SUMMERVILLE — A minute of missing audio on a police video prompted a judge to throw out state Sen. Randy Scott's politically charged DUI case Thursday.
"I am dismissing the case," Magistrate Phillip Newsome of Columbia said halfway through the second day of the trial. "I don't have a choice. It may be picky. It may be trivial. But that's the law."
Scott maintained that the arrest was set up to hurt his chances for re-election. He faces former state Sen. Mike Rose in the June 10 Republican primary, and the winner faces no Democratic opposition.
Dorchester County sheriff's deputies stopped Scott on April 19 and charged him with driving under the influence. A deputy recorded the arrest, as required by state law.
Scott's lawyers, led by Reese Joye of North Charleston, hammered away at the video during pretrial motions. They implied that it could have been doctored to make Scott look bad.
Newsome said there was more than a minute of audio missing from the video, with no explanation of how it happened. Without an affidavit explaining the gap, Newsome said he could not proceed with the trial.
Seventh Circuit Deputy Solicitor Barry Barnette of Spartanburg, who was prosecuting the case, said he would file a motion to reconsider, which could lead to an appeal. He said he didn't see any missing audio in the video or any other indication that it was altered.
He said Scott was leaning over into his glove compartment for a while.
"I think this case needed to be decided by a jury," Barnette said. "This is a perfect example of the problem with our DUI law. This is frustrating for law enforcement throughout South Carolina."
Dorchester County Sheriff Ray Nash said he was disappointed that his deputies didn't get a chance to prove they did nothing wrong.
"There was absolutely no political motivation," Nash said. "We're sorry to see the system operate like this. I wish there was an opportunity to refute these unfounded statements."
Scott was questioned because he was driving erratically and then failed field-sobriety tests, Sgt. Randy Botten, testified during pretrial motions Thursday. Scott's lawyers disputed both allegations.
Scott was arrested after pulling out of a shopping center about 11 p.m. on a Saturday night. He was checking campaign signs at night because they were being vandalized, Joye told the judge.
After the dismissal, Scott said he was happy to get out campaigning again. He also apologized for profanity he used when he was arrested, which became public when the incident report and a phone call recorded at the jail were publicized. Scott said he was frustrated because he knew he was innocent.
"I knew I wasn't intoxicated that night," said Scott, who the night of the arrest reported having two drinks. "When they finally arrested me, it just made me mad."
According to a five-page incident report, Scott repeatedly argued that politics were at play while deputies conducted field sobriety tests. At the jail, he "berated and at sometimes appeared to be intimidating deputies," it said.
The incident report, written and approved by Botten, said Scott and his vehicle smelled of alcohol.
According to the report, Scott "was very sluggish in his movements and was not clearly audible when talking." Botten also wrote that Scott's eyes were bloodshot and his clothes disheveled.
Scott, who had lost his left leg in a hunting accident many years ago, gripped the vehicle for support, Botten wrote, and did not complete a nine-pace walk.
Joye has said the video reveals "normal walking and standing patterns for an amputee, including leaning against the vehicle for support."
A deputy gave Scott the standard tests to see if there was a good reason to bring him into the station for a Datamaster test, which determines blood-alcohol content with breath, Nash said at the time. Once there, the machine was not able to get a reading because Scott was uncooperative and didn't blow hard enough to get a reading within the allotted two minutes, Nash said.
Joye said at the time the video shows no impaired driving. He said the jail recordings also reveal that Scott did cooperate with the breath test, and actually blew a zero three times.
Rose has said he had nothing to do with the arrest but has made an issue of Scott's profanity in his campaign. He could not be reached for comment after the trial.
Scott asked for a jury trial. A jury was picked Wednesday but was never sworn in.