DUI & Videotape: The Miranda Warning

Most people in South Carolina don’t know that police have to video field sobriety tests and the breath test, except in certain limited circumstances. This is to protect citizens from officers who might not recall the results of such tests accurately or might use incorrect procedures during the tests. A recently decided Court of Appeals case highlights an even more unknown law, which states the police must begin videotaping the investigative stop before even giving Miranda warnings in a DUI investigation.
In State v. Gregg Gerald Henkel, (Opinion No. 5159), the facts were that a citizen had called the police about a possible drunk driver in Greenville County. Sergeant Hiott responded to the area, but not before the suspect vehicle had crashed. When Sergeant Hiott arrived, several officers and EMS was already on the scene, so Sergeant Hiott activated only his back emergency lights, which does not turn on the video camera and audio recording, as it would if he had turned on the front emergency lights. EMS was on the scene and treating the driver, Henkel, in the EMS when Sergeant Hiott first made contact with him.
Sergeant Hiott read Henkel a Miranda warning and then conducted an investigation into the DUI. The officer concluded Henkel was intoxicated and Henkel admitted to driving the vehicle that crashed. Henkel was arrested and placed in Hiott’s patrol car, where the officer turned on the video camera and audio recording and again read Henkel a Miranda warning.
Prior to the trial, Henkel “moved to dismiss the indictment on the ground that neither the field sobriety tests nor the initial Miranda warning were videotaped as required by section 56-5-2953 of the South Carolina Code.” The trial court did not rule on the motion until the testimony was concluded.
During the testimony, Sergeant Hiott testified that the camera was activated as soon as practicable. Since the camera was not turned on until the investigation was partially complete, the evidence did not include any video or audio of the initial Miranda warning, or video of the sobriety tests conducted in the EMS. At the conclusion of the trial, Henkel renewed his motion to dismiss, but the trial court found that since the officer activated the recording as soon as practicable, the video that was submitted “met the requirements of the law.” Henkel was convicted and appealed his conviction.
The law in question in this case is § 56-5-2953 of the South Carolina Code, which states videotaping at the incident scene must: “(a) begin not later than the activation of the officer’s blue lights and conclude after the arrest of a person…or a probable cause determination…; and (b) include the person being advised of his Miranda rights before any field sobriety tests are administered, if the tests are administered.” In certain circumstances, such as when a camera in not operable, it is not fatal to a DUI prosecution not to have videotaped the investigation, but the circumstances are limited. In addition, “Our appellate courts have strictly construed section 56-5-2953 and found that a law enforcement agency’s failure to comply with these provisions is fatal to the prosecution of a DUI case.”
The Appellate Court examined the record and found that the trial court made a factual finding that the officer activated the video as soon as practicable. However, the recording does not include the first Miranda warning given to Henkel, in the EMS, though it does include the audio of the tests given in the EMS. Since there is a requirement that if tests are administered, the Miranda warning must be recorded as well, the Appellate Court ruled that the video did not conform to the law, and the trial court erred in not dismissing the charge against Henkel.
In a nut shell, there are circumstances where an officer can still prosecute a DUI without a videotape as required by the law, but if he does video the incident, it must begin before the officer gives the Miranda warning.
I hope this blog has been helpful, and if you have any questions or comments, please feel free to contact me at The Courtney Law Firm, jimcourtneylaw@ymail.com, or 843-822-9800.

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