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Cops don’t have to be Coppolas, says appeals court

By Phillip Bantz, South Carolina Lawyers Weekly

Police officers have to film field sobriety tests during DUI traffic stops under a South Carolina law that has irked prosecutors since the defense bar pushed the statute into existence in the 1990s.

The video recording requirement has resulted in dismissals of seemingly slam-dunk cases because parts of a driver’s body were not visible in the dashcam video or the audio quality was too poor to record the officer reading Miranda rights.

But recent decisions from the state’s appellate courts appear to represent a “shifting toward a more common sense approach to the video aspect of the statute,” said 16th Circuit Solicitor Kevin Brackett.

The Court of Appeals on Sept. 28 reversed a trial judge’s dismissal of a DUI case that Brackett’s office brought against Steven Walters Jr. The court disagreed with York County Circuit Judge Lee Alford’s decision to throw out the case because Walters was facing away from the dashcam while he was taking the horizontal gaze nystagmus test.

Alford could not tell whether the trooper who made the traffic stop and arrest had performed the HGN test correctly as he could not see the trooper’s hand or Walters’ face in the video. The test focuses on an involuntary eye twitch as an indication of impairment.

Brackett and the state Attorney General’s Office asserted that the statute does not require that every detail of the HGN test be captured on video to determine whether a driver failed or the officer botched the procedure.

But Walters and his appellate attorney, James Boyd of Rock Hill, contended that the video must clearly show a driver performing the tests. Otherwise, it’s impossible to know whether an officer made a mistake or the driver passed or failed, Boyd said.

Siding with the prosecution, Chief Judge James Lockemy wrote in the unanimous appellate opinion that the law does not require “views of all angles of the test” and having such a requirement “would be unreasonable given the limitations of dashboard cameras.”

The opinion relied heavily on the state Supreme Court’s decision last year in State v. Gordon, which declared that “commons sense dictates that the head must be visible on the video” during the HGN test. But the high court also noted in its opinion that “it is axiomatic that the face is part of the head” – and Walters head was visible in the video, even though it was the back of his head.

Boyd said Walters planned to petition the Court of Appeals for a rehearing. If the petition is denied, he said Walters would likely ask the Supreme Court to hear the case.

“This seems to give much more leeway to the state on not complying fully with the video requirement,” Boyd said. “In this case you really couldn’t see whether the test was being done correctly or not.”

He added that in his experience most officers manage to position drivers in front of the camera at an angle that allows viewers to see the details that are necessary to determine how they performed on the sobriety tests.

“If it’s a profile shot or slightly turned toward the camera you can see everything,” Boyd said. “That’s not very difficult to do.”

But Brackett said it’s unreasonable to expect officers to be “Francis Ford Coppola and videotape these things perfectly” while they’re standing on the side of a highway.

“It should be left to the jury to decide whether or not these deficiencies rise to the level of reasonable doubt,” he added.

Last year, Brackett and other solicitors supported two bills that would have prevented trial judges from dismissing DUI cases just because everything that happened during the traffic stop and arrest was not captured on film. But the legislation stalled.

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J. Brooks Davis
802 Coleman Blvd., #200
Mt. Pleasant, SC, 29464-4048 USA
843.225.2255