I Am Always Happy to Answer DUI and Criminal Law Questions for the Media.
As a lawyer handling DUI and Criminal Defense Cases in South Carolina for over thirty years, I had a treat today when Channel 5 WCSC reporter Harv Jacobs came to my office to interview me. Harv sought my opinion on the recent success my friend and colleague since days of Dreher High School, Joe McCulloch, recently secured for his DUI client in the Columbia Municipal Court.
This story broke yesterday and was reported in the Post and Courier in Charleston, and the State newspaper in Columbia.
As those stories revealed, Joe convinced Judge Steedley Bogan that the breath test evidence should excluded in a DUI trial where the state failed to follow proper procedures when administering the test. In South Carolina, a breath test result is not admissible at trial until the prosecution establishes that proper and required procedures were followed. This has been the law for years.
In Joe’s case, the officer who administered the breath test told the person to “blow harder” when the person was offering a breath sample. Such advice is in direct contradiction to the procedural instructions published by the manufacturer of the breath machine, and in fact, to the instructions given machine operators when being trained by the SC Criminal Justice Academy.
As I frequently remark, these requirements are not a “loophole” but rather the law of this state. These requirements ensure that all persons accused of a crime are treated the same, and ensure that only competent, reliable and trustworthy evidence be admitted in court. This is what our constitution requires, is fair and what any of us would demand if faced with the accusation of committing a crime.
In this instance, Joe presented the court with evidence that despite the breath machine manufacturer’s operational instruction that a person being tested should NOT be told to blow into the machine mouthpiece “hard or harder,” that was exactly what the officer in Joe’s client’s case did. While the prosecution suggested to the court that this requirement did not matter, it was unable to present evidence to support that suggestion and to convince the court.
Thank goodness our law requires that the breath testing procedure be video recorded.
Please be sure to watch Channel Five WSCS at 6 pm tonight. The story is here http://www.live5news.com/story/21643856/dui-case-tossed-after-suspect-told-to-blow-hard-during-breath-test
Live5News.com | Charleston, SC | News, Weather, Sports
I have known Harv for years and it is always nice to see him. He has covered many of the trials I have handled that were of interest to the public.
Kulp & Elliott accepts cases in Charleston, North Charleston, Mt. Pleasant, Summerville, Goose Creek, Hanahan, Moncks Corner, Ladson, James Island, West Ashley, Folly Beach, Sullivans Island, Isle of Palms, Awendaw, McClellanville South Carolina.
