An important case by the Court of Appeals provides a new defense to DUI field sobriety tests. On June 11, 2014 the South Carolina Court of Appeal issued an opinion in State v. Gordon that a persons head must be “sufficiently visible through the entire procedure of the (HGN) eye test. Failure to do so, without an exception, will result in the dismissal of the case. This is an important case in the defense of a DUI charge.
What happened in this case?
On October 29, 2011 the South Carolina Highway patrol set up a license and registration checkpoint where the defendant, Cody Gordon was stopped. During that stop the defendant was asked to step out of his vehicle and perform a DUI field sobriety test. The three standardized tests were performed and recorded by the officer’s dash cam video. Following the tests the defendant was arrested for DUI. Prior to trial the defendant moved to dismiss the charge based on several grounds including the State’s failure to sufficiently record the HGN test because the defendant’s head was not on the recording during the test. The Magistrate denied the motion and the defendant was convicted of DUI following a jury trial. An appeal to the Circuit Court resulted in the Court granting the motion to dismiss.
What was the legal issue?
In South Carolina a person who commits the offense of Dui must have his conduct at the incident site video recorded which includes any field sobriety tests. See §56-5-2953. The purpose of this section is to create direct evidence of a DUI arrest. Town of Mt. Pleasant, 393 S.C. at 347, 713 S.E.2d at 285. Dismissal of a DUI charge is an appropriate remedy when a violation is not mitigated by an exception.
Police must record your head during HGN test
The State argued that the statute requires the recording include the field sobriety tests but not that the defendant’s head must be visible. The Court disagreed and went on to say that the legislature clearly intended strict compliance with the provisions of the mandatory video recording and failure to comply would result in a sever sanction. Because the purpose of the video recording is to create direct evidence of the arrest, if the actual tests cannot be seen on the recording, the requirement is pointless.
In this case, the defendant’s head was not sufficiently visible through the entire administration of the HGN test and therefore was not in compliance with mandatory requirements of the statute.
Charleston DUI Attorney
What this opinion really tells the State is that police are in control of a DUI investigation and they are trained in its administration. Adopting a near enough is good enough approach will not work or be tolerated as stated by the statute’s strict compliance requirement.
If you are facing a DUI arrest and need help defending your case, contact Dale Savage an experienced and trusted Charleston DUI attorney at (843) 530-7813 to discuss your case.