Feb 4, 2012 | DUI & DWI, Uncategorized
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. 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. We welcome an opportunity to sit down for a private consultation to review your case. Call us today. www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Supreme Court
South Carolina Department of Motor Vehicles, Respondent,
v.
Osier Palmer Blackwell, III, Appellant.
Appeal from Richland County
Carolyn C. Matthews, Administrative Law Court Judge
Opinion No. 26850
Heard May 13, 2010 – Filed August 9, 2010
AFFIRMED
Ricky Keith Harris, of Spartanburg, for Appellant.
Philip S. Porter, Frank L. Valenta, Jr., Linda A. Grice, of Blythewood, for Respondent.
CHIEF JUSTICE TOAL: Osier P. Blackwell, III (Appellant) appealed the administrative law court’s (ALC) decision that a conviction for driving with an unlawful alcohol concentration constitutes a major violation under the habitual traffic offender statute found at S.C. Code Ann. § 56-1-1020. We certified the case pursuant to Rule 204(b), SCACR, and affirm.
FACTS/PROCEDURAL BACKGROUND
In 2003, Appellant twice was cited for and convicted of driving while under suspension. Appellant was cited for driving with an unlawful alcohol concentration (DUAC) in 2006, but not convicted until 2008. In July 2008, Appellant received an official Notice of Declaration of Habitual Offender Status from the Department of Motor Vehicles (DMV), which included a five year suspension of his driver’s license.
Appellant requested a hearing, and the Division of Motor Vehicles Hearings (DMVH) rescinded Appellant’s suspension. The DMVH found that DUAC is not a major offense under the habitual traffic offender statute because it does not include the material element of establishing the offender was under the influence of alcohol. Thus, DUAC does not equate to the enumerated offense in section 56-1-1020 of operating or attempting to operate a motor vehicle while under the influence of alcohol.
The DMV appealed to the ALC, which reversed the DMVH. South Carolina Code section 56-5-2950(b)(3) says that if a person has an alcohol concentration of .08% or greater, then it may be inferred that person is under the influence of alcohol. The ALC reasoned that because the DUAC statute requires a person’s alcohol concentration to be at .08% or above, you can infer “under the influence” from a DUAC conviction. Thus, if a person is convicted of DUAC, it is a major violation of the habitual traffic offender statute because it equates to operating a motor vehicle while under the influence of alcohol. The ALC reversed the DMVH and reinstated Appellant’s suspension. Appellant appealed, and we certified the case.
STANDARD OF REVIEW
In an appeal from the ALC’s decision, the Administrative Procedures Act provides the appropriate standard of review. S.C. Code Ann. § 1-23-610(B) (Supp. 2008). This Court will only reverse the ALC’s decision if it is:
(a) in violation of constitutional or statutory provisions;
(b) in excess of the statutory authority of the agency;
(c) made upon unlawful procedure;
(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.
ANALYSIS
Appellant argues the ALC erred in reversing the DMVH and reinstating his suspension. We disagree.
South Carolina’s habitual offender law states that a person who has been convicted of committing at least three described offenses within a three year period is an habitual traffic offender. S.C. Code Ann. § 56-1-1020 (2006). Included in the list is “operating or attempting to operate a motor vehicle while under the influence of intoxicating liquors, narcotics or drugs.” Id. § 56-1-1020(a)(2).
Appellant was convicted of driving with an unlawful alcohol concentration under section 56-5-2933, which states that it is “unlawful for a person to drive a motor vehicle within this State while his alcohol concentration is eight one-hundredths of one percent or more.” This offense is distinct from “operating a motor vehicle while under influence of alcohol or drugs,” which requires the driver to be under the influence of alcohol to the extent that the driver’s faculties are “materially and appreciably impaired.” Id. § 56-5-2930.
Appellant argues that because the habitual offender statute uses the language “under the influence,” an offense that does not require a showing of being “under the influence” may not be counted against him under the statute. The ALC, on the other hand, found that DUAC is comparable to operating a motor vehicle while intoxicated and thus is sufficient for the habitual offender statute. We agree.
Specifically, the ALC found that while “under the influence” is not defined within the statutes, section 56-5-2950(b)(3) states that if a driver’s alcohol concentration is .08% or higher, it may be inferred that the driver is under the influence of alcohol. Thus, because a driver must have an alcohol concentration of at least .08% to be convicted of DUAC, an inference of “under the influence” may be inferred from a DUAC conviction. That permissible inference, along with the broad and inclusive nature of the habitual offender statute,[1] supports the ALC’s ruling that a conviction of DUAC is contemplated by and qualifies under the habitual offender statute.
The offense of DUAC carries a permissible inference of being under the influence. A conviction under section 56-5-2930 requires a driver to be under the influence to a certain extent. A driver may have an alcohol concentration sufficient to support a conviction of DUAC and trigger the inference, but his faculties may not be impaired to the degree required for a conviction under section 56-5-2930. Both offenses are predicated upon a driver operating a vehicle while under the influence of alcohol, albeit to potentially different extents. The plain language of the habitual offender statute only requires a driver to be under the influence – it does not have the higher standard of section 56-5-2930. Therefore, a conviction for DUAC qualifies as a major violation under the habitual offender statute.
CONCLUSION
For the above reasons, the ALC’s decision that a conviction for driving with an unlawful alcohol concentration constitutes a major violation under the habitual traffic offender statute is affirmed.
HEARN, J. and Acting Justice James E. Moore, concur. KITTREDGE, J., dissenting in a separate opinion in which PLEICONES, J., concurs.
JUSTICE KITTREDGE: I respectfully dissent. The habitual traffic offender statute defines a “habitual offender” as a person who has:
(a) Three or more convictions, singularly or in combination of any of the following separate and distinct offensesarising out of separate acts:
(1) Voluntary manslaughter, involuntary manslaughter or reckless homicide resulting from the operation of a motor vehicle;
(2) Operating or attempting to operate a motor vehicle while under the influence of intoxicating liquor, narcotics or drugs;
(3) Driving or operating a motor vehicle in a reckless manner;
(4) Driving a motor vehicle while his license, permit, or privilege to drive a motor vehicle has been suspended or revoked, except a conviction for driving under suspension for failure to file proof of financial responsibility;
(5) Any offense punishable as a felony under the motor vehicle laws of this State or any felony in the commission of which a motor vehicle is used;
(6) Failure of the driver of a motor vehicle involved in any accident resulting in the death or injury of any person to stop close to the scene of such accident and report his identity;
S.C. Code Ann. § 56-1-1020(a) (2006) (emphasis added).
The habitual offender statute lists six specific offenses that “count” towards habitual offender status. Indeed, the legislature elected to limit qualifying offenses to the enumerated “separate and distinct offenses.” The enumerated offenses set forth in sections (1), (2), (3), (4) and (6), refer to specific statutory offenses,[2] and section (5) incorporates the provisions of the motor vehicle laws punishable as a felony.
Given the clear statutory language, I take the view that if an offense is not one of the six listed in the habitual offender statute, the conviction may not “count” towards habitual offender status. The offense of driving with an unlawful alcohol concentration (DUAC) is not included as one of the section 56-1-1020(a) offenses. I thus conclude the offense of DUAC is not a qualifying offense under section 56-1-1020(a) for habitual offender status.
Moreover, I disagree with the Court’s attempt to satisfy the statute by equating the offense of DUI with the offense of DUAC. Under South Carolina law, DUI and DUAC are different offenses. See § 56-5-2930 and § 56-5-2933. The element of “driving under the influence” is not present in an offense for DUAC. I respectfully disagree with the majority’s analysis which bootstraps § 56-5-2950(b)(3), a permissible inference provision located in an entirely different statute, to the DUAC statute in order to reach the conclusion that a conviction for DUAC qualifies as a conviction of “operating or attempting to operate a motor vehicle while under the influence.”
I certainly understand the policy rationale for including the offense of DUAC as a qualifying offense for habitual traffic offender status, but that determination lies with the legislature and not this Court.
I vote to reverse the decision of the ALC.
PLEICONES, J., concurs.
[1] The legislative declaration of policy also supports the ALC’s reading of the habitual offender statute. See id.§ 56-1-1010 (stating the policy behind the legislation is to provide for the safety of people on public roads, to deny driving privileges to those drivers who demonstrate indifference to traffic laws, and to discourage drivers from repeatedly violating traffic laws).
[2] See S.C. Code Ann. §§ 56-1-440, 56-5-1210, 56-5-2910, 56-5-2920, and 56-5-2930 (2008).
Feb 4, 2012 | DUI & DWI, Uncategorized
Perhaps the last best hope of justice rests with the right to a jury trial. In North Carolina, your first DWI trial is in front of a judge. In South Carolina, anyone charged with drunk driving (DUI) is given a trial by jury. Of course, jury trials are important, but favorable jury selection is equally critical. An experienced DUI lawyer knows what type of juror they want to hear your case. Better make sure your DUI attorney actually goes to court and knows what they are doing when they get there. Compare our firm to any other.
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THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Appellant,
v.
John Porter Johnson, Respondent.
Appeal From Cherokee County
J. Mark Hayes, II, Circuit Court Judge
Opinion No. 4927
Heard November 3, 2011 – Filed January 4, 2012
REVERSED
Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Mark R. Farthing, all of Columbia; and Solicitor Barry J. Barnette, of Spartanburg, for Appellant.
Ralph Keith Kelly, of Spartanburg, for Respondent.
HUFF, J.: The State appeals an order of the circuit court reversing John Porter Johnson’s conviction of driving under the influence (DUI) on the basis of an alleged insufficiency in the number of potential jurors from which to draw a jury for Johnson’s trial in magistrate court. We reverse the circuit court order and reinstate Johnson’s conviction.
FACTUAL/PROCEDURAL BACKGROUND
The facts of this case are undisputed. Johnson was arrested on August 24, 2008, and charged with DUI. His case was called to trial on February 22, 2010, and was the first case on the docket for that week. Prior to the term of court, pursuant to section 22-2-90 of the South Carolina Code, the magistrate drew seventy-five names for jury service, and issued a writ of venire facias requiring the jurors’ attendance on February 22, 2010, for a one week term of court. On the morning of February 22, 2010, thirty-nine of the seventy-five summoned jurors appeared. During jury qualifications, the magistrate excused six of those thirty-nine, leaving thirty-three jurors from which to select the petit jury for Johnson’s trial. Johnson objected to being required to select from a jury pool of less than forty jurors, asserting a failure of the court to comply with code section 22-2-90(B), and sought a continuance. The magistrate overruled the objection and denied the motion for continuance. A six-member jury was drawn, and neither Johnson nor the State extinguished the list of remaining jurors in seating the jury. The case proceeded to trial, and Johnson was convicted.
Johnson filed a notice of appeal to the circuit court asserting the magistrate erred in overruling his objection to going forward with an insufficient number of jurors available, because section 22-2-90 required a minimum of forty jurors. Johnson maintained the magistrate should have granted him a continuance until a sufficient number of jurors could be assembled in accordance with section 22-2-120 of the South Carolina Code. In his argument before the circuit court, Johnson asserted that the legislature provided that a specific number of jurors are required to be present in magistrate court. He argued that the practice being followed in other jurisdictions in the state was to cancel a jury term where “there were insufficient number being less than 40(forty).” Johnson insisted that he should have had forty jurors to choose from for his jury, and the magistrate erred in making him go forward when there were only thirty-three available. The State, on the other hand, argued that section 22-2-90 required only that the magistrate draw at least forty and not more than one hundred jurors, and there is a distinction between the number of jurors drawn and the number of jurors selected. It argued there were more than sufficient jurors to meet subsection (B) of 22-2-90, as seventy-five were drawn where the statute only required that forty be drawn. Additionally, the State asserted there were sufficient jurors available to ensure that each side would receive its maximum strikes and still have enough jurors available to seat a six-member jury.
The circuit court took the matter under advisement and later issued an informal order reversing Johnson’s conviction, but indicated a more formal order would be prepared that would become the final order of the court. The court subsequently issued a written order reversing Johnson’s conviction. It concluded, after reviewing sections 22-2-20 through 22-2-150 of the South Carolina Code, and applying basic rules of statutory construction to determine legislative intent, the number of jurors available for jury selection fell below the statutory minimum number required. The circuit court found the random selection method intended by the legislature would not be accomplished when, in advance of the random selection, there is an insufficient number from which to choose. Accordingly, the circuit court concluded the magistrate erred as a matter of law in overruling Johnson’s objection, denying his motion for continuance, and requiring the parties to proceed to jury selection and trial. This appeal followed.
ISSUE
Whether the circuit court erred in reversing Johnson’s conviction based on an alleged insufficiency in the number of potential jurors present for selection where the magistrate properly drew the names of seventy-five jurors in compliance with section 22-2-90 of the South Carolina Code, a qualified jury panel was selected from the available jury pool, and Johnson suffered no prejudice from the jury selection process as conducted.
STANDARD OF REVIEW
“In criminal appeals from magistrate or municipal court, the circuit court does not conduct a de novo review, but instead reviews for preserved error raised to it by appropriate exception.” State v. Henderson, 347 S.C. 455, 457, 556 S.E.2d 691, 692 (Ct. App. 2001). In criminal cases, the appellate court reviews errors of law only. City of Rock Hill v. Suchenski, 374 S.C. 12, 15, 646 S.E.2d 879, 880 (2007). Accordingly, this court’s scope of review is limited to correcting the circuit court’s order for errors of law. Id.
LAW/ANALYSIS
The State contends the circuit court erred in reversing Johnson’s conviction, as a qualified jury was properly empaneled and the magistrate properly exercised his discretion in denying Johnson’s motion for continuance. We agree.
“The cardinal rule of statutory construction is to ascertain and effectuate the intent of the legislature.” State v. Pittman, 373 S.C. 527, 561, 647 S.E.2d 144, 161 (2007). If it can be reasonably discovered in the language used, legislative intent must prevail. Id. The language of a statute must be construed in light of the intended purpose of the statute, and whenever possible, legislative intent should be found in the plain language of the statute itself. State v. Gaines, 380 S.C. 23, 33, 667 S.E.2d 728, 733 (2008). Additionally, statutes which are part of the same legislative scheme should be construed together. Stardancer Casino, Inc. v. Stewart, 347 S.C. 377, 383, 556 S.E.2d 357, 360 (2001). In interpreting a statute, the court should give words their plain and ordinary meaning, without resort to subtle or forced construction to limit or expand the statute’s operation, and the language of the statute should be “read in a sense which harmonizes with its subject matter and accords with its general purpose.” State v. Sweat, 386 S.C. 339, 350, 688 S.E.2d 569, 575 (2010). A court must take the statute as it finds it, giving effect to the legislative intent as expressed in the language of the statute, and cannot, under its power of construction, supply an omission in a statute. State v. White, 338 S.C. 56, 58, 525 S.E.2d 261, 263 (Ct. App. 1999).
A review of Chapter 2 of Title 22 reveals the following pertinent code sections in this matter concerning the selection of juries in magistrate court:
In October of each year, the State Election Commission must provide to the chief magistrate for administration of each county, at no cost, a jury list compiled in accordance with the provisions of Section 14-7-130. The chief magistrate for administration of the county must use these lists in preparing, for each jury area, a list of the qualified electors in these jury areas, and must forward these lists to the respective magistrates.
S.C. Code Ann. § 22-2-50 (2007).
A constable or other person appointed by a magistrate shall, during the first thirty days of each calendar year, prepare a jury box for use in the magistrate’s court which shall be provided by the governing body of the county. Each box shall contain two compartments designated as A and B respectively. The person charged with the preparation of the box shall, within the specified period, place in Compartment A of the box the individual names of all qualified electors in the Jury Area. After Compartment A has been filled with names, the box shall be locked and kept in the magistrate’s custody.
S.C. Code Ann. § 22-2-60 (2007).
(A) In all cases except as provided in Section 22-2-90 in a magistrates court in which a jury is required, a jury list must be selected in the following manner:
A person appointed by the magistrate who is not connected with the trial of the case for either party must draw out of Compartment “A” of the jury box at least thirty but not more than one hundred names, and this list of names must be delivered to each party or to the attorney for each party.
(B) If a court has experienced difficulty in drawing a sufficient number of jurors from the qualified electors of the area, and, before implementing a process pursuant to this subsection, seeks and receives the approval of South Carolina Court Administration, the person selected by the presiding magistrate may draw at least one hundred names but not more than a number determined sufficient by court administration for the jury list, and must deliver this list to each party or the attorney for each party.
S.C. Code Ann. § 22-2-80 (2007).
(A) In addition to the procedure for drawing a jury list as provided for in Section 22-2-80, in a magistrates court which schedules terms for jury trials, the magistrate may select a jury list in the manner provided by this section.
(B) At least ten but not more than forty-five days before a scheduled term of jury trials, a person selected by the presiding magistrate must draw at least forty but not more than one hundred jurors to serve one week only.
(C) If a court has experienced difficulty in drawing a sufficient number of jurors from the qualified electors of the area, and, before implementing a process pursuant to this subsection, seeks and receives the approval of South Carolina Court Administration, the person selected by the presiding magistrate may draw at least one hundred names but not more than a number determined sufficient by court administration to serve one week only.
(D) Immediately after the jurors are drawn, the magistrate must issue a writ of venire facias for the jurors requiring their attendance on the first day of the week for which they have been drawn. This writ must be delivered to the magistrate’s constable or the sheriff of the county concerned.
S.C. Code Ann. § 22-2-90 (2007).
The names drawn pursuant to either Section 22-2-80 or Section 22-2-90 must be placed in a box or hat and individual names randomly drawn out one at a time until six jurors and four alternates are selected. Each party has a maximum of six peremptory challenges as to primary jurors and four peremptory challenges as to alternate jurors and any other challenges for cause the court permits. If for any reason it is impossible to select sufficient jurors and alternates from the names drawn, names must be drawn randomly from Compartment “A” until sufficient jurors and alternates are selected.
S.C. Code Ann. § 22-2-100 (2007).
If at the time set for the trial there are not sufficient jurors to proceed because one or more have failed to attend, have not been summoned, or have been excused or disqualified by the court, additional jurors must be selected from the remaining names or in the manner provided in Section 22-2-80 or Section 22-2-100.
S.C. Code Ann. § 22-2-120 (2007).
In summary, our statutes require a constable or other person appointed by a magistrate to prepare a jury box for use in the magistrate court, which contains two compartments, designated as A and B, and to place in Compartment “A” of the box the individual names of all qualified electors in the Jury Area. S.C. Code Ann. § 22-2-60 (2007). Except where jurors are drawn for a weeklong term of court under section 22-2-90, the person appointed by the magistrate must draw out of Compartment “A” of the jury box at least thirty but not more than one hundred names, with this list then delivered to each party or to the parties’ attorneys. S.C. Code Ann. § 22-2-80(A) (2007). Where a magistrate court schedules terms for jury trials, the procedure to follow is similar to that of section 22-2-80, but requires that the person selected by the presiding magistrate draw at least forty, but not more than one hundred, jurors to serve a one week term. S.C. Code Ann. § 22-2-90(B) (2007). Like section 22-2-80, section 22-2-90 includes a provision that if the court has experienced difficulty in drawing a sufficient number of jurors from the qualified electors of the area, it may seek the approval of South Carolina Court Administration to allow the person selected by the presiding magistrate to draw a minimum of one hundred names to serve. S.C. Code Ann. §§ 22-2-80 (B) (2007); 22-2-90(C) (2007). Whether drawing names pursuant to section 22-2-80 or, as in this case, for a weeklong term of court pursuant to section 22-2-90, the individual names must be randomly drawn out, one at a time, until six jurors and four alternates are selected, and each party is allowed a maximum of six peremptory challenges as to primary jurors and four peremptory challenges as to alternate jurors. S.C. Code Ann. § 22-2-100 (2007). If it is not possible “to select sufficient jurors and alternates from the names drawn, names then must be drawn randomly from Compartment ‘A’ until sufficient jurors and alternates are selected.” Id. “If at the time set for the trial there are not sufficient jurors to proceed because one or more have failed to attend, have not been summoned, or have been excused or disqualified by the court, additional jurors must be selected from the remaining names or in the manner provided in Section 22-2-80 or Section 22-2-100.” S.C. Code Ann. § 22-2-120 (2007).
We agree with the State that there is no provision in Chapter 2 of Title 22 specifically establishing a minimum number of jurors required to be present in the jury pool before jury selection can proceed. The plain wording of section 22-2-90 requires only that a person selected by the presiding magistrate draw a minimum of forty jurors to serve for a one week term. It does not require that forty jurors be present and available in the jury pool before jury selection can proceed for a trial.
Further, section 22-2-100 mandates the individual names be randomly drawn until six jurors and four alternates are selected, with each party being allowed a maximum of six peremptory challenges as to primary jurors and four peremptory challenges as to alternate jurors. Thus, as noted by the State, allowing for the maximum number of primary (six) and alternate (four) jurors along with the maximum number of combined peremptory challenges (twenty), thirty jurors would be sufficient to meet such needs. Although it could possibly take every single one of the individual jurors to ultimately seat a jury, the names would still be drawn in random order, with different decisions regarding the parties’ choices on whether or not to use their peremptory challenges affecting the ultimate make-up, and therefore allowing for the randomness of the jury.
Additionally, we note that in those cases where the jury is not being selected for a weeklong term of court, section 22-2-80(A) allows the person appointed by the magistrate to draw a minimum of thirty names for a jury trial in magistrate court. If the drawing of only thirty names is sufficient under section 22-2-80, thus allowing for a maximum of thirty potential jurors to present themselves for jury selection in those cases, such a number should likewise be sufficient from which to select a jury under section 22-2-90, as there is no difference in the number of primary and alternate jurors and the number of peremptory strikes available to each party whether drawing names pursuant to section 22-2-80 or pursuant to section 22-2-90. Therefore, construing these statutes, which are part of the same legislative scheme, together, and reading the language of these statutes in a sense which harmonizes with the subject matter and accords with its general purpose, we find the presence of thirty-three jurors in this case was sufficient to select a qualified jury panel from the jury pool.
Johnson and the circuit court effectively read section 22-2-90 as requiring that a minimum of forty individuals appear and be available for jury selection, while the plain terms of the statute require only that forty individual names be drawn and ordered to appear. Indeed, section 22-2-120 seems to recognize that some of the summoned jurors may fail to appear. However, it is only when “it is impossible to select sufficient jurors and alternates from the names drawn” and “there are not sufficient jurors to proceed because one or more have failed to attend, have not been summoned, or have been excused or disqualified by the court” that steps must be taken to remedy an insufficient jury pool. S.C. Code Ann. §§ 22-2-100; 22-2-120. The legislature has set forth no specified number of jurors required to be present and available in the jury pool before jury selection can proceed. As noted, a court cannot, under its power of construction, supply an omission in a statute. White, 338 S.C. at 58, 525 S.E.2d at 263. By asserting a mandatory minimum of forty jurors are required to be present and available for selection in a magistrate court jury trial, Johnson and the circuit court seek to supply an omission in the statute and expand the statute’s operation. Further, we find such an interpretation to be inconsistent with the legislative intent in enacting these statutory provisions. Here, there were sufficient jurors available to ensure that each side would receive its maximum strikes and still have enough to seat a jury. Accordingly, we conclude that the circuit court erred in finding the thirty-three jurors available for jury selection fell below the statutory minimum number required.
In light of our holding in this case, we find it unnecessary to address the State’s alternate assertion that, even assuming the magistrate erred in his interpretation of the statutory provisions, the statutory provisions are merely directory and Johnson suffered no prejudice. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (holding an appellate court need not address remaining issues when disposition of a prior issue is dispositive).
CONCLUSION
For the foregoing reasons, we reverse and reinstate Johnson’s conviction.
REVERSED.
PIEPER and LOCKEMY, JJ., concur.
Jan 21, 2012 | DUI & DWI, Uncategorized
This recent SC Supreme Court decision reaffirms South Carolina’s statutory requirement for roadside video recording. Video keeps everyone “honest.” A picture is “worth a thousand words.” Actually, with roadside video, no words are necessary at all. Everyone knows what “drunk” looks like, and a video at the scene at the time of arrest can literally make the difference between a guilty verdict and an acquittal at trial. Before deciding which law firm to hire to protect you in a SC DUI arrest, consider our lawyers’ credentials and experience.
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. 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. Compare our attorneys’ credentials to any other law firm. Then call us. We welcome an opportunity to sit down for a private consultation to review your case. Call us today. www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The Town of Mt. Pleasant, Appellant, v. Treva Roberts, Respondent.
Appeal From Charleston County
J. C. Nicholson, Jr., Circuit Court Judge
Opinion No. 27005
Heard June 7, 2011 – Filed July 11, 2011
AFFIRMED AS MODIFIED
Charles Mac Gibson, Jr., of Charleston, and Ira A. Grossman, of Mt. Pleasant, for Appellant.
Diedreich P. von Lehe, III, of Charleston, for Respondent.
JUSTICE BEATTY: The Town of Mount Pleasant (“Town”) appeals the circuit court’s order reversing and dismissing Treva Roberts’s municipal court conviction for driving under the influence (“DUI”)[1] on the ground the arresting officer’s vehicle was not equipped with a video camera pursuant to section 56-5-2953 of the South Carolina Code.[2] The Town contends the circuit court erred in: (1) ruling on the appeal as it was divested of appellate jurisdiction given Roberts failed to obtain a bond or pay her court-ordered fine prior to initiating her appeal; and (2) “narrowly construing” section 56-5-2953 to require the reversal of Roberts’s DUI conviction and dismissal of the charge. We affirm as modified.
I. FACTUAL/PROCEDURAL HISTORY
On November 11, 2007, at approximately 1:00 a.m., Officer Bruce Burbage of the Town of Mount Pleasant’s Police Department conducted a traffic stop of Roberts after observing her driving erratically. As a result of his initial observations, Officer Burbage conducted three field sobriety tests, on which he noted Roberts “performed pretty poorly.”
Subsequently, Officer Burbage arrested Roberts for DUI and transported her to the Mount Pleasant Police Department where Roberts was offered, but refused, a breathalyzer test. There was no recording of the initial traffic stop, field sobriety tests, or the arrest as neither Officer Burbage’s vehicle nor the backup officer’s was equipped with a video camera.[3]
In response to Roberts’s discovery motions,[4] which included a request for production of the incident site videotape, the Town’s prosecutor forwarded an “Affidavit for Failure to Produce Videotape” executed by Officer Burbage on October 16, 2009. The affidavit, a form generated by the Town, included a “checked” box that stated: At the time of the Defendant’s arrest the vehicle I was operating had not been equipped with a videotaping device and therefore pursuant to Section 18 of Senate Bill 174 of 1998,[5] the videotaping requirement regarding vehicles is not applicable.
On October 30, 2009, a municipal court judge conducted a jury trial on Roberts’s DUI charge. Prior to trial, Roberts moved to dismiss the charge based on Officer Burbage’s failure to videotape the entire arrest pursuant to section 56-5-2953. Roberts asserted that section 56-5-2953 conferred upon her a statutory right to have the roadside arrest videotaped. Because Officer Burbage failed to comply with the statutorily-mandated procedure, Roberts claimed this violation warranted the dismissal of her DUI charge. The motion to dismiss was denied.
The Town relied on subsection (G) of the statute for the proposition that the videotaping requirement took effect only “once the law enforcement vehicle is equipped with a videotaping device.”[6] Because Officer Burbage’s vehicle was not equipped with a video camera, the Town argued that the videotaping provisions of section 56-5-2953 were inapplicable and, thus, the failure to videotape Roberts’s arrest did not warrant the dismissal of the DUI charge.[7]
In support of her motion, Roberts called several law enforcement officers from Charleston, Berkeley, and Dorchester counties in an attempt to establish that the Town had fewer video cameras than other municipalities despite the Town’s significantly higher number of DUI arrests.[8] Given these statistics, Roberts argued that the Town had willfully avoided complying with the 1998 statute as it had not requested from the South Carolina Department of Public Safety (DPS) additional video cameras in response to the increasing number of DUI arrests. Roberts also offered evidence that the Town was financially able to purchase additional video cameras, but had chosen not to do so.[9]
The Town countered Roberts’s arguments by claiming that DPS was solely responsible for providing the video cameras and, thus, the Town did not have a duty to request or purchase additional cameras in order to comply with the statute.[10]
At the conclusion of the pre-trial hearing, the municipal court judge denied Roberts’s motion to dismiss based on a “strict interpretation” of section 56-5-2953. In his written return, the judge concluded that “there is no requirement that the Town of Mount Pleasant obtain any video cameras and that the statute only provides what the Town must do once they get the video cameras on board.” Further, the judge ruled that “Section 56-5-2953(G) indicated that the other provisions of [the statute] take effect . . . once the vehicle is equipped with a [videotaping] device.”
Roberts was convicted and appealed her conviction to the circuit court, arguing the municipal court judge erred in denying her motion to dismiss the charge based upon the Town’s failure to comply with the “mandatory” videotaping provisions of section 56-5-2953.
The Town moved to dismiss the appeal for lack of jurisdiction based on Roberts’s failure to obtain a bond or pay the court-ordered fine prior to initiating the appeal. The Town contended the circuit court was without jurisdiction to rule on the appeal given Roberts did not comply with the procedural requirements of section 14-25-95 of the South Carolina Code,[11] which governs appeals from municipal court to circuit court.
The circuit court judge issued a written order in which it reversed Roberts’s DUI conviction and dismissed the charge. The judge initially determined that it had “subject matter jurisdiction” to hear the appeal. In so ruling, the judge found jurisdiction was vested in the circuit court when Roberts timely filed and served her notice of appeal as required by section 14-25-95. The judge further concluded that Roberts’s “non-entry into a bond and non-payment of the fine assessed [did] not deprive [the court] of the subject matter jurisdiction.” Additionally, the judge held that all issues with respect to the non-entry into a bond or non-payment of the fine were moot as Roberts had appeared at the hearing and paid her fine the day of the hearing.
As to the merits of Roberts’s appeal, the judge specifically found that the videotaping requirements of section 56-5-2953 were mandatory based on this Court’s decision in City of Rock Hill v. Suchenski, 374 S.C. 12, 646 S.E.2d 879 (2007).[12] Interpreting subsection (G) of the statute, the judge concluded that this provision was “merely to provide a reasonable grace period for law enforcement agencies to equip their vehicles with video recording devices.” The judge explained that to construe subsection (G) as proposed by the Town would permit law enforcement agencies to “successfully circumvent [the statute’s videotaping requirements] ad infinitum” by not requesting video cameras from DPS.
The judge also ruled that the Town’s failure to produce a videotape of Roberts’s conduct at the incident site was not “excused” as none of the enumerated exceptions in subsection (B) of section 56-5-2953[13] were satisfied.
The judge concluded that the Town’s failure to comply with the videotaping requirements a decade after the enactment of section 56-5-2953 was “unreasonable” and constituted a violation of the statute that warranted the reversal of Roberts’s conviction and the dismissal of the DUI charge.
The Town appealed the circuit court’s order to the Court of Appeals. This Court certified the case from the Court of Appeals pursuant to Rule 204(b), SCACR.
II. Discussion
A. Standard of Review
“In criminal appeals from a municipal court, the circuit court does not conduct a de novo review; rather, it reviews the case for preserved errors raised to it by an appropriate exception.” City of Cayce v. Norfolk S. Ry. Co., 391 S.C. 395, 399, 706 S.E.2d 6, 8 (2011); see S.C. Code Ann. § 14-25-105 (Supp. 2010) (“There shall be no trial de novo on any appeal from a municipal court.”).“Therefore, our scope of review is limited to correcting the circuit court’s order for errors of law.” Suchenski, 374 S.C. at 15, 646 S.E.2d at 880.
B. Appellate Jurisdiction
As a threshold matter, we must address the Town’s jurisdictional challenge as any defect in the circuit court’s appellate jurisdiction would necessarily affect this Court’s jurisdiction to rule on the Town’s appeal.
The Town asserts the circuit court judge erred in characterizing its jurisdictional challenge as one that implicated subject matter jurisdiction rather than appellate jurisdiction. The Town avers the circuit court judge did not have appellate jurisdiction to rule on Roberts’s appeal given Roberts failed to either pay the court-ordered fine or obtain a bond prior to initiating her appeal to the circuit court. Under the Town’s interpretation of section 14-25-95, the circuit court could only be vested with appellate jurisdiction if one of the above-listed prerequisites was satisfied.
Because our analysis of this issue and the Town’s second issue is dependent upon our evaluation of the applicable statutes, we begin with an overview of this state’s well-established rules of statutory construction.
1.
“The primary rule of statutory construction is to ascertain and give effect to the intent of the legislature.” Bryant v. State, 384 S.C. 525, 529, 683 S.E.2d 280, 282 (2009). When a statute is penal in nature, it must be strictly construed against the State and in favor of the defendant. State v. Blackmon, 304 S.C. 270, 273, 403 S.E.2d 660, 662 (1991). However, “[a]ll 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 light of the intended purpose of the statute.” State v. Sweat, 386 S.C. 339, 351, 688 S.E.2d 569, 575 (2010) (citation omitted).
In ascertaining legislative intent, “a court should not focus on any single section or provision but should consider the language of the statute as a whole.” Mid-State Auto Auction of Lexington, Inc. v. Altman, 324 S.C. 65, 69, 476 S.E.2d 690, 692 (1996). Where the statute’s language is plain, unambiguous, and conveys a clear, definite meaning, the rules of statutory interpretation are not needed and the court has no right to impose another meaning. Gay v. Ariail, 381 S.C. 341, 345, 673 S.E.2d 418, 420 (2009).
If the statute is ambiguous, however, courts must construe the terms of the statute. Lester v. S.C. Workers’ Comp. Comm’n, 334 S.C. 557, 561, 514 S.E.2d 751, 752 (1999). “A statute as a whole must receive practical, reasonable, and fair interpretation consonant with the purpose, design, and policy of lawmakers.” Sloan v. S.C. Bd. of Physical Therapy Exam’rs, 370 S.C. 452, 468, 636 S.E.2d 598, 606-07 (2006). In interpreting a statute, the language of the statute must be read in a sense that harmonizes with its subject matter and accords with its general purpose. Hitachi Data Sys. Corp. v. Leatherman, 309 S.C. 174, 178, 420 S.E.2d 843, 846 (1992).
“Any ambiguity in a statute should be resolved in favor of a just, equitable, and beneficial operation of the law.” Bennett v. Sullivan’s Island Bd. of Adjustment, 313 S.C. 455, 458, 438 S.E.2d 273, 274 (Ct. App. 1993). Courts will reject a statutory interpretation that would lead to a result so plainly absurd that it could not have been intended by the Legislature or would defeat the plain legislative intention. Unisun Ins. Co. v. Schmidt, 339 S.C. 362, 368, 529 S.E.2d 280, 283 (2000).
2.
As an initial matter, we agree with the Town’s argument that the circuit court judge erred in classifying the jurisdictional challenge as one of subject matter jurisdiction. See Great Games, Inc. v. S.C. Dep’t of Revenue, 339 S.C. 79, 83 n.5, 529 S.E.2d 6, 8 n.5 (2000) (“The failure of a party to comply with the procedural requirements for perfecting an appeal may deprive the court of ‘appellate’ jurisdiction over the case, but it does not affect the court’s subject matter jurisdiction.”); see also State v. Brown, 358 S.C. 382, 596 S.E.2d 39 (2004) (recognizing that failure to timely appeal a conviction from magistrate court does not implicate subject matter jurisdiction).
Clearly, the circuit court had subject matter jurisdiction to hear and determine Roberts’s appeal from her municipal court conviction as the Legislature has specifically authorized it to do so. See S.C. Code Ann. § 14-5-340 (1977) (“Circuit judges may hear appeals from magistrates’ courts and municipal courts to the court of general sessions and the court of common pleas, upon notice as required by law being given for the hearing of such appeals.”); S.C. Const. art. V, § 11 (“The Circuit Court shall be a general trial court with original jurisdiction in civil and criminal cases, except those cases in which exclusive jurisdiction shall be given to inferior courts, and shall have such appellate jurisdiction as provided by law.”).
As for the circuit court’s appellate jurisdiction, we find that Roberts properly met the prerequisites of section 14-25-95. Pursuant to this Code section, Roberts was required to file her notice of appeal with the municipal court “within ten days after sentence is passed or judgment rendered, or the appeal is considered waived.” Id. § 14-25-95. There is no dispute that Roberts timely filed her appeal with the municipal court. Having met this procedural prerequisite, the circuit court was vested with appellate jurisdiction to determine Roberts’s appeal. Cf. Town of Hilton Head Island v. Goodwin, 370 S.C. 221, 224, 634 S.E.2d 59, 61 (Ct. App. 2006) (“A party who fails to timely appeal or take any other timely action necessary to correct an error is procedurally barred from contesting the validity of the conviction.”).
Unlike the Town, we do not believe the circuit court was divested of appellate jurisdiction because Roberts failed to obtain a bond or pay her court-ordered fine prior to filing her notice of appeal with the municipal court. These two provisions of section 14-25-95 do not implicate jurisdiction as there is no temporal restriction in that sentence of the statute. Instead, these provisions serve the purpose of insuring that an appellant will appear for the hearing before the circuit court. If an appellant fails to comply with these provisions, the municipality may issue a bench warrant to address any delinquency on the part of the appellant.
Finally, we note that Roberts appeared at the hearing and paid her fine; therefore, any related issue is moot. See Linda Mc Company, Inc. v. Shore, 390 S.C. 543, 557, 703 S.E.2d 499, 506 (2010) (“A case becomes moot when judgment, if rendered, will have no practical legal effect upon the existing controversy. This is true when some event occurs making it impossible for the reviewing Court to grant effectual relief.” (citations omitted)).
C. Reversal of DUI conviction/Dismissal of DUI charge
Having found that the circuit court was vested with appellate jurisdiction, we must next decide whether the Town’s violation of the videotaping provisions of section 56-5-2953 warranted the reversal of Roberts’s DUI conviction and the dismissal of the charge.
Although this is the specific question presented, we believe there is a more fundamental question to consider in analyzing section 56-5-2953: if the Legislature imposes a statutory obligation on the State to create evidence and provides a sanction for inexcusable noncompliance, does the State’s failure to do so necessarily warrant a per se dismissal of the accused’s case?
Up until this point, our appellate courts have affirmatively answered this question when a law enforcement agency inexcusably failed to videotape a DUI arrest with an existing video camera. In the instant case, the Town failed to create a videotape of Roberts’s DUI arrest because the patrol vehicle had never been equipped with a video camera.
The Town argues the circuit court judge erred in construing section 56-5-2953 to require the dismissal of Roberts’s DUI charge on the basis that the arresting officer’s vehicle was not equipped with a video camera.
Applying the rules of statutory construction, the Town maintains that in promulgating section 56-5-2953 the Legislature clearly provided for instances where an incident site videotape would not be available as demonstrated by certain statutory exceptions.[14] Furthermore, because the Legislature mandated in subsection (D) that DPS would supply the video cameras, the Town claims that it was not obligated to purchase or request additional videotape equipment; thus, its failure to equip Officer Burbage’s vehicle with a camera rendered the mandatory provisions of section 56-5-2953 inapplicable pursuant to subsection (G).
The key case in the analysis of this issue is City of Rock Hill v. Suchenski, 374 S.C. 12, 646 S.E.2d 879 (2007). In Suchenski, the defendant was convicted in municipal court for driving with an unlawful alcohol concentration (DUAC). Id. at 14, 646 S.E.2d at 879. On appeal, the circuit court reversed the conviction based on the City of Rock Hill’s failure to videotape the defendant’s entire arrest as the arresting officer’s camera “ran out of tape.” Id. The circuit court did not address whether the arresting officer’s failure to comply with section 56-5-2953 was excused pursuant to an exception in subsection (B) of the statute. Id. at 14, 646 S.E.2d at 880.
This Court affirmed the circuit court’s decision. In so ruling, we found that any argument concerning the exceptions for noncompliance in section 56-5-2953(B) was not preserved as the circuit court had not ruled on this issue and the City of Rock Hill had not sought a post-judgment ruling regarding this issue. Id. at 16, 646 S.E.2d at 880. We also rejected the City of Rock Hill’s contention that a violation of the videotaping statute should not result in dismissal of a charge if there was no showing of prejudice to the defendant. Id. at 16, 646 S.E.2d at 881. We found the plain language of the statute provided that the “failure to produce videotapes would be a ground for dismissal if no exceptions apply.” Id.
Although the decision in Suchenski indisputably established that the videotaping provisions of section 56-5-2953 are mandatory and not optional, we did not address whether the failure to comply with the statute could be excusable if the law enforcement vehicle was never equipped with a camera. Specifically, we were not required to assess the import of subsection (G) with respect to the statutory exceptions of subsection (B).
Subsection (B) of section 56-5-2953 outlines several statutory exceptions that excuse noncompliance with the mandatory videotaping requirements. Noncompliance is excusable: (1) if the arresting officer submits a sworn affidavit certifying the video equipment was inoperable despite efforts to maintain it; (2) if the arresting officer submits a sworn affidavit that it was impossible to produce the videotape because the defendant either (a) needed emergency medical treatment or (b) exigent circumstances existed; (3) in circumstances including, but not limited to, road blocks, traffic accidents, and citizens’ arrests; or (4) for any other valid reason for the failure to produce the videotape based upon the totality of the circumstances.
Our appellate courts have strictly construed section 56-5-2953 and found that a law enforcement agency’s failure to comply with these provisions is fatal to the prosecution of a DUI case. See Suchenski; 374 S.C. at 17, 646 S.E.2d at 881 (holding that “dismissal of the DUAC charge is an appropriate remedy provided by section 56-5-2953 where a violation of subsection (A) is not mitigated by subsection (B) exceptions”); Murphy v. State, Op. No. 4816 (S.C. Ct. App. filed Apr. 6, 2011) (Shearouse Adv. Sh. No. 13 at 49) (recognizing the State’s noncompliance with section 56-5-2953, which is not mitigated by a statutory exception, warranted dismissal; holding that video complied with section 56-5-2953(A) even though it did not capture a continuous full view of the accused at the incident site (citing Suchenski)).
Although our appellate courts have acknowledged these statutory “escape valves,” they have so far considered their application only where a law enforcement agency failed to create a video recording of the DUI arrest because the video camera malfunctioned. Our courts, however, have not analyzed whether these exceptions apply where the law enforcement vehicle has never been equipped with a video camera as in the instant case.
Taking into consideration the purpose of section 56-5-2953, which is to create direct evidence of a DUI arrest, we find the Town’s protracted failure to equip its patrol vehicles with video cameras, despite its “priority” ranking, defeats the intent of the Legislature and violates the statutorily-created obligation to videotape DUI arrests. Accordingly, we do not believe that the Town should be able to continually evade its duty by relying on subsection (G) of section 56-5-2953. Thus, we hold that the Town’s failure to equip its patrol vehicles does not negate the application of the statutory exceptions in subsection (B).
Under the specific facts of this case, we find the Town failed to satisfy any of the above-outlined statutory exceptions. Significantly, the Town conceded in municipal court and before the circuit court that the initial three exceptions did not apply and could not justify its failure to videotape Roberts’s DUI arrest.
Thus, the only feasible exception is that there was a “valid reason” for the Town’s failure to comply with the mandatory videotaping requirements. Although the Town did not explicitly reference this provision, it argued that Officer Burbage’s patrol vehicle was not equipped with a video camera because DPS had not supplied the Town with a sufficient number of cameras and the Town was not obligated to expend funds to purchase the cameras.
As we interpret the circuit court judge’s order, we do not discern a ruling that the Town was obligated to purchase the cameras with its own funds. Instead, the circuit court judge imposed an obligation on the Town to request additional video cameras given the Town’s “high ranking” for DUI arrests as compared to other municipalities.
Consequently, the question becomes whether the Town’s failure to request additional video cameras constituted a “valid reason for the failure to produce the videotape based upon the totality of the circumstances.” Id. § 56-5-2953(B). We find the Town’s explanation is disingenuous given its significantly higher number of DUI arrests as compared to smaller municipalities.[15] Moreover, the Town’s interpretation of subsection (G) is nonsensical as the requirements of section 56-5-2953 could be circumvented in perpetuity if a law enforcement agency purposefully does not request additional video cameras.
Admittedly, the Legislature was silent with respect to a time requirement for when vehicles must be equipped with video cameras. However, applying the rules of statutory construction, we find the Town’s interpretation would defeat the legislative intent of section 56-5-2953 and the overall DUI reform enacted in 1998.
Finding that neither subsection (G) nor the statutory exceptions in subsection (B) excuse the Town’s noncompliance with section 56-5-2953, the question becomes whether the failure to videotape a DUI arrest warrants a per se dismissal of the DUI case or whether, as the Town contends, the accused must establish that he or she was prejudiced.
As evidenced by this Court’s decision in Suchenski, the Legislature clearly intended for a per se dismissal in the event a law enforcement agency violates the mandatory provisions of section 56-5-2953. Notably, the Legislature specifically provided for the dismissal of a DUI charge unless the law enforcement agency can justify its failure to produce a videotape of a DUI arrest. Id. § 56-5-2953(B) (“Failure by the arresting officer to produce the videotapes required by this section is not alone a ground for dismissal of any charge made pursuant to Section 56-5-2930 . . . if [certain exceptions are met].”). The term “dismissal” is significant as it explicitly designates a sanction for an agency’s failure to adhere to the requirements of section 56-5-2953.
Furthermore, it is instructive that the Legislature has not mandated videotaping in any other criminal context. Despite the potential significance of videotaping oral confessions, the Legislature has not required the State to do so. By requiring a law enforcement agency to videotape a DUI arrest, the Legislature clearly intended strict compliance with the provisions of section 56-5-2953 and, in turn, promulgated a severe sanction for noncompliance.
Thus, we hold that dismissal is the appropriate sanction in the instant case as this was clearly intended by the Legislature and previously decided by this Court in Suchenski.
Our decision should in no way be construed as eradicating subsection (G) of section 56-5-2953. Instead, we emphasize that subsection (G) is still viable and must be read in conjunction with subsection (B) as these exceptions, under the appropriate factual circumstances, could operate to excuse a law enforcement agency’s noncompliance due to the failure to equip a patrol vehicle with a video camera. For example, we can conceive of a scenario where a law enforcement agency establishes a “valid reason” for failing to create a video of the incident site by offering documentation that, despite concerted efforts to request video cameras, it has not been supplied with the cameras from DPS.
III. Conclusion
In conclusion, the circuit court judge erred in classifying the Town’s jurisdictional challenge as one involving subject matter jurisdiction. Because Roberts timely served her notice of appeal on the municipal court, she met the procedural requirements of section 14-25-95; thus, her failure to obtain a bond or pay the court-ordered fine did not divest the circuit court of appellate jurisdiction.
As to the merits, we find the Town’s prolonged failure to equip its patrol vehicles with video cameras defeats the intent of the Legislature; therefore, the Town should not be able to avoid its statutorily-created obligation to produce a videotape by repeatedly relying on subsection (G) of section 56-5-2953. Because the Town failed to establish any statutory exception to excuse its noncompliance, we hold the circuit court judge correctly reversed Roberts’s DUI conviction and dismissed the charge. Accordingly, we affirm as modified the decision of the circuit court judge.
AFFIRMED AS MODIFIED.
TOAL, C.J., PLEICONES, KITTREDGE and HEARN, JJ., concur.
[1] S.C. Code Ann. § 56-5-2930 (2006).
[2] Section 56-5-2953 provides in relevant part:
(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 videotaped
(1) The videotaping at the incident site must:
(a) begin not later than the activation of the officer’s blue lights and conclude after the arrest of the person for a violation of Section 56-5-2930, 56-5-2933, or a probable cause determination that the person violated Section 56-5-2945; and (b) include the person being advised of his Miranda rights before any field sobriety tests are administered, if the tests are administered.
S.C. Code Ann. § 56-5-2953 (2006). This section was amended effective February 10, 2009. Act No. 201, 2008 S.C. Acts 1682-85. Accordingly, we have cited to the 2006 Code as the amended statute is not applicable to the instant case.[3] At the time of Roberts’s arrest, the “best case scenario” was that only two of the Town’s twelve police department vehicles on patrol that night were camera-equipped. According to the annual inventory records of the South Carolina Department of Public Safety, the Town in 2007 had a total of seven in-car camera systems, of which one was acquired in 2001 and the remaining six in 2002.[
4] Brady v. Maryland, 373 U.S. 83 (1963); Rule 5, SCRCrimP.
[5] Section 18 provides in relevant part:
The provisions in Section 56-5-2953(A), (B), and (C) take effect for each law enforcement vehicle used for traffic enforcement as soon as the law enforcement vehicle used for traffic enforcement is equipped with a videotaping device.
Act No. 434, 1998 S.C. Acts 3236.
[6] Subsection (G) provides in pertinent part:
The provisions contained in Section 56-5-2953(A), (B), and (C) take effect for each law enforcement vehicle used for traffic enforcement once the law enforcement vehicle is equipped with a videotaping device.
Id. § 56-5-2953(G).
[7] As will be discussed, this argument would be valid but for the Town’s obvious intentional efforts to avoid complying with section 56-5-2953.
[8] According to records produced by the South Carolina Law Enforcement Division (SLED), the Town made 2,796 DUI arrests between 1998 and 2008. Based on these arrest records, the Town ranked first out of all municipalities for total DUI arrests. The Department of Public Safety used these statistics to determine the priority for issuing additional video cameras; thus, law enforcement agencies with the “highest ranking” for DUI arrests received priority in terms of the issuance of additional video cameras.
Despite these statistics, several nearby municipalities with fewer DUI arrests had received more video cameras from DPS than the Town, for example: (1) the City of Folly Beach made 162 DUI arrests and received 6 cameras; (2) the Town of Moncks Corner made 198 DUI arrests and received 13 cameras; and (3) the City of the Isle of Palms made 339 DUI arrests and received 13 cameras.
[9] Roberts offered evidence that the Town had recently expended: (1) $65,145 for the replacement of a “Town of Mt. Pleasant” sign at the Long Point Road Exit of I-526 East; (2) $100,000 for a marketing firm’s development of a new Town slogan and logo; (3) $1,328,064.70 for the renovation of the “Farmer’s Market” on Coleman Boulevard; and (4) $6,000,000 for a parcel of property known as the “O.K. Tire Store,” which was intended to be developed into a park.
[10] In support of its claim, the Town referenced subsection (D) of section 56-5-2953, which states in relevant part:
The Department of Public Safety is responsible for purchasing, maintaining, and supplying all videotaping equipment for use in all law enforcement vehicles used for traffic enforcement. The Department of Public Safety also is responsible for monitoring all law enforcement vehicles used for traffic enforcement to ensure proper maintenance of videotaping equipment. Id. § 56-5-2953(D).
[11] Section 14-25-95 provides:
Any party shall have the right to appeal from the sentence or judgment of the municipal court to the Court of Common Pleas of the county in which the trial is held. Notice of intention to appeal, setting forth the grounds for appeal, must be given in writing and served on the municipal judge or the clerk of the municipal court within ten days after sentence is passed or judgment rendered, or the appeal is considered waived. The party appealing shall enter into a bond, payable to the municipality, to appear and defend the appeal at the next term of the Court of Common Pleas or shall pay the fine assessed.
S.C. Code Ann. § 14-25-95 (Supp. 2010).
[12] City of Rock Hill v. Suchenski, 374 S.C. 12, 15, 646 S.E.2d 879, 880 (2007) (“Section 56-5-2953 commands the arresting officer to videotape the individual during a DUI arrest.”).
[13] Id. § 56-5-2953(B) (“Failure by the arresting officer to produce the videotapes required by this section is not alone a ground for dismissal of any charge made pursuant to Section 56-5-2930, 56-5-2933, or 56-5-2945 if [certain exceptions are met]).”
[14] See, e.g., State v. Landis, 362 S.C. 97, 606 S.E.2d 503 (Ct. App. 2004) (recognizing that law enforcement agency’s failure to videotape a DUI arrest was excusable as the arresting officer submitted an affidavit that certified the videotape machine was inoperable at the time of the arrest).
[15] It is interesting to note that the Town requested fifty additional cameras in May 2009 apparently after recognizing that its failure to videotape DUI arrests may severely impact the prosecution of its pending DUI cases. The Town’s request was in response to a DPS survey, dated April 28, 2009, that stated in part, “The Department is glad to announce that the original requests have been fulfilled, and we have officially awarded over 3200 camera systems.”
