State v. Gordon
759 S.E.2d 755
S.C. Ct. App.2014Background
- On Oct. 29, 2011, Gordon was stopped at a checkpoint and given three sobriety tests: HGN, walk-and-turn, and one-leg stand; the arresting officer’s dashcam recorded the encounter.
- Gordon moved to dismiss, arguing the State’s recording did not adequately capture the HGN because his head was not visible; the magistrate denied the motion and a jury convicted Gordon of DUI.
- Gordon appealed to the circuit court; he submitted stills from the dashcam without objection; the circuit court granted dismissal finding the statute requires the defendant’s head be visible during the HGN and that Gordon’s head was not sufficiently visible.
- The State appealed the circuit court’s reversal, arguing the statute only requires the field sobriety tests be recorded (not necessarily the defendant’s head) and contesting the circuit court’s factual finding about visibility.
- The appellate court held the current statute does require recordings to include any field sobriety tests and, for HGN, the defendant’s head must be visible; but vacated the circuit court’s factual finding about visibility and remanded for the magistrate to make findings consistent with the correct statutory interpretation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §56-5-2953(A)(1)(a)(ii) requires the defendant’s head be visible during recorded HGN test | Gordon: recording failed statute because head was not visible during HGN | State: statute requires recording of field sobriety tests but not that defendant’s head be visible | Court: current statute expressly requires recordings to "include any field sobriety tests"; for HGN that means the head must be visible; affirmed that visibility is required |
| Whether the circuit court properly reversed magistrate based on factual finding that head was not sufficiently visible | Gordon: circuit court found head not visible and dismissed | State: circuit court lacked evidentiary basis and improperly engaged in fact-finding on appeal | Court: circuit court improperly made factual findings (appellate court cannot find facts); vacated that factual finding and remanded to magistrate to make findings applying the correct legal standard |
Key Cases Cited
- Murphy v. State, 392 S.C. 626, 709 S.E.2d 685 (Ct.App. 2011) (prior-version interpretation that recording must capture defendant’s conduct)
- Town of Mt. Pleasant v. Roberts, 393 S.C. 332, 713 S.E.2d 278 (2011) (purpose and strict compliance of §56-5-2953; per se dismissal for unmitigated violations)
- City of Rock Hill v. Suchenski, 374 S.C. 12, 646 S.E.2d 879 (2007) (standard for reviewing lower courts in appeals from magistrate)
- State v. Elwell, 403 S.C. 606, 743 S.E.2d 802 (2013) (statutory interpretation principles; plain meaning controls)
- City of Greer v. Humble, 402 S.C. 609, 742 S.E.2d 15 (Ct.App. 2013) (appellate courts may not make factual findings)