Section 56-5-2953 of the South Carolina Code of Laws requires “the video recording at the incident site” to begin when the police officer activates the blue lights, “include any field sobriety tests administered,” and show the DUI arrest and Miranda rights advisement. These protections are so important that a law enforcement agency cannot be “excused from noncompliance with mandatory video-recording requirements” by failing to purchase and install in its police cars the necessary videotape equipment. Town of Mt. Pleasant v. Roberts, 393 S.C. 332, 713 S.E.2d 278 (2011). Section 56-5-2953 also requires videotaping of the “entire breath test procedure” including “the person taking or refusing the breath test,” “the actions of the breath test operator while conducting the test,” and “the person’s conduct during the required twenty-minute pre-test waiting period.” Admitting these videotapes into evidence during a DUI trial allows jurors to make an informed decision based on all available evidence and helps ensure that any conviction is reliable and based on proof beyond a reasonable doubt.
On May 29, 2013, the South Carolina Supreme Court weakened these protections when it decided State v. Hercheck and State v. Elwell. In these cases, the Court held “that a twenty minute pre-test video recording is not required when an arrestee has refused the breath test.” The Court reasoned, “Once an arrestee refuses the breath test, the evidence gathering portion [of the investigation] is over.” The Court did not want to require the arresting officer “to undergo a useless and absurd act.”
Requiring law enforcement to complete the statutory procedure, however, is neither useless nor absurd. Section 56-5-2950(B) requires the arresting officer to inform the person, both orally and in writing, of the person’s legal rights regarding taking the breath test. The twenty minute waiting period gives the person the opportunity to consider this information and make an informed decision. The twenty-minute waiting period also gives the jurors additional relevant evidence to consider before reaching a verdict. After all, videotaping can be “evidence gathering” for the person accused of DUI.
Because these cases involve statutory interpretation, the General Assembly could amend section 56-5-2953 to make it clear that videotaping the twenty-minute waiting period is required or the charge must be dismissed. Until then, someone arrested for DUI should be aware of the potential impact of these two cases. While many people will want to refuse the breath test, a person does not have to inform the officer of that decision until the end of the twenty minute waiting period, especially if the person wants the jurors to see his or her behavior and demeanor at the breath test site.