealed from, reverse or modify it, or grant a new trial.”  S.C. Code Ann. § 18-3-70 (Supp. 2011).  “The appellate court’s review in criminal cases is limited to correcting the order of the circuit court for errors of law.”  State v. Johnson, 396 S.C. 182, 186, 720 S.E.2d 516, 518 (Ct. App. 2011).

LAW/ANALYSIS

The State argues the circuit court erred in suppressing the incident site video recording and remanding for a new trial because Hoyle was given appropriate Miranda warnings in compliance with section 56-5-2953.  We agree.

“‘All rules of statutory construction are subservient to the one that the legislative intent must prevail if it can be reasonably discovered in the language used, and that language must be construed in the light of the intended purpose of the statute.'”  State v. Sweat, 386 S.C. 339, 350, 688 S.E.2d 569, 575 (2010) (quoting Broadhurst v. City of Myrtle Beach Election Comm’n, 342 S.C. 373, 380, 537 S.E.2d 543, 546 (2000)). The court should look to the plain language of the statute.  Binney v. State, 384 S.C. 539, 544, 683 S.E.2d 478, 480 (2009).  If the language of a statute is unambiguous and conveys a clear and definite meaning, then the rules of statutory interpretation are not needed and the court has no right to impose a different meaning.  State v. Gaines, 380 S.C. 23, 33, 667 S.E.2d 728, 733 (2008).

The applicable provisions of the statute in question follow:

(A) A person who violates Section 56-5-2930, 56-5-2933, or 56-5-2945 must have his conduct at the incident site and the breath test site video recorded.

(1)(a) The video recording at the incident site must:

(i) not begin later than the activation of the officer’s blue lights;

(ii) include any field sobriety tests administered; and

(iii) include the arrest of a person for a violation of Section 56-5-2930 or Section 56-5-2933, or a probable cause determination in that the person violated Section 56-5-2945, and show the person being advised of his Miranda rights.

S.C. Code Ann. § 56-5-2953(A)(1)(a) (Supp. 2011).

To give force to the Constitution’s protection against compelled self-incrimination, the United States Supreme Court established in Miranda “certain procedural safeguards that require police to advise criminal suspects of their rights under the Fifth and Fourteenth Amendments before commencing custodial interrogation.”  Duckworth v. Eagan, 492 U.S. 195, 201 (1989).  The Miranda court held that a suspect in custody must be warned of the following rights:

He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

384 U.S. at 479.

The court also explained that “[o]nce warnings have been given, the subsequent procedure is clear.  If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.”  Id. at 473-74.  Furthermore, if the suspect decides, after receiving the Miranda warnings, that he wishes to remain silent, the custodial officers must “scrupulously honor[]” his “right to cut off questioning.”  Michigan v. Mosley, 423 U.S. 96, 104 (1975).

In State v. Kennedy, this court cited Miranda, stating:

A suspect in custody may not be subjected to interrogation unless he is informed that: he has the right to remain silent; anything he says can be used against him in a court of law; he has a right to the presence of an attorney; if he cannot afford an attorney, one will be appointed for him prior to any questioning, if he so desires; and he has the right to terminate the interrogation at any time and not to answer any further questions.

325 S.C. 295, 303, 479 S.E.2d 838, 842 (Ct. App. 1996), aff’d as modified, 333 S.C. 426, 510 S.E.2d 714 (1998).

The issue in Kennedy was whether the defendant voluntarily waived his Miranda rights.  Id. at 306, 479 S.E.2d at 844.  The court did not discuss the sufficiency of the warnings given, and the court did not discuss whether the officer informed the defendant of his right to terminate the interrogation. Id. at 306-09, 479 S.E.2d at 844-46.  On the other hand, in State v. Cannon, police gave the defendant the following Miranda warning:

You have the right to remain silent; anything you say can and will be used against you in a court of law; you have the right to talk to a lawyer and have him present with you while you are being questioned; if you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish one.

260 S.C. 537, 542-43, 197 S.E.2d 678, 680 (1973), cert. denied, 414 U.S. 1067 (1973).  The defendant appealed, arguing the warnings were insufficient and should have included the following language: “If you decide to answer any questions now without a lawyer present, you will still have the right to stop answering at any time or until you talk to a lawyer.”  Id. at 543, 197 S.E.2d at 680.  The South Carolina Supreme Court disagreed and found that Miranda does not require an officer to inform a suspect of his right to stop answering questions at any time. Id.

The language in Miranda is clear that the right to terminate the interrogation at any time and to not answer any further questions is not a required Miranda warning.  Miranda only requires four warnings, and the United States Supreme Court did not include the right to terminate the interrogation at any time as one of the four warnings.  See Miranda, 384 U.S. at 479 (holding a suspect in custody must be warned prior to any questioning that “he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires”).  Furthermore, pursuant to Miranda, the right to terminate an interrogation arises after warnings are given.  See id. at 473-74 (“Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.”).

Recent United States Supreme Court decisions interpreting Miranda also recognize Miranda includes four rights.  See Berghuis v. Thompkins, 130 S. Ct. 2250, 2259 (2010) (quoting Miranda for the proposition that a suspect “must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires” (internal quotation marks omitted));  Florida v. Powell, 130 S. Ct. 1195, 1204 (2010) (noting that “[t]he four warningsMiranda requires are invariable, but this Court has not dictated the words in which the essential information must be conveyed”).

Our interpretation of Miranda and Cannon is also consistent with other jurisdictions that have considered the issue and determined that under Miranda an officer is not required to inform a suspect of a right to stop questioning after it has begun.  See United States v. Lares-Valdez, 939 F.2d 688, 690 (9th Cir. 1991) (finding that the Miranda court contemplated the right to cease questioning and declined to include it among the warnings necessary to protect a suspect’s Fifth and Sixth Amendment rights); Mock v. Rose, 472 F.2d 619, 622 (6th Cir. 1972) (holding Miranda warnings do not include the right to stop answering questions at any time);  Flannagin v. State, 266 So. 2d 643, 651 (Ala. 1972) (holding an officer is not required under Miranda to inform a suspect that he has the right to stop questioning at any time because “[t]he right of an accused to exercise [the four Miranda] rights at any time during the proceeding is not a separate right of which he must be independently informed.  It is, instead, the practical result of his exercising those other rights at a time of his choosing”); Katzensky v. State, 183 S.E.2d 749, 751 (Ga. 1971) (“Miranda does not require the officers to advise the individual that he may withdraw the waiver of his constitutional rights at any time during the interrogation.”).

For the bench, bar, and law enforcement, we recognize a need may exist to clarify any perceived confusion about the reach of Kennedy.[3]   Regarding the language at issue herein, we interpret that part of Kennedy as being dicta.[4] Moreover, even if we were to interpret the reach of Kennedy otherwise, the South Carolina Supreme Court’s opinion in Cannon serves as the controlling precedent for purposes of our review.  While one panel of this court cannot overturn prior published precedent of another panel of this court absent en banc review, we need not do so in order to apply controlling South Carolina Supreme Court precedent.  Based on the foregoing, we find that the South Carolina Supreme Court does not interpret Miranda to require an oral or written warning on the right to terminate an interrogation at any time and to not answer any further questions.[5]

A review of the incident site video recording indicates the officer gave Hoyle all four warnings required by Miranda; thus, the officer fully complied with both Miranda and section 56-5-2953. See S.C. Code Ann. § 56-5-2953(A)(1)(a)(iii) (Supp. 2011) (“The video recording at the incident site must . . . show the person being advised of his Miranda rights.”).  Therefore, we reverse the circuit court’s order and reinstate the conviction.

CONCLUSION

Accordingly, the order of the circuit court is hereby

REVERSED.

KONDUROS and GEATHERS, JJ., concur. 

[1] Miranda v. Arizona, 384 U.S. 436 (1966).

[2] To the extent this second issue was independent of the Miranda issue, that issue was neither ruled on by the circuit court, nor argued on appeal to this court.  In fact, Hoyle clarified his argument before the circuit court in stating “the only question I submit to this court that they have to decide, that you have to decide, Your Honor, is whether [Hoyle is] entitled to dismissal or a remand for further proceedings for suppression of evidence for deficient Miranda.”

[3] See Op. S.C. Att’y Gen., 2009 WL 1968618 (June 4, 2009) (responding to an inquiry by the South Carolina Sheriffs’ Association as to whether Kennedy affords a fifth right that must be included in a Miranda warning).

[4] Notably, subsequent opinions from this court have cited Kennedy when stating the rule on Miranda warnings; however, no case cites the language in Kennedy that an officer must inform a suspect of the right to terminate the interrogation at any time and to not answer any further questions.  See State v. Breeze, 379 S.C. 538, 544, 665 S.E.2d 247, 250 (Ct. App. 2008); State v. Lynch, 375 S.C. 628, 633 n.5, 654 S.E.2d 292, 295 n.5 (Ct. App. 2007).

[5] Hoyle asserted various policy arguments in support of expanded warnings in South Carolina; however, we reject those arguments.