State v. Hercheck
403 S.C. 597
S.C.2013Background
- Hercheck arrested for DUI first offense on Dec. 10, 2006 after collision on SC-48.
- Arrestee refused breath test; conduct during refusal was videotaped.
- Officer stopped videotaping after arrestee refused the test and placed him in custody.
- Magistrate dismissed for failure to video a 20-minute pre-test waiting period; only 12 minutes were recorded.
- Circuit court upheld the magistrate’s dismissal; court of appeals affirmed the dismissal in Hercheck’s case.
- This Court granted certiorari to review the court of appeals’ decision and held the 20-minute pre-test videotape is not required when the arrestee refuses the breath test.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does 56-5-2953(A)(2)(d) require a 20-minute pre-test video when breath test is refused? | Hercheck argues the statute requires the full 20-minute video. | State argues the 20-minute video applies only if a breath test is administered. | No; statute does not require video if no test is administered. |
| Should the totality-of-the-circumstances exception apply under 56-5-2953(B)? | State contends totality of circumstances could override the video rule. | Hercheck argues exception should apply if tape not available. | Not reached; dispositive issue is statutory interpretation. |
Key Cases Cited
- Parker v. State, 271 S.C. 159, 245 S.E.2d 904 ((1978)) (breath-test foundation prerequisites; waiting period relevance)
- Jansen v. State, 305 S.C. 320, 408 S.E.2d 235 ((1991)) (waiting period is futile if no test administered)
- State v. Elwell, 396 S.C. 330, 721 S.E.2d 451 ((Ct.App.2011)) (defined interpretation of waiting-period videotape post-Parker/Jansen)
- Town of Mt. Pleasant v. Roberts, 393 S.C. 332, 713 S.E.2d 278 ((2011)) (purpose of 56-5-2953 is direct evidence of DUI arrest; pre-test video implications)