State v. Henkel

GEATHERS, J.,

dissenting.

For the following reasons, I would affirm Appellant’s conviction for DUI.

I agree with the majority’s analysis that a key determination in this case is whether the officer activated his patrol car’s video recording equipment as soon as was practicable, such that the officer’s delay in initiating the recording (non-compliance with subsection 56-5-2953(A)) was excused pursuant to an exception within subsection 56-5-2953(B). However, I disagree with the majority’s conclusion that when this exception is invoked that an officer must still strictly comply with *633subsection (A). To so construe the exception would effectively eviscerate it. See State v. Hercheck, 403 S.C. 597, 743 S.E.2d 798 (2013) (“[E]very word, clause, and sentence must be given some meaning, force, and effect, if it can be done by any reasonable construction” (citation omitted)). Further, the majority’s interpretation disregards the plain meaning of subsection (B). In my view of the terms of this provision, when the exception is properly invoked an officer must, from that point forward, comply with all applicable recording requirements. See § 56-5-2953(B) (“[AJs soon as is practicable in these circumstances, videotaping must begin and conform with the provisions of this section.” (emphases added)). Accordingly, the initiation of the videotaping and conformance must each begin as soon as is practicable. Id. In the instant matter, it was not practicable for the officer to capture video evidence of Appellant receiving his initial Miranda warning or performing the HGN or ABC tests while Appellant was inside the ambulance.

Additionally, I believe that a complete recording of events “at the incident site,” as required by subsection (A), was excused due to the “totality of the circumstances” exception within subsection (B). See § 56-5-2953(A) (requiring “videotaping at the incident site”); § 56-5-2953(B) (providing that “[njothing in this section prohibits the court from considering any other valid reason for the failure to produce the videotape based upon the totality of the circumstances.” (emphases added)). Notably, this case did not involve a typical DUI investigation and subsequent arrest at or near the site of a traffic stop. Instead, this case involved a report of an erratic driver, the erratic driver’s collision with a bridge and overturning of his vehicle, and his subsequent fleeing on foot and jumping a fence. Thus, when the officer first encountered the suspect four hours after the accident, inside of an ambulance, and after the suspect had wandered down the middle of the highway back toward the site of the wreck that was cleared hours earlier, the totality of these circumstances did not require video recording, at least not as contemplated by subsection (A) for a typical DUI stop and investigation.

Accordingly, the totality of the circumstances did not require a video recording in strict compliance with subsection (A). Here, the produced video recording still began as soon as *634was practicable and included audio of the HGN and ABC tests. Thus, in light of subsection (B) and the totality of the circumstances, the produced recording was sufficient.

For these reasons, I respectfully dissent.