What follows is the complete text of Section 16-25-70, part of South Carolina's CDV Law. Comments provided by CDV Defense Attorney James Snell are provided in bold italics.
§ 16-25-70. Warrantless arrest or search; admissibility of evidence.
(A) A law enforcement officer may arrest, with or without a warrant, a person at the person's place of residence or elsewhere if the officer has probable cause to believe that the person is committing or has freshly committed a misdemeanor or felony pursuant to the provisions of Section 16-25-20(A) or (D), 16-25-65, or 16-25-125, even if the act did not take place in the presence of the officer. The officer may, if necessary, verify the existence of probable cause related to a violation pursuant to the provisions of this chapter by telephone or radio communication with the appropriate law enforcement agency. A law enforcement agency must complete an investigation of an alleged violation of this chapter even if the law enforcement agency was not notified at the time the alleged violation occurred. If an arrest warrant is sought, the law enforcement agency must present the results of the investigation and any other relevant evidence to a magistrate who may issue an arrest warrant if probable cause is established.
(B) A law enforcement officer must arrest, with or without a warrant, a person at the person's place of residence or elsewhere if physical manifestations of injury to the alleged victim are present and the officer has probable cause to believe that the person is committing or has freshly committed a misdemeanor or felony under the provisions of Section 16-25-20(A) or (D), or 16-25-65 even if the act did not take place in the presence of the officer. A law enforcement officer is not required to make an arrest if he determines probable cause does not exist after consideration of the factors set forth in subsection (D) and observance that no physical manifestation of injury is present. The officer may, if necessary, verify the existence of an order of protection by telephone or radio communication with the appropriate law enforcement agency.
This section creates the statewide "zero tolerance" policy for CDV arrests. If the police are called out to a domestic disturbance, and they find that there was an unwanted touching, attempted touching or some threat of touching (either verbal or physical) they must make an arrest. This requirement exists to cover all the situations where police respond and find that nothing really significant occurred and/or the alleged victim is requesting (or more likely begging) for the police to not make an arrest.
(C) In effecting a warrantless arrest under this section, a law enforcement officer may enter the residence of the person to be arrested in order to effect the arrest where the officer has probable cause to believe that the action is reasonably necessary to prevent physical harm or danger to a family or household member.
Police do not need a search warrant to come inside of a residence if they believe that a CDV has or will be occurring. This purports to allow police to enter a home when they respond to a 911 call and someone answers the door and tell them that everything is now fine. Of course this law cannot override your 4th amendment rights, however in many cases police will push it as far as they can.
(D) If a law enforcement officer receives conflicting complaints of domestic or family violence from two or more household members involving an incident of domestic or family violence, the officer must evaluate each complaint separately to determine who was the primary aggressor. If the officer determines that one person was the primary physical aggressor, the officer must not arrest the other person accused of having committed domestic or family violence. In determining whether a person is the primary aggressor, the officer must consider the following factors and any other factors he considers relevant:
(1) prior complaints of domestic or family violence;
(2) the relative severity of the injuries inflicted on each person taking into account injuries alleged which may not be easily visible at the time of the investigation;
(3) the likelihood of future injury to each person;
(4) whether one of the persons acted in self-defense; and
(5) household member accounts regarding the history of domestic violence.
(E) A law enforcement officer must not threaten, suggest, or otherwise indicate the possible arrest of all parties to discourage a party's requests for intervention by law enforcement.
If the police do threaten to arrest everyone this is something that can be presented as part of an overall defense strategy at the trial of the case. It may however be difficult to prove this occurred due to the fact that a police office may deny making threatening statements.
(F) A law enforcement officer who arrests two or more persons for a crime involving domestic or family violence must include the grounds for arresting both parties in the written incident report, and must include a statement in the report that the officer attempted to determine which party was the primary aggressor pursuant to this section and was unable to make a determination based upon the evidence available at the time of the arrest.
If the police don't include this language in their report after making a dual arrest we will make a motion to have the charges against our client dismissed. Although this motion is not always granted, it may be used in negotiating with prosecutors to obtain dismissals (even with the no drop policy in place), or as a successful trial defense.
(G) When two or more household members are charged with a crime involving domestic or family violence arising from the same incident and the court finds that one party was the primary aggressor pursuant to this section, the court, if appropriate, may dismiss charges against the other party or parties.
(H) Evidence discovered as a result of a warrantless search administered pursuant to a complaint filed under this article is admissible in a court of law:
(a) in plain view of a law enforcement officer in a room in which the officer is interviewing, detaining, or pursuing a suspect; or
(b) pursuant to a search incident to a lawful arrest for a violation of this article or for a violation of Chapter 3, Title 16; or
(2) if it is evidence of a violation of this article.
An officer may arrest and file criminal charges against a suspect for any offense that arises from evidence discovered pursuant to this section. Unless otherwise provided for in this section, no evidence of a crime found as a result of a warrantless search administered pursuant to a complaint filed under this article is admissible in any court of law.
If the police enter your home without a warrant as part of a CDV investigation or arrest, and they find evidence of another crime (drug possession, burglary, murder, etc.), you can be arrested and prosecuted for those offenses as well.
(I) In addition to the protections granted to the law enforcement officer and law enforcement agency under the South Carolina Tort Claims Act, a law enforcement officer is not liable for an act, omission, or exercise of discretion under this section unless the act, omission, or exercise of discretion constitutes gross negligence, recklessness, willfulness, or wantonness.
This final section serves to let law enforcement agencies know that they are immune from most lawsuits if they make a false CDV arrest. This helps motivate law enforcement to make as many CDV arrests as possible.