In State v. Kenneth Taylor, decided last month, the SC Supreme Court reversed over a decade of opinions interpreting SC Code § 56-5-2953, finding that the legislature’s mandate of dismissal when an officer fails to show Miranda on the roadside video is “absurd.”

The remedy for an officer’s failure to comply with the mandatory requirement to show video of the reading of Miranda rights will no longer result in dismissal of the DUI charges but will be treated as any other Miranda violation – suppression of any statements made in response to questioning while the defendant was in custody.

What does this mean for the remainder of the mandatory requirements in SC’s DUI videotape law? If the Supreme Court can ignore the intent of the legislature, the plain language of the statute, and their prior opinions to forbid dismissal as a remedy for one part of 56-5-2953, why should the rest of the statute be valid?

For now, though, the remedy for an officer’s failure to comply with the mandatory requirements of 56-5-2953 is still dismissal, unless 1) there is a valid excuse as provided in the statute, or 2) the officer’s violation was a failure to show the reading of Miranda rights on the roadside video.

Failure to Comply with SC Code § 56-5-2953 Means Dismissal

SC Code § 56-5-2953 requires that a police officer record a DUI suspect’s conduct both at the incident site and in the Datamaster room, and the remedy for failure to comply with the statute, per the plain language of the statute and the SC Supreme Court’s decisions in City of Rock Hill v. Suchenski and subsequent cases, is the dismissal of the DUI charges.

At the incident site (the traffic stop), the video recording must:

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

(ii) include any field sobriety tests administered, and

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

At the breath test site (the Datamaster room at the jail or police station), another video recording must:

(a) include the entire breath test procedure, the person being informed that he is being video recorded, and that he has the right to refuse the test;

(b) include the person taking or refusing the breath test and the actions of the breath test operator while conducting the test; and

(c) also include the person’s conduct during the required twenty-minute pre-test waiting period, unless the officer submits a sworn affidavit certifying that it was physically impossible to video record this waiting period.

The language is mandatory – the legislature uses the word, “must,” instead of “may” or “should.” And the remedy is dismissal of the DUI charges, unless the officer has a valid excuse under SC Code § 56-5-2953(B):

Failure by the arresting officer to produce the video recording 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 the arresting officer submits a sworn affidavit certifying that the video recording equipment at the time of the arrest or probable cause determination, or video equipment at the breath test facility was in an inoperable condition, stating which reasonable efforts have been made to maintain the equipment in an operable condition, and certifying that there was no other operable breath test facility available in the county or, in the alternative, submits a sworn affidavit certifying that it was physically impossible to produce the video recording because the person needed emergency medical treatment, or exigent circumstances existed. In circumstances including, but not limited to, road blocks, traffic accident investigations, and citizens’ arrests, where an arrest has been made and the video recording equipment has not been activated by blue lights, the failure by the arresting officer to produce the video recordings required by this section is not alone a ground for dismissal. However, as soon as video recording is practicable in these circumstances, video recording must begin and conform with the provisions of this section.

This applies to all of the mandatory requirements of § 56-5-2953 except the requirement that an officer show Miranda on the roadside video, because the SC Supreme Court has now made an exception for when an officer fails to show Miranda rights being read to the defendant.

State v. Kenneth Taylor: No Dismissal when Officer Fails to Show Miranda on Video

Last month, the SC Supreme Court held in State v. Kenneth Taylor that 1) § 56-5-2953 requires that an officer “show” the reading of Miranda rights on the video – including both audio and video of both officer and defendant, and 2) there is no remedy for the officer’s failure to show the reading of Miranda rights.

But wait, didn’t they say that the remedy is suppression of a defendant’s statements taken in violation of Miranda?

What is the Remedy for a Miranda Violation?

The remedy for a Miranda violation is always suppression of any statements that were made in response to questioning while the defendant was in custody.

The remedy for a violation of § 56-5-2953’s mandatory videotape requirements is dismissal of the DUI.

In Taylor, the Court found that, if the officer fails to show Miranda rights being read on the video, the remedy is suppression of statements taken in violation of Miranda. That’s the case in any Miranda violation, however, regardless of whether the officer complied with § 56-5-2953, because that is federal constitutional law. The SC Supreme Court isn’t announcing some new remedy for the violation of § 56-5-2953.

What they did, however, is announce that there is no remedy for an officer’s violation of one part of § 56-5-2953, leaving DUI defense attorneys and DUI prosecutors around the state wondering which part of § 56-5-2953 the SC Supreme Court will rewrite next?

DUI Defense Lawyers in Charleston, SC

Charleston, SC criminal defense attorney Grant B. Smaldone focuses on criminal defense and criminal trial practice in the Charleston, Dorchester, Georgetown, and Myrtle Beach areas of South Carolina.

If you have been charged with a crime, call now at (843) 808-2100 or get in touch online to talk to an experienced SC defense lawyer today.