When police record a DUI arrest in South Carolina, the video is often the most important piece of evidence in the case. Police reports are written after the fact by the officer who made the arrest, but a video shows what actually happened on the side of the road and in the breath test room.
That is why South Carolina law requires officers to record certain parts of a DUI arrest, and why our Charleston DUI defense lawyers request and review the videos as one of the first steps in defending a DUI case. So what exactly must be recorded, and what happens if the police fail to record it? In this article, we explain South Carolina’s DUI video-recording law, the exceptions that excuse an officer from recording, and how courts decide whether a missing or defective video leads to dismissal or suppression of evidence.
Quick Answer: Under S.C. Code Section 56-5-2953, a person arrested for DUI, DUAC, or felony DUI in South Carolina must have their conduct recorded at the incident site and at the breath test site, subject to the statute’s exceptions. If the officer fails to make a required recording without a valid statutory excuse, the charge can be dismissed, although some recording defects call for suppression of the affected evidence rather than automatic dismissal.
Table of Contents
- Does South Carolina Require Police to Record a DUI Arrest?
- What Must Be Recorded at the Scene of a DUI Stop?
- Do Miranda Warnings Have to Be Seen and Heard on the Video?
- Does the Video Have to Show the HGN Test Clearly?
- What Must Be Recorded at the Breath Test Site?
- When Is an Officer Excused From Recording a DUI Arrest?
- What Happens If the Police Do Not Record a DUI Arrest?
- Will a DUI Be Dismissed If Part of the Video Is Missing?
- What If You Were Out of the Camera’s View During the Stop?
- Which South Carolina Cases Control DUI Video Requirements?
- How Can the DUI Video Help Your Defense?
- How Can a Charleston DUI Lawyer Help?
Does South Carolina Require Police to Record a DUI Arrest?
Yes. South Carolina has a statute that requires police to video record specific parts of a DUI arrest. S.C. Code Section 56-5-2953 applies to a person who violates the DUI statute (Section 56-5-2930), the Driving With an Unlawful Alcohol Concentration statute (Section 56-5-2933), or the felony DUI statute (Section 56-5-2945). The law requires two recordings: one at the incident site, where the stop and arrest take place, and one at the breath test site, where the person is asked to provide a breath sample.
The South Carolina courts have explained that the purpose of the recording requirement is to preserve direct evidence of what happened during a DUI arrest. A DUI charge often comes down to an officer’s opinion about whether a person was impaired, and the video gives the judge or jury an objective view of the person’s speech, balance, and behavior. The legislature last rewrote the video statute in 2008, and those changes took effect on February 10, 2009. Since then, the most significant developments have come from the courts, not from new legislation.
The following table summarizes what South Carolina’s DUI video statute requires at each stage of a DUI arrest:
| Incident Site (Traffic Stop and Arrest) | Breath Test Site | |
|---|---|---|
| Governing provision | S.C. Code Section 56-5-2953(A)(1) | S.C. Code Section 56-5-2953(A)(2) |
| When recording must begin | No later than when the officer activates the blue lights, or as soon as practicable in roadblocks, traffic accident investigations, and citizens’ arrests when recording was not activated by blue lights | In time to capture the required advisements and the person’s taking or refusing the test, including the person’s conduct during the 20-minute pre-test waiting period when a breath test is administered |
| What the video must show | Any field sobriety tests; the arrest, or in a felony DUI case the probable cause determination; and the person being advised of their Miranda rights, with both the officer and the person seen and heard | The entire breath test procedure; the person being told they are being recorded and have the right to refuse; the person taking or refusing the test; the operator’s actions while conducting the test; and, when a breath test is administered, the person’s conduct during the required 20-minute pre-test waiting period unless the statutory affidavit exception applies |
| Common excuses for a missing recording | Inoperable equipment affidavit; physical impossibility affidavit for emergency medical treatment or exigent circumstances; roadblocks, accident investigations, and citizens’ arrests; other valid reasons | The same statutory exceptions; an affidavit of physical impossibility can excuse recording the waiting period; no waiting period recording is needed after a refusal when no test is given |
What Must Be Recorded at the Scene of a DUI Stop?
At the incident site, the recording must begin no later than when the officer activates the patrol car’s blue lights. Under Section 56-5-2953(A)(1), the incident site video must include:
- any field sobriety tests the officer administers;
- the arrest for DUI or DUAC, or, in a felony DUI case, the officer’s determination that probable cause exists to arrest; and
- the person being advised of their Miranda rights.
Before the 2009 amendment, the statute required officers to give Miranda warnings before administering any field sobriety tests. The current version does not contain that sequencing requirement. The statute also provides that refusing to take a field sobriety test does not constitute disobeying a police command.
Do Miranda Warnings Have to Be Seen and Heard on the Video?
Yes. In State v. Taylor, 436 S.C. 28, 870 S.E.2d 168 (2022), the South Carolina Supreme Court held that for the incident-site video to “show” the person being advised of their Miranda rights, both the officer and the defendant must be seen and heard during the advisement. A video that captures the officer reading the warnings off camera, or that shows the defendant but has no usable audio, does not satisfy the statute.
Audio problems are more common than many people realize. Wind, road noise, a microphone that was never turned on, or a patrol car positioned so that the camera does not capture the conversation can all leave important parts of the arrest without usable sound.
When our lawyers review a DUI video, we pay close attention to whether both the officer and our client can be seen and heard when the Miranda warnings are given. As explained below, however, the Taylor decision also changed the remedy for this type of violation going forward. For more on the warnings themselves, see our article on Miranda warnings in South Carolina.
Does the Video Have to Show the HGN Test Clearly?
The horizontal gaze nystagmus (HGN) test is often called the “pen test.” The officer asks the person to keep their head still and follow a pen or other object with only their eyes as the officer moves it back and forth, and the officer watches for an involuntary jerking of the eyes called nystagmus. Because the officer’s conclusions about the HGN test are based on what the officer claims to see in the person’s eyes, the video may not allow a viewer to independently assess the eye movements.
In State v. Gordon, 414 S.C. 94, 777 S.E.2d 376 (2015), the South Carolina Supreme Court agreed that the person’s head must be visible on the video during the HGN test. The Court also held that the statute does not require a recording close enough to show the person’s eye movements.
In Mr. Gordon’s case, the Court found that his face did appear on the video and reinstated his conviction. The Court further explained that if a poor-quality recording of the HGN test were inadmissible, the proper remedy would generally be to exclude that portion of the video and the testimony about the test, not necessarily to dismiss the DUI charge.
What Must Be Recorded at the Breath Test Site?
After an arrest, officers usually take the person to a jail or police station and ask them to provide a breath sample on the DataMaster breath test machine. Under Section 56-5-2953(A)(2), the breath test site video must include:
- the entire breath test procedure;
- the person being informed that they are being recorded and that they have the right to refuse the test;
- the person taking or refusing the breath test, and the actions of the breath test operator while conducting the test; and
- the person’s conduct during the required 20-minute waiting period before the test, unless the officer submits a sworn affidavit certifying that it was physically impossible to record the waiting period.
If the person refuses the breath test and no test is administered, the officer does not have to keep recording for a 20-minute waiting period that never takes place. The South Carolina Supreme Court reached that conclusion in State v. Elwell, 403 S.C. 606, 743 S.E.2d 802 (2013), when interpreting the former statute’s substantially similar waiting-period language. The refusal itself, however, must still be recorded.
Under the former version of the statute, officers also had to record Miranda warnings at the breath test site. In State v. Sawyer, 409 S.C. 475, 763 S.E.2d 183 (2014), the Supreme Court affirmed suppression of evidence where a 2007 breath-site video had no audio of the Miranda and implied-consent advisements required at that time.
The 2009 amendment moved the Miranda recording requirement to the incident site, so the current statute does not require officers to record Miranda warnings again at the breath test site. If you refused the breath test, our article on what happens if you refuse a breath test in South Carolina explains the license suspension and your right to challenge it.
When Is an Officer Excused From Recording a DUI Arrest?
Section 56-5-2953(B) lists circumstances in which the failure to produce a video is not, by itself, grounds for dismissal. These exceptions include:
- Inoperable equipment. The arresting officer submits a sworn affidavit identifying the inoperable video equipment, stating the reasonable efforts made to maintain it, and certifying that no other operable breath test facility was available in the county.
- Physical impossibility. The arresting officer submits a sworn affidavit certifying that it was physically impossible to produce the recording because the person needed emergency medical treatment or because exigent circumstances existed.
- Stops without blue lights. In circumstances such as roadblocks, traffic accident investigations, and citizens’ arrests, the officer may not activate blue lights before first encountering the person. In these situations, the recording must begin and comply with the statute as soon as practicable.
- Other valid reasons. The court may excuse the failure to produce a video for any other valid reason, based on the totality of the circumstances.
Not every exception requires an affidavit. In Teamer v. State, 416 S.C. 171, 786 S.E.2d 109 (2016), the Supreme Court distinguished the affidavit-based exceptions for inoperable equipment and physical impossibility from the exceptions for roadblocks, accident investigations, citizens’ arrests, and other valid reasons. The statute also allows the defendant to offer evidence about the officer’s failure to produce the video.
In a case involving a traffic accident and an ambulance, State v. Henkel, 413 S.C. 9, 774 S.E.2d 458 (2015), the Supreme Court held that the officer had to begin recording and comply with the statute once it became practicable, but did not have to go back and repeat warnings or tests given before then. If you were stopped at a checkpoint, our article on whether DUI and license checkpoints are legal in South Carolina explains the rules that apply to those stops.
What Happens If the Police Do Not Record a DUI Arrest?
If the officer fails to make a required recording and none of the statutory exceptions apply, the charge can be dismissed. The South Carolina Supreme Court approved dismissal as the remedy for an unexcused failure to record in City of Rock Hill v. Suchenski, 374 S.C. 12, 646 S.E.2d 879 (2007), a DUAC case where the camera ran out of tape before the arrest.
In Town of Mount Pleasant v. Roberts, 393 S.C. 332, 713 S.E.2d 278 (2011), the Court affirmed the dismissal of a DUI charge where the town had left its patrol cars without video cameras for a prolonged period and could not rely on that failure as a valid excuse. Both of these cases were decided under the version of the statute in effect before 2009.
The officer’s affidavit must also comply with the statute. In City of Greer v. Humble, 402 S.C. 609, 742 S.E.2d 15 (Ct. App. 2013), the officer submitted an affidavit stating that the video equipment was inoperable and that “reasonable efforts” had been made to maintain it.
The Court of Appeals held that the affidavit was insufficient because it did not identify which efforts were made, as the statute requires, and the officer’s testimony at the dismissal hearing did not cure the defective affidavit. The record also supported the finding that the police had knowingly continued to use faulty equipment rather than having it repaired. The Court of Appeals reinstated the dismissal of the DUI charge.
Will a DUI Be Dismissed If Part of the Video Is Missing?
Not necessarily. This is the most important change in South Carolina’s DUI video law in recent years. For many years, DUI defense lawyers argued that any failure to comply with the video statute required dismissal. The South Carolina Supreme Court has clarified that some defects in a recording do not automatically require dismissal, even though an unexcused failure to create a required recording can still lead to dismissal.
In State v. Taylor, the Supreme Court held that when the incident-site video fails to show the Miranda advisement as the statute requires, the remedy is suppression of evidence tainted by that failure, not automatic dismissal of the charge. The Court affirmed the dismissal in Mr. Taylor’s own case only because the State had not preserved its argument about the remedy.
In State v. Lowery, 443 S.C. 473, 905 S.E.2d 361 (2024), the Supreme Court held that the statute requires the officer to create the recording, not that the prosecution play any particular portion of it for the jury. In that case, a redacted video played at trial froze before showing all the field sobriety tests and the Miranda warnings.
The Court held that dismissal was not required on those facts, noting, among other things, that the defendant had not claimed the agreed-upon redacted video lacked those events, had not sought suppression of statements made to the officer who administered the tests, and had not objected to that officer’s testimony about the tests. The Court cautioned, however, that testimony about field sobriety tests or statements made after the Miranda warnings may risk exclusion if the State does not offer the corresponding recording.
As a result, the question today is not simply whether the video is perfect. A court will look at which required event is missing, whether a compliant recording was ever created, whether a statutory exception applies, and what evidence the State is trying to use. In our experience, even when a video defect does not lead to a dismissal, suppressing the officer’s testimony about field sobriety tests or a defendant’s statements can significantly weaken the State’s case.
What If You Were Out of the Camera’s View During the Stop?
Being out of the camera’s view for part of the stop does not automatically violate the statute. In State v. Taylor, 411 S.C. 294, 768 S.E.2d 71 (Ct. App. 2014), which is a different case from the 2022 Supreme Court decision with the same name, the defendant was briefly out of view while the officer repositioned a car.
The Court of Appeals held that no violation occurred because the video still captured every event the statute requires, and no affidavit was necessary. The result may differ when a required event, such as a field sobriety test or the Miranda warnings, is not shown on video.
Which South Carolina Cases Control DUI Video Requirements?
South Carolina’s appellate courts have decided many cases interpreting the DUI video statute. The following table summarizes the key decisions discussed in this article, in the order they were decided:
| Case | Court and Year | What the Court Held |
|---|---|---|
| City of Rock Hill v. Suchenski, 374 S.C. 12 | Supreme Court, 2007 | The court dismissed the case because the camera ran out of tape before the arrest, and the municipality did not preserve its argument that a statutory exception applied. |
| Town of Mount Pleasant v. Roberts, 393 S.C. 332 | Supreme Court, 2011 | A town could not rely on its prolonged failure to equip patrol cars with cameras as a valid excuse, and the Court affirmed the dismissal. |
| State v. Elwell, 403 S.C. 606 | Supreme Court, 2013 | After a recorded refusal, officers did not have to record a 20-minute waiting period for a breath test that was never given. |
| City of Greer v. Humble, 402 S.C. 609 | Court of Appeals, 2013 | An inoperable equipment affidavit must identify which reasonable maintenance efforts were made, and the officer’s testimony did not cure a deficient affidavit. |
| State v. Sawyer, 409 S.C. 475 | Supreme Court, 2014 | Suppression was affirmed where a breath-site video lacked audio of the advisements required under the former statute. |
| State v. Taylor, 411 S.C. 294 | Court of Appeals, 2014 | Being briefly out of the camera’s view was not a violation because the video captured every event the statute requires. |
| State v. Henkel, 413 S.C. 9 | Supreme Court, 2015 | In an accident case, recording had to begin when practicable, and officers did not have to repeat warnings or tests given before then. |
| State v. Gordon, 414 S.C. 94 | Supreme Court, 2015 | The person’s head must be visible during the HGN test, but the video does not have to show the person’s eye movements up close. |
| Teamer v. State, 416 S.C. 171 | Supreme Court, 2016 | Not every statutory exception requires an affidavit; the affidavit requirement applies to the inoperable equipment and physical impossibility exceptions. |
| State v. Taylor, 436 S.C. 28 | Supreme Court, 2022 | The officer and the defendant must be seen and heard during the incident-site Miranda advisement, and going forward, the remedy for that defect is suppression of tainted evidence rather than automatic dismissal. |
| State v. Lowery, 443 S.C. 473 | Supreme Court, 2024 | The statute requires the officer to create the recording, not that the State play every portion of it at trial, and dismissal was not required on the facts of that case. |
How Can the DUI Video Help Your Defense?
Beyond whether the officer followed the statute, the video is often the best evidence of what actually happened. In our experience defending DUI cases in Charleston, Berkeley, and Dorchester Counties, the video frequently shows things that do not appear in the officer’s report. Someone described as having slurred speech may speak clearly on the recording.
A person who supposedly failed the walk-and-turn test may appear steady, or the video may show the test was given on an uneven shoulder, in poor lighting, or in bad weather. The video may also show that the officer gave the instructions incorrectly or did not score the test according to the standardized training.
At the breath test site, the video allows us to evaluate whether the operator followed the required procedures, whether the 20-minute waiting period was observed, and whether anything happened that could affect the reliability of the result. For more on those issues, see our articles on whether DUI breath tests are reliable in South Carolina and how to defend a DUI in South Carolina.
Because the video is so important, your lawyer should request it early. Once obtained, your lawyer can compare the video to the officer’s report, the breath test records, and other evidence in your case.
How Can a Charleston DUI Lawyer Help?
If you have been arrested for DUI, the video of your arrest may determine whether your case is dismissed, whether key evidence is suppressed, or whether the State can prove its case at trial. The attorneys at Futeral & Nelson have defended DUI cases in the Lowcountry since 2003. We obtain and review incident-site and breath-test-site videos, identify any failure to follow Section 56-5-2953, and use what the video shows to build the strongest defense available. For more information about South Carolina’s DUI laws, you can also download our free book on DUI in South Carolina.
If you have been charged with DUI in Charleston or the surrounding area, call us at 843-284-5500 or contact our Charleston DUI defense lawyers at Futeral & Nelson, LLC today to discuss your case.
