tega cay dui Archives

SC DUI – No More Mopeds – But We Can Still Make Jokes

Mar 1, 2012 | DUI & DWI, Uncategorized

In a recent story reported by WJBF News Channel 6 posted on February 16, 2012, there is an apparent effort to “close the loophole” which allows DUI defendants to drive mopeds despite not being able to get a regular driver’s license during a suspension period. At the risk of seeming flippant, I always thought driving a moped was part of the rehabiliation process. The jokes alone would seemingly deter future bad conduct. Nevertheless, the legislature is taking active steps to deprive accused drivers from using mopeds to get around or go to work. Truly drunk drivers should be arrested and punished, especially if they injure or kill innocent victims. However, as a practicing DUI attorney, I regularly meet good, hard working individuals who have gotten caught up in the current DUI hysteria after having a drink with dinner or a beer with a friend. If you drive with any amount of alcohol on your breath and are stopped, you are going to be arrested and spend the night in jail no matter what you say or do. If you attempt to perform field sobriety tests, you will invariably fail and be arrested. If you decline any question or test, you are going to jail. You get the idea here. The best advice, pre-DUI arrest, is to simply not drink at all before driving. Even though that is not what the laws requires, it is the only protection available to prevent a wrongful DUI arrest.

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Here is the story:

Columbia, SC –A South Carolina Senate committee has approved a bill that would close a loophole in the state’s DUI law that has allowed people to drive mopeds while drunk.”It seems strange, but some magistrates have agreed that the law exempted mopeds from DUI laws,” says Sen. Larry Grooms, R-Bonneau, chairman of the Senate Transportation Committee. “So we’re absolutely closing that loophole.”

The problem is that state law does not consider mopeds to be motor vehicles. The state House passed a bill last year that would change that, to treat mopeds as motor vehicles in all circumstances. But Sen. Grooms says the House bill would lead to some unintended consequences, like allowing mopeds on Interstate highways, even though by definition a moped can’t go more than 30 miles per hour on level ground.

Mopeds are often associated with DUIs, because people who lose their driver’s licenses because of drunken driving can still drive a moped. State law says, “a person must possess a valid driver’s license … or a valid moped operator’s license … except that a person whose driver’s license has been suspended for a period of six months or less is not required to obtain a moped operator’s license or possess a valid driver’s license during the period of suspension.”

The Senate version of the bill would not change that. Sen. Grooms says, “The Senate amendment classifies mopeds as a motor vehicle only in the section of law dealing with driving under the influence.”

Moped driver Taylor Harrison, of Greenville, thinks closing the moped DUI loophole is a good idea. “Because a moped is essentially a motorcycle just powered down a little bit less. So if you drink and drive while on it, it still can be as dangerous as drinking and driving while on a motorcycle or something else,” he says.

But Billy Campbell, owner of Hawg Scooters in Columbia, says he doesn’t see a need for the change. “Clearly they don’t get all the DUI drivers,” he says. “So why are we going after mopeds?”

He says only the driver of a moped is likely to be hurt in a moped DUI accident. “There’s not going to be some mopedist that runs into a family and kills anybody,” he says.

The bill now goes to the full Senate floor, where Sen. Grooms expects it to pass. If it does, since senators changed the House version, the two bodies will have to reach an agreement on a final version.

SC DUI – Video Evidence – Prosecutors Claim DUI Laws Too Tough – On Police?

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.

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.

SC DUI – DUI Arrests – DUI Checkpoints – Officers Honored

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.

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

SC DUI – Reasonable Suspicion to Stop – Probable Cause to Arrest

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.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Amy Lynn Lapp, Appellant,

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;

(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.

SC DUI – Implied Consent Rights – Breathalyzer Testing – Fully Advised or Prejudiced

Feb 23, 2012 | DUI & DWI, Uncategorized

This recent SC Court of Appeals case discusses the importance of being properly advised prior to submitting to a breathalyzer test. When arrested, handcuffed, put in the back of a police car, and driven to jail, it is understandably confusing and even frightening. It is very difficult to make reasoned decisions under these stressful circumstances. As a result, it is critical that your attorney carefully review the total information given and whether the police followed the law before performing a breathalyzer test. If they do not follow the law or make any other legal error, you may be able to exclude any results. Our best advice to clients is to respectfully decline to submit to such testing. It is one less piece of evidence given to the State to try and convict you. Better make sure your attorney fully understands the critical importance of this aspect of your DUI case.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

David Carroll, Appellant,

South Carolina Department of Public Safety and South Carolina Department of Motor Vehicles, Defendants,

Of whom South Carolina Department of Motor Vehicles is the, Respondent.

Appeal From Administrative Law Court
John McLeod, Administrative Law Court Judge

Opinion No. 4678
Heard March 3, 2010 – Filed April 26, 2010

AFFIRMED

A. Randolph Hough, of Columbia, and Heath P. Taylor, of West Columbia, for Appellant.

General Counsel Frank L. Valenta, Jr., Deputy General Counsel Philip S. Porter, and Assistant General Counsel Linda A. Grice, all of Blythewood, for Respondent.

PER CURIAM: David Carroll appeals an Administrative Law Court (ALC) order affirming his license suspension for registering an alcohol concentration of 0.15% or greater. Carroll argues the ALC erred in finding he was not prejudiced by the arresting officer’s failure to advise him of his implied consent rights in writing as required by section 56-5-2950(B) of the South Carolina Code (Supp. 2009). We affirm.

FACTS

On May 28, 2007, State Trooper Lance Corporal Stack received a “BOLO” (be on the lookout) alert for a grey-colored vehicle reportedly “all over the road.” Trooper Stack was approaching a vehicle stopped on the shoulder of the road matching the description in the BOLO when the vehicle suddenly made a U-turn across two lanes of traffic to travel in the opposite direction. Trooper Stack turned on his blue lights and pulled the vehicle over. After noticing a strong odor of alcohol in the vehicle, he asked the driver, Carroll, to step out. Carroll’s speech was slurred, and he seemed unsteady on his feet. Trooper Stack searched the vehicle and located an open container in the vehicle. He advised Carroll of his Miranda rights,[1] and Carroll stated he understood everything.

Another State Trooper, Lance Corporal Chance, arrived on the scene and advised Carroll that he was being videotaped and audio recorded. Trooper Chance informed Carroll he could refuse to take the field sobriety tests. He administered three standard field sobriety tests, all of which Carroll failed. Trooper Stack placed Carroll under arrest for driving under the influence (DUI) and transported Carroll to the Orangeburg County Law Enforcement Complex for a DataMaster blood alcohol concentration test (BAC test).

Trooper Stack verbally advised Carroll of his implied consent rights by reading the advisement form to him. He checked Carroll’s mouth for any foreign material and then waited the requisite twenty minutes before performing the BAC test. Carroll was undecided about whether to take the test or refuse it during the twenty minute waiting period. Trooper Stack asked Carroll to stand up and blow into the DataMaster machine and Carroll complied, after which he proceeded to perform three separate BAC tests. The first and second tests showed interference, but the third BAC test registered a blood alcohol level of 0.25%. Trooper Stack did not give Carroll his implied consent warning in writing until after all three tests were completed. Carroll signed the advisement of rights, along with his driver’s license suspension, and copies of the BAC test reports.

Carroll requested an administrative hearing pursuant to section 56-5-2951(B)(2) of the South Carolina Code (Supp. 2009). During the hearing, Carroll stated he did not understand anything about the BAC testing process, and he “most likely would have refused” the BAC test if he had seen his implied consent rights in writing. However, on cross-examination, Carroll admitted he recalled informing Trooper Stack that he understood the verbal advisement of his implied consent rights. Carroll later explained that while he remembered telling Trooper Stack he understood, he did not truly understand the advisement of rights, and he was only agreeing with Trooper Stack at the time out of respect for Trooper Stack’s rank.

After the hearing, the Department of Motor Vehicles (the Department) sustained Carroll’s driver’s license suspension, finding the BAC tests were administered in compliance with the implied consent statute. Carroll appealed, and the ALC affirmed the Department’s decision. The ALC’s order noted Carroll testified he understood his implied consent rights prior to testing, and Carroll subsequently signed a copy of the implied consent advisement of rights form. The ALC concluded Carroll was not prejudiced by the lack of written notice prior to testing. This appeal followed.

STANDARD OF REVIEW

Appellate review of an ALC order must be confined to the record. S.C. Code Ann. § 1-23-610(B) (Supp. 2009). This court may not substitute its judgment for that of the ALC as to the weight of the evidence on questions of fact. Id. This court may affirm the decision, remand the case for further proceedings, or “reverse or modify the decision if the substantive rights of the petitioner have been prejudiced . . . .” Id. The petitioner suffers prejudice when the ALC’s finding, conclusion, or decision is:

(a) in violation of constitutional or statutory provisions;

(b) in excess of the statutory authority of the agency;

(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.

Id.

LAW/ANALYSIS

Carroll argues the ALC erred in affirming his license suspicion based upon its determination that Carroll was not prejudiced by Trooper Stack’s failure to advise Carroll of his implied consent rights in writing as required by section 56-5-2950(B) of the South Carolina Code (Supp. 2009). We disagree.

South Carolina’s Legislature has adopted an implied consent statute that provides:

No tests may be administered or samples obtained unless . . . prior to the commencement of the testing procedure, the person has been given a written copy of and verbally informed that:

(1) he does not have to take the test or give the samples, but that his privilege to drive must be suspended or denied for at least six months if he refuses to submit to the test and that his refusal may be used against him in court;

(2) his privilege to drive must be suspended for at least one month if he takes the test or gives the samples and has an alcohol concentration of fifteen one-hundredths of one percent or more;

(3) he has the right to have a qualified person of his own choosing conduct additional independent tests at his expense;

(4) he has the right to request an administrative hearing within thirty days of the issuance of the notice of suspension; and

(5) if he does not request an administrative hearing or if his suspension is upheld at the administrative hearing, he must enroll in an Alcohol and Drug Safety Action Program.

S.C. Code Ann. § 56-5-2950(B) (Supp. 2009) (emphasis added). Additionally, section 56-5-2950(J) provides that the failure to follow policies or procedures set forth in section 56-5-2950 will result in the exclusion from evidence of any tests results, “if the trial judge or hearing officer finds that this failure materially affected the accuracy or reliability of the test results or the fairness of the testing procedure . . . .” S.C. Code Ann. § 56-5-2950(J) (Supp. 2009).

Our court examined a violation of the implied consent statute’s “in writing” requirement in Taylor v. South Carolina Department of Motor Vehicles, 368 S.C. 33, 627 S.E.2d 751 (Ct. App. 2006) (Taylor I). Taylor heard his implied consent rights but neither read nor signed the implied consent form. Id. at 35, 627 S.E.2d at 752. This court noted Taylor needed to demonstrate both a violation of the implied consent statute and prejudice in order to warrant relief. Id. at 38, 627 S.E.2d at 754. We held Taylor was not prejudiced because “Taylor does not argue that he did not receive the implied consent rights, or that he would have provided a blood test if he had received the implied consent rights in writing.” Id.

Taylor appealed this court’s decision to the South Carolina Supreme Court, which affirmed in Taylor v. South Carolina Department of Motor Vehicles, 382 S.C. 567, 677 S.E.2d 588 (2009) (Taylor II).[2] Our Supreme Court found nothing in the implied consent statute mandated re-issuance of a license for lack of procedural compliance with the statute. Id. at 569-70, 677 S.E.2d at 590. The Supreme Court noted the remedy provided in the implied consent statute for any lack of procedural compliance is exclusion of the test results from evidence, and not reissuance of an individual’s driver’s license. Id. The Supreme Court then looked to section 56-5-2951 of the South Carolina Code (Supp. 2009), the statute authorizing the Department to suspend a driver’s license, and similarly concluded nothing in that statute mandates reissuance of a driver’s license upon failure to procedurally comply with section 56-5-2950. Id. at 570-71, 677 S.E.2d at 590. Section 56-5-2951(F) provides:

An administrative hearing must be held after the request for the hearing is received by the Division of Motor Vehicle Hearings. The scope of the hearing is limited to whether the person:

(1) was lawfully arrested or detained;

(2) was given a written copy of and verbally informed of the rights enumerated in [s]ection 56-5-2950;

(3) refused to submit to a test pursuant to [s]ection 56-5-2950; or

(4) consented to taking a test pursuant to [s]ection 56-5-2950, and [several conditions relating to the administration of the test].

Thus, our Supreme Court held the “in writing” requirement was merely one of four factors to examine “with an eye toward prejudice” pursuant to section 56-5-2951(F). Taylor II, 382 S.C. at 571, 677 S.E.2d at 590. They further noted “[i]f the Legislature had intended the lack of written notice (or any other factor) to be a fatal defect, it could have said so in the statute.” Id. at 570, 677 S.E.2d at 590 (citation omitted). The Supreme Court found this court “properly applied a prejudice analysis” and correctly found no prejudice resulted from the lack of written notice when Taylor was verbally advised of the implied consent warning. Id. at 571, 677 S.E.2d at 590.

We believe the case sub judice is distinguishable from Taylor I. Unlike Taylor, Carroll testified he likely would have refused the BAC test had he received his implied consent rights in writing, as required by section 56-5-2950(B). However, we defer to the ALC’s factual findings regarding whether Carroll verbally received and understood his implied consent rights prior to testing. SeeS.C. Code Ann. § 1-23-610(B) (Supp. 2009). We believe substantial evidence supported the ALC’s conclusion that Carroll was not prejudiced by the lack of written notice. See id. Furthermore, we are bound by our Supreme Court’s holding in Taylor II, suggesting no prejudice resulted from the lack of written notice when an individual was verbally advised of his or her implied consent rights. See Taylor II, 382 S.C. at 571, 677 S.E.2d at 590 (“Given that it is undisputed Taylor was advised of the implied consent warning, the Court of Appeals properly found he suffered no prejudice from the officer’s lack of written notice.”).

Accordingly, we affirm the ALC’s decision affirming Carroll’s license suspension.

AFFIRMED.

SHORT, WILLIAMS, and LOCKEMY, JJ., concur.

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

[2] Our Supreme Court affirmed in a three-two split. Taylor II, 382 S.C. 567, 567-71, 677 S.E.2d 588, 589-91 (2009).

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