                    THE STATE OF SOUTH CAROLINA 

                         In The Supreme Court 


            The State, Petitioner,

            v.

            Gregg Gerald Henkel, Respondent.

            Appellate Case No. 2013-001989



       ON WRIT OF CERTIORARI TO THE COURT OF APPEALS



                         Appeal from Greenville County
                    G. Edward Welmaker, Circuit Court Judge


                               Opinion No. 27541 

                     Heard June 22, 2015 – Filed July 1, 2015 



                                     REVERSED


            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: 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 Miranda1 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 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 his patrol vehicle, faced the in-
car camera towards respondent, and read respondent his Miranda rights again.

Respondent sought dismissal of the charge alleging the videotape of his conduct at
the scene failed to comply with the statutory videotaping requirements. Subsection
56–5–2953 (A) requires that an individual have his conduct recorded at the
incident site, and that the recording must include that individual being advised of
his Miranda rights prior to the administration of field sobriety tests.4 Subsection

1
  Miranda v. Arizona, 384 U.S. 436 (1966). 

2
  This switch also activated patrol car's video recording camera. This forward 

facing camera only recorded the highway in front of Sergeant Hiott's vehicle. 

When Sergeant Hiott arrived at the scene, he pulled his patrol vehicle past all of 

the other emergency vehicles.

3
  No balancing tests were administered because respondent indicated he had an 

injured leg.

4
  Subsection (A) states: 


      (A) A person who violates Section 56–5–2930, 56–5–2933, or 56–5–2945
(B) provides several exceptions to this videotaping requirement:

      [I]n circumstances including, but not limited to, road blocks, traffic accident
      investigations, and citizens' arrests, where an arrest has been made and the
      videotaping equipment has not been activated by blue lights, the failure by
      the arresting officer to produce the videotapes required by this section is not
      alone a ground for dismissal. However, as soon as videotaping is practicable
      in these circumstances, videotaping must begin and conform with the
      provisions of this section.

S.C. Code Ann. § 56–5–2953(B) (2006).

The trial court denied respondent's motion to dismiss. The trial court recognized
this incident was not a typical DUI stop because Sergeant Hiott's investigation
began hours after respondent's wreck. Accordingly, the trial court applied
subsection (B), and found Sergeant Hiott activated the video and audio recording
as soon as practicable.5 The trial court found the videotape complied with the
requirements of subsection (A) because it captured audio of the HGN and ABC
tests.


      must have his conduct at the incident site and the breath test site videotaped.

             (1) The videotaping at the incident site must:

                   (a) begin not later than the activation of the officer's blue lights
                   and conclude after the arrest of the person for a violation of
                   Section 56–5–2930, 56–5–2933, or a probable cause
                   determination that the person violated Section 56–5–2945; and

                   (b) include the person being advised of his Miranda rights
                   before any field sobriety tests are administered, if the tests are
                   administered.

We note that § 56–5–2953 was amended effective February 10, 2009. See Act No. 

201, 2008 S.C. Acts 1682-85. While subsection (A) was amended, the language of 

subsection (B) was essentially unchanged. Respondent's arrest occurred on 

January 19, 2008, so the amended statute is not applicable. 

5
  The trial court's factual finding that videotaping began as soon as practicable is 

not challenged on appeal. 

The Court of Appeals reversed. The majority first looked to subsection (B)
because the videotaping equipment was not activated by Sergeant Hiott's blue
lights and Sergeant Hiott was conducting a traffic accident investigation. The
majority applied the language of subsection (B) which provides two qualifying
provisions: "[h]owever, as soon as videotaping is practicable in these
circumstances, videotaping must begin and conform with the provisions of this
section." S.C. Code Ann. § 56–5–2953(B). The majority found the language
which requires "videotaping must begin and conform with the provisions of this
section," necessitates compliance with subsection (A). That is, the majority held
that once videotaping begins, it must include all the requirements of subsection
(A). Subsection (A)(1)(b) requires the videotaping "include the person being
advised of his Miranda rights before any field sobriety tests are administered."
Here, the first Miranda warning was not captured by audio or video. Accordingly,
the majority found dismissal of the charge was required because the videotape did
not capture respondent being advised of his Miranda rights before the audio
recording of the HGN and ABC tests.6

Judge Geathers dissented and reasoned that to require strict compliance with
subsection (A)(1)(b) would effectively eviscerate the exception in subsection (B).
Judge Geathers observed an officer is required to begin recording as soon as
practicable, and the "begin and conform" provision in subsection (B) was intended
to require compliance with subsection (A), from that point forward. Judge
Geathers stated "the initiation of the videotaping and conformance must each begin
as soon as is practicable," and here, it was not practicable to capture video
evidence of respondent receiving his initial Miranda warnings or performing the
HGN and ABC tests. Accordingly, Judge Geathers would have affirmed
respondent's conviction and sentence.

                                       ISSUE

      Did the videotape of respondent's conduct made at the scene of his traffic
      accident investigation comply with the videotaping requirements of S.C.
      Code Ann. § 56–5–2953, as it existed in January 2008?




6
 This same issue will not arise under the amended version of the statute because
while it requires both the field sobriety tests and the Miranda rights be recorded, it
does not require Miranda rights be given before the field sobriety tests.
                                    ANALYSIS 


The State contends the Court of Appeals misapplied the exception in subsection
(B) because the phrase "as soon as videotaping is practicable" applies to both when
the videotaping must "begin" and what it must show in order to "conform" to the
requirements of subsection (A). The State argues the effect of the Court of
Appeals' opinion requires, in situations such as this, the arresting officer to perform
Miranda warnings and field sobriety tests anew, in order to capture them on
videotape, if they were first performed prior to the moment where videotaping
became practicable. We find the language of the exception in subsection (B)
ambiguous, and construe the exception to require compliance with subsection (A)
need only begin at the time videotaping becomes practicable, and continue until the
arrest is complete.

"The primary rule of statutory construction is to ascertain and give effect to the
intent of the legislature." Bryant v. State, 384 S.C. 525, 529, 683 S.E.2d 280, 282
(2009). However, "[a]ll rules of statutory construction are subservient to the one
that the legislative intent must prevail if it can be reasonably discovered in the
language used, and that language must be construed in light of the intended
purpose of the statute." State v. Sweat, 386 S.C. 339, 350, 688 S.E.2d 569, 575
(2010).

If the statute is ambiguous, courts must construe the terms of the statute. Lester v.
S.C. Workers' Comp. Comm'n, 334 S.C. 557, 561, 514 S.E.2d 751, 752 (1999). "A
statute as a whole must receive practical, reasonable, and fair interpretation
consonant with the purpose, design, and policy of lawmakers." Sloan v. S.C. Bd. of
Physical Therapy Exam'rs, 370 S.C. 452, 468, 636 S.E.2d 598, 606-07 (2006). We
have strictly construed § 56–5–2953. Town of Mt. Pleasant v. Roberts, 393 S.C.
332, 346, 713 S.E.2d 278, 285 (2011).

We find the language of the exception in subsection (B) ambiguous and construe
the exception to require compliance with subsection (A) when it becomes
practicable to begin videotaping. Accordingly, we find Court of Appeals' majority
erred, for two reasons, in finding once videotaping begins pursuant to an exception
in subsection (B), that full compliance with subsection (A) is necessary. First, the
majority opinion violates the legislative intent of the statute. Subsection (A) was
intended to capture the interactions and field sobriety testing between the subject
and the officer in a typical DUI traffic stop where there are no other witnesses.
Roberts, 393 S.C. at 347, 713 S.E.2d at 285 (finding the purpose of § 56–5–2953 is
to create direct evidence of a DUI arrest). During a traffic stop, the subject, his
vehicle, and his interaction with the officer can be videotaped by the car-mounted
camera that is initiated by the officer's blue lights. Requiring an officer to repeat
Miranda and field sobriety tests on camera in a situation contemplated in
subsection (B) is not consistent with the legislative intent of the DUI recording
statute.

Here, the legislative concerns with videotaping one-on-one traffic stops to capture
the interactions between an officer and the subject are not present. See Sweat, 386
S.C. at 350, 688 S.E.2d at 575 (holding "language must be construed in light of the
intended purpose of the statute."). Numerous officers and emergency personnel
observed respondent's conduct at the scene. Officer Hamilton testified he was the
first responder that located respondent walking down I-385. Officer Hamilton
testified respondent was unsteady on his feet, he was confused, and he was talking
with a slurred voice. Officer Terry testified he also responded to the call reporting
that respondent was walking down I-385 and he believed respondent was definitely
intoxicated. He explained respondent was slurring his speech, his posture was
slumped over, and he smelled like alcohol.

Second, the majority opinion fails to consider the statute as a whole. Mid-State
Auto Auction of Lexington, Inc. v. Altman, 324 S.C. 65, 69, 476 S.E.2d 690, 692
(1996) ("In ascertaining the intent of the legislature, a court should not focus on
any single section or provision but should consider the language of the statute as a
whole."). In effect, the majority opinion would render the exceptions for road
blocks, traffic accident investigations, and citizens' arrests meaningless, if during
an encounter it becomes practicable to begin videotaping. The majority requires an
arresting officer to repeat Miranda warnings and field sobriety tests if it becomes
practicable to begin videotaping; especially when, as occurred here, Miranda and a
portion of a field sobriety test were conducted prior to the moment when
videotaping became practicable. We hold the phrase "as soon as videotaping is
practicable in these circumstances," applies to both when videotaping must "begin"
and when videotaping must "conform to the provisions of this section."

Accordingly, we hold when an individual's conduct is videotaped during a situation
provided for in subsection (B), compliance with subsection (A) must begin at the
time videotaping becomes practicable and continue until the arrest is complete.
Subsection (A) of the statute as it existed at the time of respondent's arrest only
required respondent's conduct be videotaped and Miranda warnings be given prior
to field sobriety tests. We find the audio recording of respondent's field sobriety
tests adequately captured his conduct at the scene of the traffic accident
investigation. Additionally, because respondent was given Miranda warnings prior
to the time videotaping became practicable, we hold the videotape complies with
subsection (A) because the videotape need only begin complying with subsection
(A) from the time videotaping became practicable. See footnote 5, supra.

We reverse the Court of Appeals and reinstate respondent's conviction because the
videotape satisfied the requirements of § 56–5–2953 once videotaping became
practicable.7

                                 CONCLUSION

For the reasons given above, the opinion of the Court of Appeals is

REVERSED.

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




7
 Because we find the videotape complied with § 56–5–2953, we need not address
whether the totality of the circumstances exception in subsection (B) applies.
