DUI loophole in SC: ‘This is where defense attorneys make their money’

Police and prosecutors say current state law is putting you and your family in danger because drunken drivers that should be getting convictions are walking away scot-free. 

They say one contributing factor is a loophole in the state’s DUI law. It’s called the “camera loophole.”

South Carolina law requires police to videotape DUI traffic stops. Any small misstep could jeopardize a case — if the driver stumbles out of frame, the driver’s feet can’t be seen, or the shot is too dark. 

One video shows an Horry County officer giving a field sobriety test to a man who ran off the side of the road. He can’t walk in a straight line, and the officer said he also failed an eye test.

But because you can’t clearly see his face, Horry County Solicitor Jimmy Richardson said this situation probably wouldn’t hold up in court. 

“You’re not all the way on. Or, if your feet as you get closer to the car cut off for a second then that throws the case out,” Richardson said.

You read that correctly: a blip, static, or stumble doesn’t just get the video dismissed, it can get the whole case dropped. 

PFC Shon McCluskey with the Myrtle Beach Police Department said a lot of effort goes into setting up the perfect shot. 

“We’ve actually joked around at times saying sometimes you feel like you have to have an entire live PD scene with you to get every aspect of the case to make sure that everything is perfect,” McCluskey said.

McCluskey takes extra precaution to make sure his dash cam video frame is wide enough and there is nothing blocking the shot. But some things are out of his control. 

“And this is where defense attorneys make their money. So, I would suggest that’s probably why the law is so complicated.”
– Solicitor Jimmy Richardson

“We’re not working in perfect environments out here every day. It’s not always sunny, it’s not always calm. Sometimes it can be a little windy, it can be rainy,” McCluskey added. 

News13 investigated the camera loophole in 2016.

Efforts at the legislative level in recent years to change the video requirements have failed. Bills introduced in the House and Senate in 2015, which would add more wiggle room to the video requirements, never moved out of committees.  None has been introduced in the current session. 

News13 asked county solicitor Jimmy Richardson why little progress has been made.  “Some of my best friends are in the legislature,” Richardson replied, “so present company excluded, about 40 percent of our legislature are attorneys.

“Only two or three of them are former prosecutors, the other 39.9 percent are defense attorneys. And this is where defense attorneys make their money. So, I would suggest that’s probably why the law is so complicated.”

South Carolina’s per-mile rate of DUI fatalities is among the highest in the nation every year. A report released last year ranks the Palmetto State second in the U.S. for drunken driving deaths. 

There has been little effort to fix the law.  Attorney and South Carolina Senator Stephen Goldfinch said it’s complicated because lawmakers are trying to balance the constitutional rights of everyone. 

“Even if they are the lowest of the low, the murderers, the DUI drivers that kill people, the people that none of us wants to protect, we have a legal duty, a constitutional duty to protect,” Goldfinch said. 

Goldfinch said video evidence isn’t being tossed out of cases as often as law enforcement and advocates claim, but he admitted there are problems with the law.

“There are cases out there that show us there have been problems in past history in regards to the loophole that you’re talking about,” Goldfinch said.

“And I think there are some cases where we could probably close that loophole on. But we’ve got to be careful not to interject ourselves into the middle of the court system and the judicial system and the province of the judge” Goldfinch said.

Richardson also said that closing any DUI loopholes may need to come from the judges instead of the lawmakers. 

“Case law will probably be the way to change that, saying that it doesn’t have to be 100 percent, it’s what is reasonable under the circumstances,” Richardson said. “And just with those four or five words, you fix the entire system.”

The South Carolina chapter of Mothers Against Drunk Driving released a three-year report last year. It found that DUI cases that were resolved in less than a year resulted in a 52 percent conviction rate compared to 33 percent in cases that dragged on for more than a year. 

Copyright 2019 Nexstar Broadcasting, Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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