Thursday, October 16, 2008

South Carolina statutory resource which California Legislators could use to frame a proper California DUI statute

California DUI criminal defense attorneys at www.SanDiegoDrunkDrivingAttorney.net and www.SanDiegoDUIhelp.com have been advocating for years that the California DUI police be required to videotape and record an entire California DUI or California Drunk Driving arrest, from observation of driving to the conversations to the field testing to the chemical testing!

Here's a South Carolina statutory resource which California Legislators could use to frame a proper California DUI statute.

SECTION 56 5 2953. Incident site and breath site videotaping; admissibility as evidence; purchase and maintenance of videotaping equipment.

(A) A person who violates Section 56 5 2930, 56 5 2933, or 56 5 2945 must 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, 56 5 2933, or a probable cause determination that the person violated Section 56 5 2945; and
(b) include the person being advised of his Miranda rights before any field sobriety tests are administered, if the tests are administered.
(2) The videotaping at the breath site:
(a) must be completed within three hours of the person’s arrest for a violation of Section 56 5 2930, 56 5 2933, or 56 5 2945 or a probable cause determination that the person violated Section 56 5 2945, unless compliance is not possible because the person needs emergency medical treatment considered necessary by licensed medical personnel;
(b) must include the reading of Miranda rights, the entire breath test procedure, the person being informed that he is being videotaped, and that he has the right to refuse the test;
(c) must include the person taking or refusing the breath test and the actions of the breath test operator while conducting the test;
(d) must also include the person’s conduct during the required twenty minute pre test waiting period, unless the officer submits a sworn affidavit certifying that it was physically impossible to videotape this waiting period. However, if the arresting officer administers the breath test, the person’s conduct during the twenty minute pre test waiting period must be videotaped.
The videotapes of the incident site and of the breath test site are admissible pursuant to the South Carolina Rules of Evidence in a criminal, administrative, or civil proceeding by any party to the action.
(B) Nothing in this section may be construed as prohibiting the introduction of other evidence in the trial of a violation of Section 56 5 2930, 56 5 2933, or 56 5 2945. 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, 56 5 2933, or 56 5 2945 if the arresting officer submits a sworn affidavit certifying that the videotape equipment at the time of the arrest, probable cause determination, or breath test device was in an inoperable condition, stating reasonable efforts have been made to maintain the equipment in an operable condition, and certifying that there was no other operable breath test facility available in the county or, in the alternative, submits a sworn affidavit certifying that it was physically impossible to produce the videotape because the person needed emergency medical treatment, or 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 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 must 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 upon the totality of the circumstances; nor do the provisions of this section prohibit the person from offering evidence relating to the arresting law enforcement officer’s failure to produce the videotape.
(C) A videotape must not be disposed of in any manner except for its transfer to a master tape for consolidation purposes until the results of any legal proceeding in which it may be involved are finally determined.
(D) SLED is responsible for purchasing, maintaining, and supplying all necessary videotaping equipment for use at the breath test sites. SLED also is responsible for monitoring all breath test sites to ensure the proper maintenance of videotaping equipment. The Department of Public Safety is responsible for purchasing, maintaining, and supplying all videotaping equipment for use in all law enforcement vehicles used for traffic enforcement. The Department of Public Safety also is responsible for monitoring all law enforcement vehicles used for traffic enforcement to ensure proper maintenance of videotaping equipment.
(E) Beginning one month from the effective date of this act, all of the funds received in accordance with Section 14 1 208(C)(9) must be expended by SLED to equip all breath test sites with videotaping devices and supplies. Once all breath test sites have been equipped fully with videotaping devices and supplies, eighty seven and one half percent of the funds received in accordance with Section 14 1 208(C)(9) must be expended by the Department of Public Safety to purchase, maintain, and supply videotaping equipment for vehicles used for traffic enforcement. The remaining twelve and one half percent of the funds received in accordance with Section 14 1 208(C)(9) must be expended by SLED to purchase, maintain, and supply videotaping equipment for the breath test sites. Funds must be distributed by the State Treasurer to the Department of Public Safety and SLED on a monthly basis. The Department of Public Safety and SLED are authorized to carry forward any unexpended funds received in accordance with Section 14 1 208(C)(9) as of June thirtieth of each year and to expend these carried forward funds for the purchase, maintenance, and supply of videotaping equipment. The Department of Public Safety and SLED must report the revenue received under this section and the expenditures for which the revenue was used as required in the department’s and SLED’s annual appropriation request to the General Assembly.
(F) The Department of Public Safety and SLED must promulgate regulations necessary to implement the provisions of this section.
(G) The provisions contained in Section 56 5 2953(A), (B), and (C) take effect for each law enforcement vehicle used for traffic enforcement once the law enforcement vehicle is equipped with a videotaping device. The provisions contained in Section 56 5 2953(A), (B), and (C) take effect for a breath test site once the breath test site is equipped with a videotaping device.