State v. McAllister

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Patrick Gillis McAllister, Appellant.

Appellate Case No. 2013-002169

Appeal From York County
J. Derham Cole, Circuit Court Judge

Unpublished Opinion No. 2015-UP-137
Submitted February 1, 2015 – Filed March 11, 2015

AFFIRMED

James W. Boyd, of Law Offices of James W. Boyd, of
Rock Hill; and Kevin Michael Hope, of Florence, for
Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General Mary Shannon Williams, both of
Columbia; and Solicitor Kevin Scott Brackett, of York,
for Respondent.
PER CURIAM: Patrick McAllister appeals his conviction for driving under the
influence (DUI), second offense, arguing the trial court erred in denying his motion
to dismiss when (1) the arresting officer did not comply with the mandatory video
recording provisions of section 56-5-2953(A) of the South Carolina Code (Supp.
2014) and filed an insufficient affidavit of noncompliance under section 56-5-
2953(B) of the South Carolina Code (Supp. 2014) and (2) it improperly admitted
the arresting officer's affidavit when an incident site video existed. We affirm
pursuant to Rule 220(b), SCACR, and the following authorities:

As to Issue 1: State v. Hercheck, 403 S.C. 597, 601, 743 S.E.2d 798, 800 (2013)
("In criminal cases, the appellate court sits to review errors of law only. Therefore,
[an appellate court] is bound by the trial court's factual findings unless the
appellant can demonstrate that the trial court's conclusions either lack evidentiary
support or are controlled by an error of law." (citation omitted)); § 56-5-2953(A)
(providing a person who commits a DUI offense "must have his conduct at the
incident site . . . video recorded"); § 56-5-2953(A)(1)(a) ("The video recording at
the incident site must: (i) not begin later than the activation of the officer's blue
lights; (ii) include any field sobriety tests administered; and (iii) include the arrest
of a person for a violation of [s]ection 56-5-2930 [of the South Carolina Code
(Supp. 2014)] or [s]ection 56-5-2933 [of the South Carolina Code (Supp.
2014), . . . and show the person being advised of his Miranda rights."); § 56-5-
2953(B) ("In circumstances . . . where an arrest has been made and the video
recording equipment has not been activated by blue lights, the failure by the
arresting officer to produce the video recordings required by this section is not
alone a ground for dismissal. However, as soon as video recording is practicable
in these circumstances, video recording must begin and conform with the
provisions of this section."); Town of Mt. Pleasant v. Roberts, 393 S.C. 332, 347,
713 S.E.2d 278, 285 (2011) (explaining the purpose of the video requirement in
section 56-5-2953 of the South Carolina Code (Supp. 2014) "is to create direct
evidence of a DUI arrest"); Murphy v. State, 392 S.C. 626, 631, 709 S.E.2d 685,
688 (Ct. App. 2011) (interpreting a prior version of section 56-5-2953 that also
required an accused to have his conduct at the incident site recorded and explaining
the "accused need not remain in full view of the camera at all times in order for the
recording to capture [his] conduct"); State v. Taylor, Op. No. 5285 (S.C. Ct. App.
filed Dec. 23, 2014) (Shearhouse Adv. Sh. No. 51 at 54-55) ("[S]ection 56-5-2953
does not require dismissal of a DUI charge when the video recording of the
incident briefly omits the suspect but that omission does not occur during any of
those events that either create direct evidence of a DUI or serve important rights of
the defendant."); § 56-5-2953(B) ("Failure by the arresting officer to produce the
video recording required by this section is not alone a ground for dismissal . . . if
the arresting officer . . . submits a sworn affidavit certifying that it was physically
impossible to produce the video recording because the person needed emergency
medical treatment, or exigent circumstances existed." (emphasis added)).

As to Issue 2: State v. Elwell, 403 S.C. 606, 612, 743 S.E.2d 802, 806 (2013) ("[I]f
a statute's language is plain, unambiguous, and conveys a clear meaning[,] the rules
of statutory interpretation are not needed and the court has no right to impose
another meaning." (internal quotation marks omitted)); § 56-5-2953(B) ("Failure
by the arresting officer to produce the video recording required by this section is
not alone a ground for dismissal . . . if the arresting officer . . . submits a sworn
affidavit certifying that it was physically impossible to produce the video recording
because the person needed emergency medical treatment . . . ." (emphasis added));
id. ("In circumstances . . . where an arrest has been made and the video recording
equipment has not been activated by blue lights, the failure by the arresting officer
to produce the video recordings required by this section is not alone a ground for
dismissal." (emphasis added)).

AFFIRMED.1

THOMAS, KONDUROS, and GEATHERS, JJ., concur.

1
We decide this case without oral argument pursuant to Rule 215, SCACR.