March 12, 2019
From Newberry County Donald B. Hocker, Circuit Court Judge
Attorney General Alan McCrory Wilson and Senior Assistant
Deputy Attorney General William M. Blitch, Jr., both of
Columbia, and Solicitor David Matthew Stumbo, of Greenwood,
Michael Vincent Laubshire and Richard James Dolce, both of
the Laubshire Law Firm, LLC, of Columbia, for Respondent.
State appeals the dismissal of a driving under the influence
(DUI) charge arguing the trial court misinterpreted sections
56-5-2953(A) and (B) of the South Carolina Code (2018). We
reverse the dismissal of the DUI charge against Tony Latrell
Kinard and remand the case for trial.
November 3, 2015, at approximately 6:30 in the evening, Tony
Latrell Kinard was involved in a two-car accident in Newberry
County. Newberry County Deputy Jesse Snelgrove, whose vehicle
was not equipped with a video camera, responded to the scene
after the arrival of fire and EMS personnel. Deputy Snelgrove
testified that when he arrived at the scene, he observed
Kinard yelling at the EMS personnel and at a female he later
found out was Kinard's girlfriend. Deputy Snelgrove
testified he attempted to calm Kinard. Kinard responded by
yelling and cursing at him and staring at him with his fist
balled up. Deputy Snelgrove, citing concern about being
assaulted, handcuffed Kinard, placed him under arrest for
disorderly conduct, and put Kinard in his car. Shortly
afterward, Trooper Mickey Barnett with the Highway Patrol
arrived at the scene. Prior to his arrival, Trooper Barnett
activated his in-car video camera. He parked his patrol car
directly behind Deputy Snelgrove's car, which had its
blue lights on. Deputy Snelgrove informed Trooper Barnett
that Kinard's girlfriend removed bottles of alcohol from
Kinard's car. Trooper Barnett testified he observed
Kinard in the backseat of Deputy Snelgrove's car staring
straight ahead and Kinard refused to speak to him. Trooper
Barnett placed Kinard under arrest for driving under the
influence, citing his demeanor and the fact he "smelled
of alcohol." Trooper Barnett's video camera recorded
the scene. From the video, Trooper Barnett can be heard
Mirandizing Kinard, but because Kinard is inside of Deputy
Snelgrove's car and he does not verbally respond to
Trooper Barnett, Kinard is neither seen nor heard on the
trial was set to begin on June 8, 2016, in Newberry County.
Just prior to trial, Kinard made a motion to dismiss the DUI
charge arguing the video failed to meet the requirements of
section 56-5-2953 of the South Carolina Code (2018). The
trial court heard the testimony of Deputy Snelgrove and
Trooper Barnett, viewed the video of Kinard's arrest, and
heard arguments from both Kinard and the State. The trial
court granted Kinard's motion on the record and prepared
a written order to that effect dated July 25, 2016. The State
filed a motion to reconsider on June 9, 2016. The trial court
held a hearing on the State's motion to reconsider on
July 25, 2016, and in an order issued the same day, the trial
court denied the State's motion. This appeal followed.
criminal cases, the appellate court sits to review errors of
law only and is bound by the trial court's factual
findings unless they are clearly erroneous. Thus, on review,
the appellate court is limited to determining whether the
trial judge abused his discretion." State v.
Garris, 394 S.C. 336, 344, 714 S.E.2d 888, 893 (Ct. App.
2011) (citations omitted). "An abuse of discretion
occurs when the court's decision is unsupported by the
evidence or controlled by an error of law." Id.
State first argues the trial court erred in dismissing the
DUI charge due to its misinterpretation of section
56-5-2953(A) of the South ...