South Carolina Criminal Defense Blog

Driving down the road today in Myrtle Beach I noticed another billboard proclaiming "Buzzed driving is drunk driving." More state dollars spent on marketing to the potential jury pool with mis-truths about our state's DUI laws. Buzzed driving is not drunk driving, zero tolerance is not the law, and it is not against the law to drink and then drive. South Carolina law says that if you are driving, while under the influence to the extent that it substantially impairs your ability to drive, then it is against the law.

Along with the marketing blitz by law enforcement, the media does all that they can to feed the DUI fanatics. For example, a few days ago the Greenville News announced that South Carolina is one of the worst states for drunk driving: We "ranked No. 2 in deaths as the result of drunken driving, according to recently released 2007 figures." Which figures are they referring to?

Hopefully not from MADD, who takes the figures released by the National Highway Traffic Safety Administration for alcohol related deaths (which includes those accidents where there is a blood alcohol content of less than .08, or indications of alcohol such as a beer can found in the car or nearby), and translates this into alcohol-caused deaths? When dealing with DUI statistics the numbers usually come from biased agencies and are suspect.

The Greenville News article also hails the new DUI law which goes into effect February 10, 2009:

The DUI law, which takes effect in February, not only strengthens penalties but also requires counseling for offenders as well. That two-pronged approach should help reduce the terrible toll exacted by drunken drivers on our highways.

The new DUI law certainly increases penalties, providing for up to 7 years in prison for a drunk driver, but the old law already required counseling for offenders. The article praises the increased license suspension periods for persons who exercise their Fifth Amendment right to not give evidence against themselves (by blowing into the datamaster machine), and says "the law also gets rid of needless loopholes that kept some drunken drivers from being convicted." This needless loophole being the required reading of Miranda rights before the person is given the datamaster test.

The article goes on to lament how there are not enough troopers on our highways, but to praise the increased number of arrests in the past year. More people in jail = good. The news media is not going to write articles about the unreliability of the Datamaster and other breath testing devices, how the system of DUI laws is geared to deprive defendants of the right to a fair trial, or how we have created a DUI exception to the Constitution, any more than most legislators are going to address these issues, because readers want to read about how much of a problem drunk driving is, like they will cast their vote for the politician who makes the most noise about being tough on crime.

Wouldn't it be something if journalists wrote more articles on how the manufacturers of breath testing machines fight tooth and nail in court not to release the software code for these machines, and that when the code is finally released and tested, like the Alco-test 7110 in New Jersey:

The program presented shows ample evidence of incomplete design, incomplete verification of design, and incomplete “white box” and “black box” testing. Therefore the software has to be considered unreliable and untested, and in several cases it does not meet stated requirements. The planning and documentation of the design is haphazard. Sections of the original code and modified code show evidence of using an experimental approach to coding, or use what is best described as the “trial and error” method. Several sections are marked as “temporary, for now”. Other sections were added to existing modules or inserted in a code stream, leading to a patchwork design and coding style…

It is clear that, as submitted, the Alcotest software would not pass development standards and testing for the U.S. Government or Military. It would fail software standards for the Federal Aviation Administration (FAA) and Food and Drug Administration (FDA), as well as commercial standards used in devices for public safety…If the FAA imposed mandatory alcohol testing for all commercial pilots, the Alcotest would be rejected based upon the FAA safety and software standards…

Reason and rationality seldom have a place in the public debate about DUI, or crime of any type.

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Lawrence Taylor expounds on the practice of police officers using pre-written arrest reports in drunk driving cases - writing out "driving symptoms, slurred speech, failed sobriety tests, and admissions of drinking - and then just filling in the names, dates, etc., when they actually make an arrest."

Taylor points to a news channel investigation in Orlando Florida which uncovered evidence of the use of "DUI templates" by officers. Horry County officers may or may not use "templates," but the exact same language does appear in most reports and I do not doubt that many officers copy and paste their DUI symptoms from one report to the next. When the officers testify they often read from their reports because they cannot remember one DUI stop from another months after the fact, and although judges, prosecutors, and defense attorneys hear the same testimony every time, the jury does not know the difference because this is probably the one and only DUI trial that they will ever sit through.

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DUI lawyer Lawrence Taylor points out some interesting facts at his DUI Blog. MADD has been advocating for ignition interlock devices for all vehicles for a few years now, and Taylor asks why?

We see that MADD's list of corporate donors is topped by automobile manufacturers, donating over $100,000 each, who have been designing cars equipped with ignition interlocks, possibly in anticipation of government bowing to MADD and passing a law requiring them:

Platinum - $100,000+
DialAmerica Marketing, Inc.
Nationwide Mutual Insurance
Nissan North America, Inc.
DaimlerChrysler Corporation
CarMax Foundation
General Motors Corporation

Gold - $50,000+
Johnson & Johnson
Procter & Gamble
Anonymous
Outside the Classroom

Silver- $25,000+
Charter One Bank
GE Motor Club
Volkswagen Of America, Inc.
Takata
Oreck Direct
Ford Motor Company
Maid Brigade
Canadian National Railway Company
BP West Coast Products LLC

Bronze - $10,000+
Coca-Cola North America
Anonymous
Harvey Industries
Smart Start
Takata
American International Automobile Dealers
Anonymous

Special Donors
BP Corporation North America Inc.
Innocorp, Ltd.

MADD is big money. Taylor points out that in 2006 (still the most recent statistics available on MADD's website) MADD received over $51 million in contributions, and received the lowest possible rating for "fundraising efficiency" - "the percentage of money raised that actually goes to the stated objectives rather than to salaries, overhead, etc."

I don't want to believe that I live in a society that would tolerate an ignition interlock device in every car, and I know that I would not purchase a car equipped with such a thing. It is frightening to think that people may agree to allow the government to monitor us every time we get into our own car, and more frightening to imagine, if we allowed that to happen, what will be next.

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Last week in court I saw an attorney who was pleading his client to a DUI 2nd offense and was taken completely by surprise by the stack of forms that his client was required to sign before the Court would hear the guilty plea. Among them was the requirement that an ignition interlock device be installed on the defendant's car, following the suspension period. Even after the solicitor explained what it was to the defense attorney, the lawyer did not explain it to his client but just put the papers in front of him, said sign here, here, and here, and then continued with the plea.

Every attorney that handles DUI cases needs to be aware of these requirements, found in S.C. Code Sec. 56-5-2941 and 56-5-2942, which are complicated, draconian, and can easily result in further penalties down the road with limited due process. Following any conviction for DUI 2nd offense or greater, the person's driver's license is suspended, they must "immobilize" (surrender the tags and registration) all vehicles registered in their name for 30 days (during the suspension period), and after the suspension period has run they must install an ignition interlock device.

Even if a DUI 2nd is remanded to the magistrate court for a plea to DUI 1st, the ignition interlock requirement applies, because it is determined by what is on the driving record and not what is before the Court. After a 2nd offense DUI the ignition interlock must be complied with for 1 year, after a 3rd offense 3 years, and after 4th offense the law says a defendant must have an ignition interlock device for the rest of their life, although there is a separate provision to apply for relief after 10 years.

The person has to pay a monthly fee to the probation department who supervises the interlock device, and has to have it inspected every 60 days. There is then a point system, where the person receives points if the machine registers greater than a .02 BAC or if the person does not have the inspection done each 60 days. Points lead to a longer period of time with the device, a requirement of enrolling in counseling with DAODAS, or a further license suspension. The remedy for assessment of points by the probation department is to appeal the decision . . . to the probation department. You won't get a hearing or be permitted to present evidence before they make their decision.

If the person does not follow the requirements, further criminal charges and jail time could result. If the person drives without installing the device, they can be charged criminally and punished as if they were guilty of DUI. Tampering with the device, providing a car to someone who is required to use the device, asking another person to start the car, or starting the car if you are another person are misdemeanors that carry up to 30 days in jail.

Note that on SCDPPPS's FAQ on their website, it says that if another persons drives the vehicle, they will have to blow into the interlock device as well. The law, on the other hand, says that it is a misdemeanor punishable by 30 days for another person to use the car.

Ignition interlock devices are no more reliable than Datamaster machines, and probably less so. The machine will make mistakes, and this coupled with the stringent reporting requirements and lack of due process for violations is bound to land many people into an administrative nightmare. Maybe that was the drafter's intention?

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South Carolina law enforcement has begun their latest DUI campaign, kicking off operation "sober or slammer" last Friday.

Troopers say no matter if you're a teacher or a preacher, or anyone else, if you're caught drinking and driving you're going to jail.

The Highway Patrol says they are going to triple the number of officers on the road through September 1st, and will use the extra manpower to set up roadblocks as well. On Friday morning law enforcement held a news conference at Mount Hope cemetery in Florence, complete with anti-DUI banners and pictures of a DUI victim to announce the crackdown.

It is undeniable that drinking and driving can have tragic results. However, I predict that in the next few months what we will see are an increase in persons who were not legally under the influence who were arrested and taken to jail to bump law enforcement's numbers. If there is an increase in arrests, the operation will be a success. Of course, if there is no increase in arrests, the operation will be a success, because the decrease will be due to less people drinking and driving as a result of the campaign.

I believe one (intended?) effect of these marketing blitzes by the Highway Patrol is large-scale jury tampering. I have had officers testify on the stand that one drink before driving is illegal, and there are many people who believe that any amount of alcohol before driving is against the law. That's what the commercials are saying, right? Zero tolerance. Sober or slammer. You drink and drive, you lose. But that is not what the law is, nor is that what the law should be - the law says that DUI is impairment by alcohol or drugs to the extent that it affects your ability to drive, and only when you blow greater than a .08 on the datamaster is the jury instructed that there may be a rebuttable inference of intoxication.

When trying a DUI, the first thing that I tell the jury in opening statement is that it is not against the law to drink and then drive. I ask for an instruction from the judge that zero tolerance is not the law in South Carolina, and given the saturation of the "zero tolerance" advertising it is a necessary instruction to attempt to dispel the jury's confusion on the issue. I hope that operation sober or slammer does some good for someone somewhere in the state, but the violation of Fourth Amendment rights at roadblocks and the arrests of persons who were not legally drunk is too high a price to pay.

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73 year old television evangelist evangelist Dr. William Crews was arrested and charged with driving under the influence this week in Dorchester County. He has maintained that he was not too drunk to drive and says he will fight the charge.

This is another example of how anyone can be charged with DUI - there but for the grace of God go I. The comments to the News 7 article I linked to also illustrates the guilty until proven innocent mentality when it comes to DUI's, throwing the presumption of innocence out of the window:

I don’t know anyone who would be dim-witted enough to believe his story. If you are charged with a DUI, there is obviously enough evidence to charge you. If you have not been given a field sobriety test, then they would have at least done a blow test or something. Sounds like he is not ready to give up his ministry as a Southern Baptist Pastor.

Obviously, if you are charged with a crime, there must be sufficient evidence. We've been doing it wrong all this time - who needs judges or juries when we've got police?

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A Wichita Falls, Texas man was sentenced to life in prison following his 10th DUI conviction. Last year the Mississippi Supreme Court upheld a life sentence for a DUI 3rd offense.

From Lawrence Taylor's DUI Blog:

Well, you say, he may be an alcoholic, but he didn't have to choose to drive. But that’s a Catch-22, isn’t it? I mean, part of the legal definition of driving while intoxicated is impaired judgment – the inability to make rational and intelligent choices.

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From Greenville Online:

An Anderson County magistrate suspended in June after he was charged with grabbing a woman's rear end in a Williamston bar has been charged with DUI, according to a spokesman for the state Department of Public Safety.

I don't know this particular magistrate, but he is entitled to the same presumption of innocence that every other accused person is, and rather than pointing the finger and saying "aha," I believe this is an another example of how anyone can be charged with DUI. Legislators, prosecutors, and judges should consider that "there but for the grace of God go I."

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In Lexington, S.C. today MADD presented awards to SCHP Troop One and to individual officers for making the most DUI arrests.

Last year, the troop, which covers Clarendon, Sumter, Lee, Kershaw, Richland and Lexington counties, made 2,180 DUI arrests, up 320 from the previous year.

Troopers made 665 DUI arrests in Lexington County during 2007, putting it fourth in the state for such arrests.

Should troopers be competing to make the most arrests? Quantity > quality. Another notch in the belt.

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DUIBlog found this story on a Georgia man charged with drunk biking. A man fell off his bicycle, was given field sobriety tests, a breath test, was arrested and charged with DUI. Apparently, bicycle riders in Georgia are subject to the same laws as drivers are - does he now lose his driver's license as a result of drunk biking?

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Driving under the influence is usually a victimless crime. If someone is killed or injured in an accident that involves an intoxicated driver, then there is a victim involved, but the charge will be Felony DUI in South Carolina, not DUI. Most of the time, DUI involves a traffic stop where no injuries are involved, field sobriety tests, breathalyzer or a blood test, and no victim. I say usually it is victimless, and not always, because there are times when a two car collision results in a misdemeanor DUI charge and yet there are not injuries sufficient to raise the charge to felony DUI, or there are times when a one-car accident while intoxicated results in property damage.

Shawn Matlock at the Matlock Blog makes the argument that DUI should not be a crime. He points out that DUI's clog the court's dockets more than any other type of case, and that DUI's are about two things: driver's licenses and money. He suggests that DUI's are more administrative issues than they are crimes, and perhaps we should begin treating them that way. The license restrictions and the financial penalties could be handled administratively, without every misdemeanor DUI going through the criminal courts.

People who come to me after being accused of driving under the influence are, without fail, most worried about losing their license. If they refuse the datamaster and their license is suspended, we request an administrative hearing to regain their license and they can get a temporary license until the hearing. If they are convicted of DUI, they will lose their license again. People need their driver's license to get to work, to take the kids to school, to buy their groceries, to survive.

The worst consequences of a misdemeanor DUI conviction, as Matlock points out, are the license suspension and the financial consequences. In South Carolina, it is 150$ to request an implied consent hearing and 100$ to obtain a temporary license from the DMV. Fines can run into the thousands for the DUI and related traffic tickets. ADSAP, which is mandatory if you lose the administrative hearing or if you are convicted of the DUI, can cost up to 2500$. 100$ reinstatement fee after the 6 month suspension for a DUI 1st offense, and then SR-22 insurance for 3 years which can cost thousands more. And this does not take into account the cost of hiring a DUI attorney to fight the charges.

I believe that there should be no such thing as a victimless crime - if there is no victim, there is no crime, only extraneous regulations and restrictions imposed on us by an out of control government. Among others, this includes drug possession and use, prostitution, gambling, and most misdemeanor DUI's.

I understand that when a person's family member is injured or killed by a drunk driver, that person is angry - they are a victim (of felony DUI). They want to make a difference, and prevent the same thing from happening to anyone else, and they need to do something to help the healing process. And these are the people that legislatures are responding to in passing get-tough-on-DUI laws, but criminal law is not the answer to every social ill. Instead of criminalizing more conduct, scarce resources can be put into prevention and treatment. We can find more creative ways to solve society's problems than locking people up in jails.

My opinion is that victimless DUI's should not be a crime. Felony DUI carries quite severe penalties and is vigorously prosecuted. When a misdemeanor DUI results in property damage or minor injuries it should be prosecuted as a crime, because there is a victim. When a person drives and is obviously under the influence to the extent that it impairs their ability to drive (which is not the case in many DUI arrests), a civil penalty or forfeiture of license is appropriate provided there is due process.

Of course, my opinion does not matter to the South Carolina legislature - DUI will not be decriminalized, the DUI laws will be enforced, and harsher and harsher laws will be passed. DUI and other traffic offenses will continue to be a cash cow for local governments. Any legislator who agrees that when there is no victim there is no crime will never speak the truth publicly, because it would be political suicide. Harsher DUI laws, more restrictions on convicted sex offenders, and tougher drug laws wins votes. Beating the DUI drum is a sure-fire way to work a constituency into a fever, and we will hear it again year after year.

Posted by Bobby G. Frederick | Permalink | Email This Post | Comments (3)

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In Myrtle Beach, along the coast and waterway, DNR makes quite a few BUI cases - imagine, out on the water on the Fourth with family or friends, having a cold beer, a DNR boat pulls up alongside and you are cuffed, hauled off, and spend the holiday in jail.

See DUI a victimless crime? Substitute BUI and felony BUI for DUI.

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At the beginning of every criminal trial, we tell the jury that the defendant is presumed innocent unless and until proven guilty. That the burden of proof is always on the government, and the defendant does not have to prove anything at all. That the burden of proof that the government has in criminal cases is the highest burden of proof in any kind of case, in any courtroom. And yet, the notion that a person would not have been charged with a crime if they were not guilty, that the prosecutor would not be telling us this person is guilty if they were not guilty, is difficult to overcome.

Nowhere is this more apparent than in DUI trials. Lawrence Taylor's Anatomy of a DUI Lynching on his DUI Blog demonstrates this problem by pointing us to a news story about a high school student who was accused of drunk driving and causing an accident which resulted in severe injuries to a 9 year old child, and the comments which were posted below the story. Most of the comments railed against the horrors of this spoiled rich kid who was driving drunk at 7:45 in the morning.

When a follow up story revealed that the driver's BAC as determined by a blood test was 0.00, many of the ensuing comments still assumed that the boy was drunk, and that his rich parents "got him off."

What is concerning is that these people who are writing these comments may be a cross-section of the jury pool in my next DUI trial. The fervor that accompanies DUI, stirred up by MADD and other organizations, soundbytes from politicians, and televised advertising by law enforcement in South Carolina (sober or slammer, you drink and drive you lose) makes it difficult if not impossible to draw an unbiased jury in any DUI case.

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I posted earlier this month about a DUI scared-straight hoax pulled by a school in California, where highway patrol officers came to classes and pretended that students were dead from alcohol related car crashes. The teachers from the school now are defending their actions to the media.

"They were traumatized, but we wanted them to be traumatized," said guidance counselor Lori Tauber, who helped organize the shocking exercise and got dozens of students to participate. "That's how they get the message."

The school superintendent "said he was glad that students seemed to have gotten the message."

They wanted them to be traumatized. The guidance counselor organized the event. Has no-one filed a lawsuit against this school district or MADD yet?

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From Balko at theagitator.com: An elaborate hoax on high school students in San Diego involved a student not showing up to class, in each class. Then an officer went in and explained to the class that their friend was dead, having been killed in a drunk driving accident. The officer read a eulogy and placed a rose on the seat. Then, later in the morning, the children are taken to a stadium where they discover that their friend is not dead after all, but they are forced to sit through a dramatic reenactment of a car crash.

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How to get busted for DUI - marry a DUI lawyer. The Phoenix New Times reports that Heather Squires, the wife of an Arizona DUI attorney, was arrested and charged with DUI despite not having had a drop of alcohol. She was given the breathalyzer at the station, which registered a 0.00.

Coincidentally, the officer, Bond Gonzales, had recently lost a DUI trial to Heather's husband Jason Squires. Heather was driving Jason's truck, which was registered in Jason's name, and Jason was with her in the truck. Heather was almost immediately handcuffed when she stepped out of the truck. Gonzales never asked how much she'd had to drink. Although Bond carried a portable breath test, he never administered it.

Heather did not have a drop to drink, and registered a 0.00 on the breathalyzer, yet the officer's report states that she had "bloodshot and watery eyes," a "flushed face," and a "strong odor of alcoholic beverage emitting from breath."

The government has resorted to prosecuting defense attorneys, forcing their disqualification from cases, even having them disbarred from practice. Going after their families is a new low.

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Tracey Amick reports that

On Friday, Sheriff Ray Nash and Prosecutor Barry Barnette called a press conference to "set the record straight"- claiming the glitch on the tape that dismissed the whole case didn't exist . . . There was no gap no glitch it should've gone to a jury, Barnette said.

What is this if not a public slap to the judge? They are going to appeal the decision to the circuit court, and if the issue was decided wrongly it will be corrected by the higher courts.

Rule 3.6 prohibits extrajudicial statements by attorneys involved in the proceeding that could prejudice the proceedings, but there is an exception that allows statements in response to statements made by others, "where a reasonable lawyer would believe a public response is required in order to avoid prejudice to the lawyer's client."

Does this exception permit the parties to respond publicly to a ruling by a judge during the proceedings? The judge said part of the video was missing and this was the basis of the ruling. Does this entitle the prosecutors to call a press conference and "set the record straight," and challenge the judge through the media? If the ruling was wrong it will be corrected by the circuit court, so what do they gain by these media statements other than prejudicing the potential jury pool?

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Senator Randy Scott's DUI was dismissed today, because the video was missing portions of the audio and no affidavit was submitted by the deputy.

S.C. Code § 56-5-2953 mandates videotaping of the incident site, but provides for some exceptions. If one of the exceptions applies, the officer must submit an affidavit explaining why videotaping was not possible. Because this is mandatory, if the officer does not comply the case can be dismissed, pursuant to City of Rock Hill v. Suchenski, a 2007 South Carolina Supreme Court case.

Senator Scott has claimed from the beginning that his arrest and prosecution were politically motivated, a product of a long standing feud with Dorchester County Sheriff Ray Nash. Nash has denied any political motivation.

Despite Nash's lack of political motivation for this prosecution, Sheriff Nash persuaded 7th Circuit Solicitor Trey Gowdy and 7th Circuit Deputy Solicitor Barry Barnette to travel 200 miles, from Spartanburg, S.C. to Dorchester County, to prosecute Senator Scott. Gowdy and Barnette are reputed to be the best DUI prosecutors in the state, and Gowdy has been "campaigning" for tougher DUI laws for years. 16 phone calls were made before Scott was pulled over by the deputies. The County Sheriff was sitting at the prosecution table as Scott's trial began. Nothing political about this prosecution.

The Spartanburg prosecutors will likely file a motion to reconsider today's ruling, followed by an appeal. If the appellate court overrules the magistrate's decision, the trial may still go forward.

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