DUI lawyers across the state have been waiting for some time for a decision from the Court of Appeals on State v. Herchek – the issue being whether the failure to record a defendant’s conduct at the breath testing site for the full 20 minute observation period warrants a dismissal when the defendant refuses the test.
On April 13, 2011, the Court of Appeals issued an unpublished opinion affirming the dismissal of Herchek’s driving under the influence charge. Because it is an unpublished opinion, it cannot be relied on as precedent. Despite this, it obviously is an indication of how the Courts should decide the issue.
The magistrate in Herchek’s case dismissed the charge based on the officer’s failure to record the defendant’s conduct for the 20 minute observation period required by § 56-5-2953. The State then appealed to the Circuit Court, and the Circuit Court affirmed the dismissal in a written order dated May 14, 2009. The State then appealed to the Court of Appeals, resulting in the unpublished opinion affirming the Circuit Court.
At the time Herchek went to trial on his DUI, SLED policy instructed officers not to record the entire 20 minute observation period when there was a refusal, and this is how highway patrol and other agencies were trained, despite the clear language in the statute which required the recording – although the DUI law has changed since Herchek was charged, the relevant portion still requires videotaping of the observation period:
§ 56-5-2953. Incident site and breath test site video recording
(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. . . .
(2) The video recording at the breath test site 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. . . .
Since the last appeal was filed, SLED has changed their policy to require officers to record the observation period. The bottom line is that SLED policy does not ever trump a statute anyway, it is only there to provide guidance to the officer. If SLED’s policy contradicts law, whether statutory or appellate, the relevant law controls.
Congratulations to Columbia attorney Joe McCulloch for taking on this issue and winning, both in the appellate courts and in the resulting change in SLED policy.
