What rights do I have if I’m charged with DUI in Myrtle Beach?
Your constitutional rights apply in a DUI case just like any other criminal case, but you also have DUI-specific rights that are guaranteed by SC’s DUI and implied consent laws.
What are those rights and when do they apply?
If you have been arrested and charged with DUI in Myrtle Beach, SC, you have the same constitutional rights as any person who has been accused of any other type of crime, including:
- The right to a reasonable bond to secure your release until the trial of your case;
- The right to an attorney if you will be sentenced to jail;
- The right to remain silent and to not provide evidence against yourself;
- The right to testify at your trial;
- The right to subpoena witnesses to testify at your trial;
- The right to have the state prove their case against you beyond any reasonable doubt; and
- The right to a trial by jury.
But you also have “statutory rights” that are specific to DUI charges in SC – what are they?
What Rights Do I Have if I’m Charged with DUI in SC?
There are additional rights that you have if you have been charged with DUI in Myrtle Beach, SC that are found in SC’s DUI laws.
SC’s Mandatory Videotape Law
When a police officer initiates a DUI-related traffic stop in SC, they must follow the requirements of SC’s mandatory videotape laws. If they do not, your case should be dismissed pursuant to a line of SC appellate opinions beginning with City of Rock Hill v. Suchenski.
The videotape requirements on the roadside include:
- The officer must videotape the traffic stop – the video must begin no later than the activation of the officer’s blue lights and it must include the arrest;
- The officer must read Miranda rights to you on the video; and
- All field sobriety tests must be recorded and visible – it’s not enough that the videotape is recording if the video doesn’t show the field sobriety tests.
There are also videotape requirements in the Datamaster (breathalyzer) room – the video from the Datamaster room must include:
- The officer reading the implied consent warnings;
- The officer checking the suspect’s mouth for foreign objects;
- The 20-minute observation period before the test is given;
- The officer informing the suspect that the test will be videotaped; and
- The officer informing the suspect that they have the right to refuse the test.
There are additional requirements for officers when making a DUI arrest or administering the breathalyzer test, but not all result in dismissal if the officer fails to comply.
Statutory provisions that are not mandatory (it’s mandatory if the law’s language says “shall” or “must” as opposed to “should” or “may”) and violations of SLED policy and procedure do not result in dismissal of DUI charges, but they can still result in suppression of the breathalyzer results or other evidence.
What Rights Do I Have Under SC’s Implied Consent Laws?
You also have rights that are specific to the breathalyzer test under SC’s implied consent laws. SC Code Section 56-5-2950 says that “no tests may be administered or samples obtained” unless the officer gives the implied consent warnings – both verbally and in writing – on the videotape and before the test is given.
The implied consent warnings include:
- You do not have to take the test, but your license may be suspended, and your refusal can be used against you in court;
- You have the right to obtain an independent blood alcohol test and the officer must assist you in getting the independent test by taking you to a hospital or other testing facility; and
- You have the right to request an administrative hearing to challenge the officer’s decision to suspend your license.
You Have the Right to an Independent Blood Alcohol Test
You have the right to ask for an independent blood alcohol test:
The person tested or giving samples for testing may have a qualified person of the person’s own choosing conduct additional tests at the person’s expense and must be notified in writing of that right. A person’s request or failure to request additional blood or urine tests is not admissible against the person in the criminal trial. The failure or inability of the person tested to obtain additional tests does not preclude the admission of evidence relating to the tests or samples obtained at the direction of the law enforcement officer.
If you ask for an independent blood alcohol test, the officer must also provide “affirmative assistance” in getting the test – if the officer fails to provide affirmative assistance, the breathalyzer results may be suppressed at your trial:
The arresting officer shall provide affirmative assistance to the person to contact a qualified person to conduct and obtain additional tests. Affirmative assistance, at a minimum, includes providing transportation for the person to the nearest medical facility which performs blood tests to determine a person’s alcohol concentration. If the medical facility obtains the blood sample but refuses or fails to test the blood sample to determine the person’s alcohol concentration, SLED shall test the blood sample and provide the result to the person and to the arresting officer. Failure to provide affirmative assistance upon request to obtain additional tests bars the admissibility of the breath test result in a judicial or administrative proceeding.
Subpoena Power in DUI Cases
If you are charged with DUI, DUAC, or felony DUI in SC, you also have the right to subpoena witnesses and documents.
Although some magistrates and municipal judges in SC will refuse to issue subpoenas for documents in DUI first offense cases (court administration instructs them not to issue subpoenas duces tecum in any magistrate-level misdemeanor offenses), you still have the right to compulsory process.
SC Code Section 56-5-2934 confirms this:
Notwithstanding any other provision of law, a person charged with a violation of Section 56-5-2930, 56-5-2933, or 56-5-2945 who is being tried in any court of competent jurisdiction in this State has the right to compulsory process for obtaining witnesses, documents, or both, including, but not limited to, state employees charged with the maintenance of breath testing devices in this State and the administration of breath testing pursuant to this article. This process may be issued under the official signature of the magistrate, judge, clerk, or other officer of the court of competent jurisdiction.
And it specifically includes the right to subpoena breath testing software:
The term “documents” includes, but is not limited to, a copy of the computer software program of breath testing devices. SLED must produce all breath testing software in a manner that complies with any and all licensing agreements. This section does not limit a person’s ability to obtain breath testing software directly from the manufacturer or distributor.
SC Code Section 56-5-2935 also clearly states that you have the right to compulsory process for documents or witnesses in a DUI case in SC:
Notwithstanding any other provision of law, a person charged with a violation of Section 56-5-2930, 56-5-2933, or 56-5-2945 who is being tried in any court of competent jurisdiction in this State must have the right of trial by jury. A person charged with one or more of these offenses shall enjoy the right to a speedy and public trial by an impartial jury, to be fully informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses, documents, or both, and the right to be fully heard in his defense by himself or by his counsel or, by both.
But wait… isn’t this meaningless if the judge refuses to issue the subpoena for me?
No – Section 56-5-2934 authorizes any officer of the court to issue subpoenas in DUI cases in SC. Although there are no appellate opinions or ethics opinions on this subject that I am aware of, the language in 2934 is clear:
This process may be issued under the official signature of the magistrate, judge, clerk, or other officer of the court of competent jurisdiction.
Who is an officer of the court? Your attorney is…
DUI Defense in Myrtle Beach, SC
Attorney Daniel A. Selwa represents clients charged with DUI, DUAC, felony DUI, and other DUI-related crimes in Myrtle Beach, Conway, Georgetown, and Horry County, SC.
If you have been arrested and charged with DUI in Myrtle Beach, call now at (843) 492-5449 or send an email to speak with a SC DUI defense attorney today.