Click on the links below to view recent new articles involving The Phipps Firm.

North Charleston police officer appealing firing over Confederate boxer shorts, The Post and Courier, July 2015

The former North Charleston police officer who was fired after a Facebook photo of him wearing Confederate flag boxer shorts was circulated is appealing.

Shannon Dildine has asked for a hearing, Christine Ruth, the city of North Charleston’s human resources director, said Friday. A date has not been set, she said.

Dildine was told in a June 24 letter that he was fired for posting a photo of him posing in the shorts. Nobody has said when Dildine posted the photo. Somebody copied it from his Facebook page and circulated it during a backlash against the Confederate flag following the June 17 shooting at Emanuel AME Church in Charleston. The man accused of the shooting, Dylann Roof, had posed for photos with a Confedrate flag on his Facebook page before the rampage at the church.

Police Chief Eddie Driggers noted in the termination letter that the flag “symbolizes hate and oppression to a significant portion of the citizens we are sworn to serve.” Driggers said Dildine could not have continued as an officer because any arrest of a minority could be challenged on the basis of possible racial bias.

Dildine’s attorney, Edward Phipps of Mount Pleasant, sent Driggers a letter requesting an appeal June 26, two days after Dildine was told he was fired. The city released it Friday under the state’s Freedom of Information Act.

The letter says Driggers is requesting an appeal because Dildine was “terminated without cause and without any policy violations.”

“It is my understanding that Mr. Dildine has an excellent record and has been an outstanding officer,” Phipps said in the letter.

A check with the police department’s office of internal affairs – also a Freedom of Information request – shows that three complaints were filed against Dildine over his nearly 20 years of service, none of them concerning racial issues. Two of the complaints involved traffic incidents and the other a lost wallet.

In February 2007, Dildine lost his police wallet with ID badge, proximity badge and insurance cards. He was exonerated of that complaint, according to the report.

In May 2012, Dildine was backing out of his driveway and hit a tree, damaging a patrol car. The vehicle operations violation complaint was sustained.

In February 2014, Dildine drove over spikes intended to stop a suspect running from police and blew out two tires on Otranto Road. Dildine “did not demonstrate exemplary driving behavior nor did he exercise due regard,” according to the report.

© Dave Munday, The Post and Courier, July 10, 2015

Founders mark 15th year after law school’s first class, Financial News and Daily Record, October 2014

Howard Royce says that when he dug deep into his pocket in 1996 and enrolled at his hometown’s new law school, he was taking a huge risk.

Fueling the intensity for Royce and his classmates was Florida Coast School of Law’s accreditation status remaining in limbo until months after the Jacksonville school’s first class graduated in spring 1999.

Ultimately, the gamble paid off. Florida Coastal’s founders and faculty kept their end of the bargain, says Royce, a Jacksonville attorney who specializes in product liability, technical law and personal injury.

“FCSL definitely delivered the product to the charter class of 61 students…” Royce said. “We took the risk of attending (founding school dean) Don Lively’s vision, which was a law school with a new set of metrics that were focused on preparing the students to practice law, (and) definitely, FCSL presented law as the third branch of government.”

Royce was among Florida Coastal’s alumni to attend Founder’s Day activities Saturday through Monday, including a recognition brunch headlined by former two-term Detroit mayor Dennis Archer.

Charter board and faculty members were on hand for the celebration. The school’s original board of directors was Lively, Richard Danforth, Greg Manocherian, Irv Sonnenchein, Bernard Turner, Rita Turner, Ron Stahnke, Ron Bailey and Richard Matasar.

“Collectively, you all are visionaries. I compliment you on your investment and thank you for your vision and leadership – and I think the future for Florida Coastal School of Law is tremendously bright,” said Archer, who chairs the National Policy Board for the InfiLaw System, a consortium of independent law schools that includes Florida Coastal.

The school’s charter class member Jim Farah, a Jacksonville attorney, said on Monday the school has established a niche for helping students learn to practice law.

“I’m very proud of what the school has done and where it’s headed,” said Farah, an adjunct professor for Florida Coastal. “The school remains very student-centered and focused on turning out attorneys that can understand and meet the needs of clients today, especially the needy.”

Also a school foundation board member, Farah says Florida Coastal’s forte may be its in-house clinics, which enable students to represent indigent clients who are referred from various agencies. Under the supervision of faculty, the students staff the school’s family law, immigration rights, criminal defense, disability and benefits, and business and entrepreneurial law clinics.

“Successful law schools are not all about producing high-powered attorneys or in-house counsel,” Farah said. “Those things are all nice, but it’s about having the skill set that you need, and the foundation of those skills are learned through the clinics that are offered (at Florida Coastal).”

Recent clinic success stories were highlighted in a video at the Founder’s Day Recognition Brunch, which was followed by a symposium titled “Innovation in Legal Education and Practice.”

Danforth, the Jacksonville Urban League chief executive officer, said Monday he’s particularly impressed with the school’s adaptation to technological advances and job preparation, along with its Moot Court team’s No. 1 national ranking.

“I think the best word is ‘responsive’ and I think their success in Moot Court is a huge achievement,” he said. “That is a skill and it says something about the preparation and training at the school.”

Florida Coastal, which targets students from diverse socioeconomic backgrounds, has a fall 2014 enrollment of 1,211. The National Jurist, a legal education magazine, lauded the school in 2013 for being innovative and in 2014 for its practical training opportunities. However, the magazine’s most recent grades for Florida Coastal are “D” for affordability and post-education employment, and “C” for bar exam pass rate.

The school was critizied in The Atlantic magazine for accepting students who have little chance of passing The Florida Bar exam or finding a job.

Those students, the article said, were left heavily in debt with no way to pay for it.

“The more successful we are, it seems the more feverish the criticism is,” said Interim Dean Chidi Ogene.

In an interview Monday, Ogene said that among other initiatives, Florida Coastal has a task force focused on improving Bar exam pass rates. Also, some students are being admonished to make law school more affordable by downscaling their lifestyle, he said.

Royce said he thinks the affordability of law school’s impetus is ultimately rests on students’ shoulders.

“As for the current FCSL law students, each must make a hardline business decision and conduct a cost-benefit analysis of paying for the education, including taking on student loans, versus their individual prospects for gainful employment,” he said.

© Kevin Hogencamp, Financial News and Daily Record, October 2014

State’s DUI laws can make convictions difficult, The Post and Courier, July 2014

South Carolina has one of the worst records for DUI deaths, but it’s not always easy to convict drunk drivers in court.

The issue resurfaced recently when Charleston Police Chief Greg Mullen said the difficulty of getting a DUI conviction in South Carolina was one of the reasons an officer charged an apparently intoxicated woman sitting behind the wheel of car outside a downtown hotel with disorderly conduct instead of drunk driving.

Former CARTA Director Christine Wilkinson was charged with disorderly conduct instead of DUI because a video camera wasn’t immediately available and the officer didn’t see her driving, even though the officer said she smelled of alcohol, was slurring her speech and her eyes were bloodshot, Mullen said.

“Certainly there were witnesses there, but based on our history, knowing the difficulty we have with DUIs, since he didn’t have a camera or immediate access to one, and he didn’t see her driving, after talking with his supervisor, he felt the best resolution was to go ahead and charge her with the disorderly conduct to resolve the immediate situation,” Mullen said.

A DUI arrest is complicated and takes an officer off the street for several hours, not including the time the officer has to spend in court.

State law requires that DUI field tests, arrests and breath tests at the station be videotaped. South Carolina does not allow portable breath testing.

The video recording of a DUI arrest is so crucial to a conviction that a flaw in the recording can get the whole case thrown out of court. That’s what happened after then-state Sen. Randy Scott of Summerville was arrested and charged with DUI in 2008. The judge dismissed the case when defense attorney pointed out a gap in the audio on the recording.

Cases get thrown out all the time after lawyers attack the video, according to Steve Burritt, spokesman for the state chapter of Mother’s Against Drunk Diving.

“It’s one of the most common issues I hear about,” Burritt said. “Compared to every state, we have a much higher burden of video recording.”

He cited several recent examples. A case was thrown out when a driver performing a heel-to-toe walk took too many steps and went off the video. Another case was dismissed after the defense argued that the video was too dark to see the driver’s eyes.

MADD tried last year to get an amendment passed that would specify that a video recording does not have to be 100 percent perfect to be admissible. The bill to which the amendment was attached didn’t pass.

“The expectation that you have to have a perfect recording means too many people are getting off, in a state that is absolutely one of the worst in the nation for drunk driving,” Burritt said.

The ranking is based on comparing the number of deaths with miles traveled. In 2012, South Carolina had 0.73 DUI fatalities for every million miles traveled, according to the National Highway Traffic Safety Administration. That’s more than twice the national average of 0.35.

DUI lawyers use the videotape requirements to their advantage.

“That’s one of the first things we look for is defects in the video,” Mount Pleasant attorney Edward Phipps said.

He got a case tossed out because the person’s legs weren’t visible on the video during the heel-to-toe test.

He mentioned a few other cases that are held up as precedents. In 2011, the S.C. Supreme Court dismissed a DUI conviction because the officer’s tape in his camera ran out. The case was City of Rock Hill v. Suchenski.

In 2007, the state’s high court dismissed a DUI case after Mouth Pleasant police said they didn’t record the arrest because the car didn’t have a video camera. The court said the town should buy more cameras. The case was Town of Mount Pleasant v. Robert.

Phipps is a former Mount Pleasant police officer. He says he’s still on the cop’s side and is making sure the system is working like it should.

“I do have friends who say,’You’re like Darth Vader. You went to the Dark Side,’” he said. “When I was a police officer, I dotted my I’s and crossed my T’s. Now I’m making sure officers dot their I’s and cross their T’s. My blood runs blue. I’m a check and balance.”

Ironically, several websites list South Carolina as one of the toughest states when it comes to penalties for a DUI conviction. A first offense can cost you $400 fine plus court costs, you could get your license suspended for three months, and you will be required to complete a safety program to get your license back.

The state recently passed a law, known as Emma’s law, that requires anybody convicted of DUI – even a first offender – with a blood alcohol level greater than 0.15 to install an ignition lock in the car for six months. The driver has to blow in it before the car will start. The car will only start if the device doesn’t measure a significant amount of alcohol.

But the way the state’s DUI laws are written makes it more difficult in South Carolina than in many other states to convict an intoxicated person sitting in a parked car.

While many states’ DUI laws talk about “operating a motor vehicle,” S.C. law specifies “driving a motor vehicle.” The language would have made it hard to convict Wilkinson of DUI, attorney Tim Kulp said.

“It’s easy to make an arrest,” he said. “It’s harder to get a conviction.”

Kulp is a former city prosecutor and FBI agent. He has a great distrust for the machines that measure blood alcohol. He will point out defects in the video and then undermine the jury’s confidence in the DataMaster that measures alcohol in the breath.

“It’s a crime of a unique grayness,” he said of a DUI charge.

An officer can arrest a person for DUI on probable cause, but a jury must be convinced beyond a reasonable doubt to find the person guilty, he points out.

Wilkinson asked the officer who arrested her to let her off the hook because she worked for the city, according to the incident report. But she made that request after the officer already told her she was being charged with disorderly conduct. He made the decision to charge her with disorderly conduct after telling his supervisor he didn’t see her driving, according to the report. She resigned after the arrest became public.

Mullen said there is no indication Wilkinson got special treatment.

“I don’t think arresting anybody for disorderly conduct and public intoxication and taking them to jail is any preferential treatment in any way, shape, or form,” Mullen said.

© Dave Munday, The Post and Courier, July 2014

Lightning strike delays DUI cases across the state, Moultrie News, August 2013

The South Carolina State Law Enforcement Division is hard at working trying to recover 22 years worth of evidence from a computer server that went down recently.

All drunk driving cases have been postponed as officals work to retrieve the database of suspects’ Breathalyzer tests that has not been accessible since July 5.

For Mount Pleasant, which leads the state in DUI arrests, this snafu has had little effect on municipal cases.

Mount Pleasant DUI attorney Edward Phipps told the Moultrie News, “In reality it hasn’t affected my clients. It is a process to collect that information and it takes three to four months to collect and prepare for a DUI case. So I get my court date pushed back until it is all gathered.”

Phipps said if he does not have everything he needs to go to hearing he asks for a continuance. Phipps added that if, by chance, any of the needed information is lost or destroyed, the case will likely get dismissed.

He explained that the database contains exculpatory evidence that could prove someone innocent and by the rules of law requires that it be provided. “If it is destroyed, then it is their fault,” he said.

Phipps is also a former traffic officer for the Town of Mount Pleasant Police Department (1993-1999), where he specialized in Driving Under the Influence (DUI) enforcement and traffic fatality accident reconstruction.

He works closely with the town’s prosecutor Ira Grossman, with whom he was once colleagues.

“Ira is a very efficient prosecutor. I generally jury trial all my cases so as not to inconvenience the officer who would otherwise have to go to what is called the first appearance. I let them know way in advance that my client or my case is going to jury trial. It benefits Ira, me and the judicial efficiency of the court,” said Phipps.

He also said that the bigger picture is one to be concerned about.

“In light of the infiltration into our Deparment of Revenue, this kind of gives us the tone of where the government is in relations to their IT department. They are just extremely behind,” said Phipps.

“This glitch in the system, coming on the heels of the Revenue Department breech is interesting in that they don’t have more of a catastropic plan in place that would have this back up and running in less time.”

Phipps said like all DUI attorneys, he uses the data regularly as it contains data master results from all machines in the state.

“I could run a report for all results from Mount Pleasant records in any time batch (such as the last four months) to determine if there perhaps is anything wrong with a particular machine such as one in particular reading series of high rates,” he said.

Brian Burke of Bluestien, Johnson and Burke, also an East Cooper attorney in private practice since 2003 said, “Fortunately the courts look after prejudice of a defendant has verses the alternative of the court looking after the prosecutor and the state and saying ‘there is nothing we can do.’ At this point we’ve just put off all trials because the state can’t move forward and prosecute if they can’t recover the information. Because it will result in dismissal,” Burke explained.

It is the state’s responsibility to safe guard all evidence whether it is electronic or written.

Burke, also a former Mount Pleasant Police Officer from 1996 to 1999, said he did not believe there has been any prejudice toward the defendants at this point because ultimately it will result in a dismissal if data is not available.

He said it would be interesting to see how quickly prosecutors move once the database is up and available again. He believes the prosecutors will allow for the due rights process to prevail.

Specifically because Burke had a case scheduled for the week of July 29 and was informed by the prosecutor of the delay before the notice came out from SLED. That particular prosecutor informed him that everyone would be kept posted and that everything was simply on stand-by.

At this time neither prosecutors nor defense attorneys can access test results and videos that date to 1991.

Officals suspect lightning hit a transformer, causing an electronic device in SLED’s generator system, called a rectifier, to fail and the power supply to become unstable. The entire system was taken down for repair. Other SLED servers were back online after a couple of hours, Thom Berry, SLED spokesperson said in a statement.

He insisted none of the data has been lost.

State law requires the filming of Breathalyzer test. Normally, the readings and video from law enforcement agencies across the state are transferred to SLED’s servers, generally overnight, allowing prosecutors and defense attorneys to access them through a secure website. While it’s down, the data is being stored on agencies’ individual machines, Berry said.

Mount Pleasant Police Department spokesman Major Stan Gragg said, “for the Mount Pleasant Police Department, it is business as usual.”

In addition, Grossman said that “As long as the files come back in the beginning of August it shouldn’t create much of a delay at all, in any of our cases.”

© Sully Witte, Moultrie News, August 2013