She did not return to the scene, and she wasn’t charged for leaving it.
Under S.C. law, Bluffton Police said, she shouldn’t have been.
Section 56-5-1210 of S.C. law states a driver involved in an accident that results in injury or death may “temporarily leave the scene to report the accident to the proper authorities.”
The portion that allows drivers to temporarily leave the scene was added on June 2, 2004, by District 40 state Sen. Brad Hutto, who lives in Orangeburg.
Hutto said Thursday he doesn’t recall much debate about the amendment added more than a decade ago, but he said it was designed for drivers who don’t have a phone to contact authorities.
The key word is “temporarily,” he said.
“What definition of ‘temporarily’ are they coming up with?” Hutto said of the Bluffton incident. “If we meant you can just leave forever, we wouldn’t have put the word ‘temporary’ in there.”
J.D. Maines, a criminal defense attorney for The Nye Law Group, which practices in Georgia, North Carolina and South Carolina, said the law hasn’t “changed with the times,” considering most people have cellphones today.
The driver who struck and killed Charmaine Warthern on Buckwalter Parkway Tuesday night did not return to the scene, Bluffton Police spokesperson Joy Nelson said Wednesday.
The driver was interviewed at her home by investigators, according to the police report.
Kenneth Gaines, an associate professor of law and director of clinical legal education at the University of South Carolina, said his interpretation of the law is that one may leave the scene only if they don’t have a way to call authorities. But they then must return to the scene, he said.
Gaines said among the questions to be considered are:
▪ Does the person have a working phone?
▪ How long did it take the driver to report the incident?
▪ Is there a good reason if the driver doesn’t subsequently return to the scene?
Gaines said the law might “give a defendant an out,” because, for example, they could have been drinking and driving, get in an accident and then drive home and claim to have only taken a drink once they were home.
There is no indication that the driver in the Bluffton crash was under the influence.
Gaines said a trickier question arises if police tell a person who left the scene of an accident that he or she doesn’t have to return, despite the law saying they do. That would be a matter likely needing to be resolved by a jury, Gaines said.
It’s unclear if Bluffton police told the driver not to return.
Susan Kuo, a professor of law and the associate dean of diversity and inclusion at the University of South Carolina, said “the provision doesn’t leave much, if any, leeway for a driver to drive home and stay home — provided that law enforcement doesn’t advise the driver to stay home.”
North Carolina has a similar law, which says a driver can’t remove the vehicle involved in a crash from the scene for any reason other than to call for law enforcement, medical assistance or if staying at the scene poses a “significant risk” of injury. However, it includes a provision that says the driver “must return with the vehicle to the accident scene within a reasonable period of time, unless otherwise instructed by a law enforcement officer.”
The S.C. law doesn’t say law enforcement officers can instruct a person not to return to the scene.
Perhaps more importantly, Kuo said, is that the S.C. statute 56-5-1230 says the driver involved in hitting a person or damaging a vehicle must “render to any person injured in such accident reasonable assistance.”
It is unclear if the driver involved in the Bluffton crash offered assistance, according to information provided in the police report.
The report says the driver exited the car and saw an unknown black male lying in the road. An unknown white male then yelled at her to “back the (expletive) up.” She got back in her vehicle to back up, when the white male tried to open her passenger door.
“Being in fear for her safety, (the driver) left the scene and drove to her residence where she immediately called 911 to report the incident,” according to the report.
Bluffton police response
Bluffton Police Department spokesperson Joy Nelson said Friday the department will no longer discuss the case until the investigation is completed, although it previously answered questions about it.
The department issued a formal denial of a Freedom of Information Act request by The Island Packet and The Beaufort Gazette for the police body cam footage from the incident.
The newspapers also asked for any sketch created by the Bluffton Collision Reconstruction Unit, but Nelson said the unit did not create one.
Nelson cited section 30-4-40 3(B) of the law, exempting records from disclosure if releasing them “would harm the agency by: the premature release of information to be used in a prospective law enforcement action.”
But it appears she cited an old version of the FOIA law. According to the current law, that section deals with exempting records from disclosure that “would deprive a person of a right to a fair trial or an impartial adjudication.”
Alex Kincaid: 843-706-8123, @alexkincaid22