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State v. Henkel

Supreme Court of South Carolina

July 1, 2015

The State, Petitioner,
v.
Gregg Gerald Henkel, Respondent

Heard June 22, 2015.

Appeal from Greenville County. G. Edward Welmaker, Circuit Court Judge. Appellate Case No. 2013-001989.

Attorney General Alan McCrory Wilson and Assistant Attorney General William M. Blitch, Jr., both of Columbia, for Petitioner.

C. Rauch Wise, of Greenwood, for Respondent.

JUSTICE PLEICONES. TOAL, C.J., BEATTY, KITTREDGE and HEARN, JJ., concur.

OPINION

Page 459

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

PLEICONES, JUSTICE:

We granted the State's petition for a writ of certiorari to review the Court of Appeals' opinion that found the trial court should have dismissed respondent's DUI charge because the videotape did not comply with the statutory requirements for videotaping respondent's conduct at the scene of his DUI arrest. State v. Henkel, 404 S.C. 626, 746 S.E.2d 347 (Ct.App. 2013); S.C. Code Ann. § 56-5-2953 (2006). We reverse.

FACTS

A witness observed a vehicle being driven erratically on I-385 and ultimately wrecking. Sergeant Hiott responded to the wreck and organized a search after learning from a witness that the driver had fled the scene. Officers were unable to locate the driver and cleared the scene.

Several hours later, Sergeant Hiott responded to a call indicating an individual had been found walking down I-385. When Sergeant Hiott arrived, he found respondent receiving medical care in an ambulance. Sergeant Hiott read respondent his Miranda [1] rights and conducted a horizontal gaze nystagmus (HGN) test while respondent was in the ambulance. Sergeant Hiott initiated his audio recording device by a switch on his belt during the HGN test.[2] After the HGN test, Sergeant Hiott learned

Page 460

respondent was not going to the hospital, so he led respondent from the ambulance to the side of his vehicle and asked him to recite the alphabet. Respondent failed both the HGN and ABC tests.[3] The ABC test and Sergeant Hiott's admonitions while administering the HGN test were captured by audio recording. Neither test was captured by video recording. Sergeant Hiott arrested respondent for DUI, placed respondent in ...


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