Sunday, April 21, 2019

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Dear Judges:


The Court of Appeals recently issued an opinion in the case State v. Elwell.  Elwell was arrested for DUI and subsequently taken to a breath-testing site, where he refused the breath test.  As a result, the officer turned off the video recorder without recording the twenty minute waiting period.  During a pretrial hearing, the defense moved to dismiss the charge as Elwell’s conduct was not videotaped for the twenty minute waiting period as required by subsection 56-5-2953(A)(2)(d).  The trial court agreed and dismissed the charge.  This appeal by the State followed.  The State argued that the statute does not require that the videotape include the twenty minute waiting period when the suspect refuses the breath test, and that the statute further permits the trial court to excuse the failure to produce the videotape for other “valid reasons,” and the defendant’s refusal constitutes a valid reason.


The Court of Appeals agreed with the State and remanded the case for trial, holding that if the suspect “refuses to take the breath test, dismissal is not warranted for failure to videotape the person’s conduct for twenty minutes so long as the other requirements of subsection 56-5-2953(A)(2) are satisfied.”  In arriving at its holding, the Court of Appeals stated that the “legislature is presumed to intend that its statutes accomplish something . . . [a]s it relates to the waiting period, the statute ensures the attempt to establish the breath test’s reliability need not endure such swearing contests.  If a breath test is administered, the waiting period’s videotaping provides evidence that helps resolve credibility disputes as to the procedure used in administering the breath test.”


You may review this case in its entirety at



Tiffany B. Raines

SCCA Staff Attorney



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