Did South Carolina officers have to record a DUI arrest when the arresting car had no camera?

Plain-English summary

In 1999, the Marion police chief asked about a DUI arrest made from a patrol car without a video camera. Camera-equipped backup officers arrived after the stop while another occupant fled. The Attorney General's office read the 1998 law's vehicle-by-vehicle effective date to mean that the arresting officer did not have to produce a tape from a car that had not yet been equipped.

The office reached a different conclusion for backup officers whose cars did have cameras: they should start recording when they arrived. Yet the office said failure to produce a tape would not, by itself, require dismissal. The statute allowed the court to consider exigent circumstances and the totality of the circumstances. The fleeing occupant was one factor for the court, not a finding that the tape was excused in this case. The letter was informal.

Currency note

This opinion was issued in 1999. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Was a DUI officer required to produce video from a car with no camera? A: Under the 1998 law as the opinion read it, the incident-site video provisions took effect for each traffic-enforcement vehicle when that vehicle received a recording device. The AG said the unequipped arresting car did not trigger a tape-production duty.

Were camera-equipped backup officers expected to record?
A: Yes. The office said backup officers with cameras had a duty to videotape the arrest upon arriving at the scene.

Did the lack of a tape automatically dismiss the DUI charge? A: No. The office quoted the statute's treatment of exigent circumstances and other valid reasons for a missing tape. A court could consider those circumstances when deciding a dismissal motion.

Did the fleeing passenger excuse the missing video?
A: The AG did not decide that question. It said the flight was one of several factors a court might consider.

Background and statutory framework

Section 56-5-2953 called for recording conduct at the incident and breath-test sites. Act No. 434 made its recording provisions effective for each traffic-enforcement vehicle once equipped with a camera. The opinion also discussed Part (B), which addressed missing videotapes at trial and left room for exigent circumstances and other reasons considered by the court.

Citations and references

Statute and act: Section 56-5-2953; Act No. 434. The opinion also quoted Sections 56-5-2930 and 56-5-2945 as underlying DUI charge provisions.

Official title

Asking whether South Carolina Code of Laws Section 56-5-2953 requires the videotaping of an individual’s arrest at the incident site for Driving Under the Influence.

Requester

Chief Willie L. Smith, Marion Police Department

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/august-18-1999-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/99aug-18-smith2.pdf

Original opinion text

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The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CH A RLES M . C ON DO N
ATTORN EY G EN ERAL

August 18, 1999
Chief Willie L. Smith
Marion Police Department
P.O. Box 1190
Marion, South Carolina 29571
Dear Chief Smith,
Thank you for your letter to this Office, dated July 26, 1999, which has been referred to me for a response. You ask whether South Carolina Code of Laws Section 56-5-2953 requires the videotaping of an individual's arrest at the incident site for Driving Under the Influence (D.U.I.). By way of background you write the following:
[O]n or about the 171h day of March of this year one of my officers made a D.U.I. arrest. There was not a video camera installed in his patrol car. In addition, no camera is available in this same patrol car to date. After the violator was stopped, other officers arrived to assist as one of the occupants of the violator's vehicle fled on foot. At least one of the back-up officers had a working video camera in his patrol car. When the case went to court, the defense made a motion to dismiss because no video tape was produced .... Ultimately, a new trial was ordered.

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Specifically, you ask whether the arresting officer was required to produce a video tape although his patrol car was not equipped with a camera and whether the back-up officers have a duty to video tape the incident at the point of arrival to assist the arresting officer. Approved by the Governor in June of 1998, South Carolina Code Section 56-5-2953 says, in part: (A) A person who violates Section 56-5-2930 or 56-5-2945 shall have his conduct at the incident site and the breath test site videotaped. (1) The videotaping at the incident site must: (a) begin not later than the activation of the officer's blue lights and conclude after the arrest of the person for a violation of Section 56-5-2930 or a probable cause

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Chief Smith
Page 2
August 18, 1999
determination that the person violated Section 56-5-2945
Thus, under Section 56-5-2953 an officer effecting an arrest for D.U.I. must videotape the incident once he has turned on his blue lights and continue until after the violator's arrest. However, this provision of Section 56-5-2953 does not immediately apply to all law enforcement vehicles. Act No 434 of the 1998 Statutes at Large, which created Section 56-5-2953, also includes Section 18, titled "Time effective." Act No. 434, Sectfon 18 says, in part:

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The provisions in Section 56-5-2953 (A), (B), and (C) take effect for each law enforcement vehicle used for traffic enforcement as soon as the law enforcement vehicle usedfor traffic eriforcement is equipped with a videotaping device. (emphasis added) Therefore, to answer your first question, an officer is not required to produce a video tape of a D. U .I. arrest if his vehicle is not yet equipped with a camera. I have also included, for your information, an opinion of this Office, dated June 2, 1999, which addresses another aspect of Section 56-5-2953. The answer to your second question, whether under the circumstances the back-up officers are required to produce a video tape, is more complicated. A logical reading of Section 56-5-2953 (A) (1) (a) and Section 18 of Act No. 432, discussed above, suggests that when officers equipped with video cameras arrive on the scene to assist the arresting officer, the recording should begin. But once the law enforcement vehicles are equipped with cameras, other applicable provisions of Section 56-5-2953 take effect, as well. Part (B), which governs the introduction of evidence at trial, allows for circumstances in which the failure by the officers to produce a video, though under an obligation to do so, will not result in an automatic dismissal of the D.U.I. charge: Failure by the arresting officer to produce the videotapes required by this section is not alone a ground for dismissal of any charge made pursuant to Section 56-5-2930 or 56-5-2945 if the arresting officer submits a sworn affidavit certifying that ... exigent circumstances existed. Further, in circumstances including, but not limited to, road blocks, traffic accident investigations, and citizens' arrests, where an arrest has been made and the videotaping equipment has not been activated by blue lights, the failure to by the arresting officer to produce the videotapes required by this section is not alone a ground for dismissal. However, as soon as videotaping is practicable in these circumstances, videotaping should begin and conform with the provisions of this section. Nothing in this section prohibits the court from considering any other valid reason for the failure to produce the videotape based on the totality of the circumstances, nor do the provisions of this section prohibit the person from offering evidence relating to the law enforcement officer's failure to produce the videotape. Part (B) makes clear the General Assembly's intent that the failure alone to produce the tape will not result in a dismissal of the charge. The court may consider any exigencies at the incident site, the totality of the circumstances, and any other information relevant to the failure to produce the tape

Chief Smith
Page 3
August 18, 1999
in ruling on the dismissal.
Therefore, in response to your second question, although the officers equipped with cameras, including back-up, do have a duty to videotape the arrest upon their arrival on the scene, the failure to produce a tape under certain circumstances will not preclude a successful D. U .I. charge. The facts you describe, in which one of the occupants fled the scene as the officers arrived, would be only one of several factors the court may consider.

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This letter is an informal opinion only. It has been written by a designated Senior Assistant Attorney General and represents the position of the undersigned attorney as to the specific question asked. It has not, however, been personally scrutinized by the Attorney General not officially published in the manner of a formal opinion. With kind regards, I remain Very truly yours,

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Assistant Deputy Attorney General

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