In State v. Kinard, decided on June 19, 2019, the SC Court of Appeals reversed a trial court’s dismissal of a DUI charge based on the SC mandatory DUI videotape laws because the defendant’s own behavior made it impracticable for the officer to videotape the Miranda warnings.
Although the trial court correctly ruled that when an officer fails to record any portion of the conduct required under the SC mandatory DUI videotape law, the Court of Appeals found that the trial court did not properly consider the exceptions found in the law that would excuse the officer’s failure to record.
The trial court dismissed the DUI, the Court of Appeals reinstated the charges, and now Kinard is facing trial once again.
When is a DUI Dismissed for Violation of the SC Mandatory DUI Videotape Law?
The arresting officer in Kinard Mirandized the defendant and his videotape was recording, but Kinard cannot be seen on the video, makes no response to the officer, and there is no way to confirm that Kinard, in fact, hears and receives the Miranda warnings.
Before the arresting officer arrives, another officer places Kinard in handcuffs and puts him in the back of a patrol car because Kinard was yelling at EMS workers, yelling at his girlfriend, and then began yelling at the officer.
When the arresting officer arrives, he decides not to remove Kinard from the patrol car, which would have brought him in view of the camera, due to concerns about Kinard’s previous combative behavior.
In most cases, this would justify dismissal of the DUI charges for failure to comply with the SC mandatory DUI videotape law. SC Code Section 56-5-2953(A) says:
(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 video recorded. (1)(a) The video recording at the incident site 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.
The video must include:
- The traffic stop from the moment the blue lights are turned on;
- Any field sobriety tests that are given must be fully shown – if the defendant’s legs or feet are not visible during the walk and turn or one leg stand, for example, it is impossible for the attorneys, judge, or jury to evaluate the defendant’s performance; and
- The person’s arrest.
The video must also show the person being advised of their Miranda rights, at least to the extent that it is verifiable that the Miranda rights are being read to them and they are present to hear them. If any part of the required conduct is not on the videotape, the remedy is dismissal of the DUI charges…
But, sometimes the officer’s failure to record is excusable – if it is impracticable to comply with the videotape requirements, the Court is not going to dismiss your case. When is the failure to record excused by the Court?
When is a DUI Not Dismissed for Violation of the SC Mandatory DUI Videotape Law?
SC Code Section 56-5-2953(B) provides four exceptions to the mandatory requirements of subsection (A):
(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.
The first two exceptions require a valid affidavit – the affidavit must be sworn to and properly executed. Exceptions (3) and (4), however, do not require an affidavit. If the Court finds that, under the totality of the circumstances, the officer is excused from the mandatory requirements found in subsection (A), the Court will deny your motion to dismiss without requiring an affidavit from the officer.
The Court of Appeals found that Kinard’s conduct, in this case, fell under the fourth exception. Although there was also an accident in this case, according to the Court of Appeals, it was Kinard’s conduct that prevented the officer from making a complete recording:
This case also involves an accident. However, the accident is not the reason Kinard could not be videotaped. Deputy Snelgrove testified Kinard was yelling at multiple individuals and was not cooperating with EMS workers when he arrived at the scene. When Deputy Snelgrove attempted to calm him down, Kinard yelled profanities at him and “squared off” at him twice, once with a balled up fist. Kinard’s behavior lead to Deputy Snelgrove putting him in handcuffs, placing him under arrest for disorderly conduct, and putting him in his car. Deputy Snelgrove apprised Trooper Barnett of Kinard’s behavior. Trooper Barnett decided not to attempt to remove Kinard from Deputy Snelgrove’s car based on Kinard’s prior behavior and refusal to respond to him. Thus, similar to Henkel, it was impractical to remove Kinard from the car to capture him on the video. However, unlike Henkel, the practicality of videoing Kinard’s conduct was not due to the accident, but Kinard’s own conduct. Therefore, based on the totality of the circumstances, we find the failure to video Kinard while Trooper Barnett read him his Miranda rights qualifies under the fourth exception under section 56-5-2953(B).
My question is: If Kinard was in another deputy’s patrol car, why didn’t they just turn that deputy’s camera around to record the Miranda warnings? Would that have been “impracticable?” Or, would it have been “impracticable” for the deputy to have moved Kinard to his own patrol car?
According to the officer, Kinard was sitting quietly at the time he read the Miranda rights to him, staring straight ahead. He was not combative, at least not when the Miranda rights were being read. What exactly made it impracticable to record him?
The Court of Appeals says, “it was impractical to remove Kinard from the car,” but, really? They were going to move him to another patrol car, or from the patrol car to the jail, at some point – moving him was not only not impracticable, but a certainty. Did they leave him sitting handcuffed in the patrol car overnight because it was impracticable to remove him from the car?
I don’t see any facts in this opinion that would make the officer’s failure to record excusable or impracticable. This sounds more like the police officer simply failed to follow the law and the Court of Appeals decided to cover for him. It’s exactly the sort of appellate opinion that gives police the green light to not follow the law.
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Attorney Daniel A. Selwa is a DUI defense attorney who accepts cases in Myrtle Beach, Conway, Georgetown, and Horry County, SC.
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