A Vermont state trooper changed the results of a breath alcohol test, writing in a result of .102 when the result was actually .69. His defense when he was sued: Hey, I thought I was allowed to do that?
Sleigh said Robillard wrongly believed the law allowed him to revise Henn’s breath-test result to a figure close to what a preliminary breath test indicated at the time of the traffic stop in order to support a license-suspension citation.
The mayor of Surfside Beach was charged with driving under the influence early Friday morning. I don't any of the facts of the case and the article linked to does not give much information. Again, it goes to show that an accusation of DUI can happen to anyone.
A Mount Pleasant police officer was charged with driving under the influence after driving her car into an apartment complex pond in North Charleston Thursday night. H/T Injustice Newsfeed.
An Orangeburg County sheriff's deputy was charged with driving under the influence after crashing his patrol car into a ditch while off-duty, and last weekend an officer in Charleston was arrested and charged with DUI after hitting a parked car and leaving the scene. (H/T Law and Baseball)
In Myrtle Beach throughout the Christmas and New Year season, signs can be found giving the number for a hotline to call if you see a drunk driver - an idea that is more dangerous than helpful. Anytime a driver swerves on the road for any reason (there are many besides having had too much to drink) they are subject to being followed by a vigilante while the police come to arrest them. Even worse, you are subject to anonymous calls, whether prank or malicious, identifying you as a drunk driver.
Wednesday night I drove to a prison in Lumpkin, Georgia, to visit a PCR client (an eight hour drive on a good day), and drove back yesterday (New Year's Eve). Driving back through Aynor, a patrol car came up behind me and followed myself and a car that was next to me one lane over and then pulled the other car just before we left city limits. Maybe I missed something, but they were driving the same speed as I was (not speeding), next to my car, and I did not see them swerve. For most of the drive, although I had nothing to drink, I was paranoid that I would be stopped and subjected to roadside tests, as many drivers over the holidays doubtlessly were.
Of course I think that truly drunk drivers need to be kept off of the road, but I am wondering how many people were stopped and harassed over the holidays in an attempt to boost DUI arrests and to show that the agencies' grant money and rewards are justified? DUI enforcement is truly the front-line of the erosion of our Constitutional Rights.
13 Dodge Chargers and 2 Chevy Tahoes awarded to agencies based on the number of DUI arrests (not convictions, arrests):
The 13 agencies that received the 13 Dodge Chargers and two that received Chevrolet Tahoes on Wednesday have to qualify by doing monthly DUI enforcement and other activities.
This is not quotas, it's the reward system. The article also notes the Highway Patrol will begin an "advertising blitz" during the holidays. Sober or slammer, zero tolerance is the law, buzzed driving is drunk driving, and other misstatements of the law for general consumption.
Random DUI stops are pretty rare. Contrary to what police officers would have you believe, most DUI stops do not result from an officer driving down the road, seeing a random motorist swerving, and then leaping into action to protect the public (although I have no doubt that this does happen at times). More often, officers are looking for a pretext to pull someone over, then if there is any odor of alcohol (real or imagined), they get the person out of the car for roadside exercises.
There is a bar on my way home from the office (Remedies in Myrtle Beach) where almost every evening when I drive by there are blue lights on the side of the road. Many of my clients pull out of the parking lot of a bar and are immediately picked up and followed by a police officer until they fail to use a turn signal or swerve.
The S.C. Highway Patrol has "DUI enforcement units" that do nothing but drive around looking for potential DUI's.
The State Department of Public Safety sent a news release Friday saying that additionally, the number of SCHP DUI arrests are continuing to rise with the addition of new DUI teams throughout the state devoted exclusively to DUI enforcement. These teams have made more than 1,000 DUI arrests since July.
A trooper in the above article points out that during the Christmas season, people at office parties may have a couple of drinks and not realize the potential effects. The problem with this is that some officers think that one drink is too many, and if they smell alcohol (one beer on the breath smells the same as ten) they will look for a way to take the person in.
The truth is that it is not illegal to have a couple of drinks at an office party and then drive. Drinking and driving is not illegal in South Carolina. The South Carolina Department of Public Safety, MADD, and other organizations have been engaging in a propaganda campaign for years, with billboards and television and radio ads, proclaiming that zero tolerance is the law, buzzed driving is drunk driving, sober or slammer, and other slogans designed to mislead the public (and taint the jury pool) about what the law is in S.C. The law does not say that a person cannot drink and then drive - the law says that DUI is when a person's faculties to drive are materially and appreciably impaired.
Law enforcement agencies receive grants based on the number of DUI arrests they make - if the number of arrests goes down, they are in danger of losing that money. Law enforcement officers are given awards for the number of DUI arrests they make (arrests - not convictions), which encourages them to make as many DUI arrests as they can in order to gain recognition.
DUI enforcement is a lucrative business for both law enforcement and organizations such as MADD, and the competition to see who can make the most arrests has gotten out of control.
A federal prosecutor in Rhode Island, Assistant U.S. Attorney Gerard Sullivan, refused a breath test but was not charged with DUI after allegedly using his position to influence the officers involved:
McCartney said Sullivan was stopped early Thanksgiving morning for driving erratically and smelled of alcohol. He said Sullivan told the officer he had just left a tavern and had been drinking. When asked how much, he replied "too much."Sullivan then failed a series of field sobriety tests and was taken into custody. He later refused to take a chemical breath test, McCartney said.
According to officers who dealt with him, Sullivan said several times that he is a prosecutor and knows the chief. Sullivan, the former head of the criminal division in the U.S. attorney's office in Rhode Island, has been deeply involved in prosecuting Statehouse corruption.
McCartney said there is a department policy to charge people who refuse a breath test with DUI "if the circumstances are corroborated," but Sullivan was only charged with refusing the breath test. McCartney said the decision is under two separate police reviews, oneby the professional standards unit and one by a so-called prosecution officer, who is working with the city solicitor's office.
I'm all for police/ prosecutorial discretion in not charging people with driving under the influence unless they are sure - but here we have a public official who reportedly admitted he had been drinking "too much," and reportedly used his position as a prosecutor to avoid the criminal charge. It could happen to anyone, yes. But consider the irony of one getting special treatment because he is in a position of someone who enforces the law.
While driving home from the office this weekend I saw a trooper with his blue lights on in the parking lot of Remedies, a bar in Myrtle Beach, giving a guy field sobriety tests directly in front of the entrance to the bar. Now, either the guy was pulled over and just happened to stop in the parking lot of a bar, or he didn't get a chance to get out of the parking lot before the trooper put the blue lights on. I really should have driven back by to see who the trooper was, but didn't.
That's taking DUI prevention and enforcement to new levels - everyone in the bar sees blue lights through the windows and watches as the cops humiliate a guy with roadside exercises then put the cuffs on him. How many people, drunk or not, do you suppose called a cab after that dog and pony show?
Clinton police officer Joshua Howell was arrested for driving under the influence early Friday morning. Maybe he is guilty, maybe not - just one more in a long string of South Carolina law enforcement officers and public officials caught in the DUI net.
The 14th circuit public defender was arrested and charged with driving under the influence Tuesday night (the 14th circuit includes Beaufort, Jasper, Hampton, Colleton and Allendale counties).
The public defender who oversees the 14th Judicial Circuit, which includes Beaufort County, was arrested Tuesday night on a charge of driving under the influence, according to the Beaufort County Detention Center log.Gene Hood, 65, of Beaufort, was arrested in northern Beaufort County and was taken to the detention center just after 8 p.m., Capt. Allen Horton of the Beaufort County Sheriff's Office said.
I don't have any other information about this case, and I'm just passing along what the paper reported. I can think of scenarios where some police would love to set up a defense attorney and arrest them - quite the opposite of the deferential treatment another officer or prosecutor may get during a traffic stop; but, on the other hand, this may be just another example of how a DUI arrest could happen to anyone - cops, lawyers, mill workers, priests, this is one criminal offense that casts a wide net.
Truly, I think that things are rarely exactly as they seem. Our perceptions of people, based on a single exchange or even multiple exchanges in any given context, show only a snapshot of a moment in time. When recreating the events that led to a person's arrest, the different pictures created by defense and prosecution may both be skewed and sometimes it is impossible to find the truth.
Sometimes there are the rare moments when a lying officer is caught on video or audio, and we see that things are not as they seem. Similarly, sometimes a defendant is caught lying on video or audio. When there is no hard proof, unfortunately, most people will believe the officer and will trust the authorities, despite the fact that our system is based on the principles of proof beyond a reasonable doubt and innocent until proven guilty.
Many assumed that Atlantic Beach Mayor Retha Pierce was guilty of DUI, based on her recent string of arrests (and I don't doubt that she has a valid defense in each instance), but she appears to be vindicated by a recent announcement of the results of her drug and alcohol tests:
Drug tests Atlantic Beach mayor Retha Pierce took at Quality Drug Screening in Sumter show no drugs or alcohol were in her system when she was arrested on DUI charges in Marion County in September. . . .A hair test taken on October 14 at Quality Drug Screen showed Pierce had no cocaine, marijuana, opiates, methamphetamines, or phencyclidine in her system.
A urine test administered by the South Carolina Law Enforcement Division also showed Pierce had no alcohol in her body when she was arrested.
Webb said the tests are admissible in court and the results cover a span of six months.
It is rare that a person wrongfully accused of drunk driving has the forethought to go and get a drug test done (or to call a DUI lawyer before their court date), but it can make the difference between a criminal conviction and a clean record.
A guy in Minnesota pled guilty to driving under the influence while in his Laz-E-Boy recliner, which was outfitted with a lawnmower engine and a stereo, after crashing it into a car on his way home from the bar:
A Minnesota man has pleaded guilty to driving his motorized La-Z-Boy chair while drunk. A criminal complaint says 62-year-old Dennis LeRoy Anderson told police he left a bar in the northern Minnesota town of Proctor on his chair after drinking eight or nine beers.
Seriously?
In other recent news, people have been charged with DUI on a motorized bar stool, a battery-operated toy motorbike, and a horse. We have represented several people who were charged with DUI on golf carts as well.
Captain William Frontz of the Myrtle Beach Police Department was charged with drunk driving, careless and reckless driving, and open container in N.C. last Saturday, and refused to take field sobriety tests.
A veteran captain with the Myrtle Beach Police Department is on personal leave following his arrest on a DWI charge in North Carolina, authorities said Monday.William Edward Frontz, 53, was charged with driving while intoxicated, careless and reckless driving, and an open container violation when he was arrested at 5:40 p.m. Saturday on Interstate 73 near Greensboro, according to the Guilford County Sheriff's Office.
Frontz, the Investigative Division commander for Myrtle Beach police, was off duty at the time of his arrest and is currently on personal leave from the police department, said Capt. David Knipes, police spokesman.
S.C.'s revised DUI laws went into effect today at noon. Below is a basic outline of the major changes, from a post in May of last year:
Revised penalties under the new 56-5-2930:First offense: $400.00 or 48 hours to 30 days in jail, or 48 hours community service.
If the blood alcohol concentration (BAC) is .10 to .15: $500.00 or 72 hours to 30 days in jail, or 72 hours community service.
If the BAC is .16 or greater: $1000.00 or 30 days to 90 days, or 30 days community service.Second offense: $2100.00 to $5100.00 and 5 days to 1 year in prison.
BAC of .10 to .15: $2100.00 to $5100.00 and 30 days to 2 years in prison.
BAC of .16 or greater: $3500.00 to $6500.00 and 90 days to 3 years in prison.Third offense: $3800.00 to $6300.00 and 60 days to 3 years in prison.
BAC of .10 to .15: $5000.00 to $7500.00 and 90 days to 4 years in prison.
BAC of .16 or more: $7500.00 to $10,000.00 and 6 months to 5 years in prison.Fourth or subsequent offense: 1 year to 5 years in prison.
BAC of .10 to .15: 2 years to 6 years in prison.
BAC of .16 or more: 3 years to 7 years in prison.The jury makes the determination of what the BAC was, following a guilty verdict. If the jury does not reach a unanimous decision regarding the BAC, but does find that the accused is guilty, then the sentence is based on the non-enhanced penalties.
Another major change in the DUI law will be the deletion of the requirement that Miranda rights be read to the accused at the breath-testing site. Miranda must still be read to the accused on the roadside video, but not at the station.
The major changes are going to be in the penalties, which are now graduated based on BAC result. I'll more of the details in the coming weeks, as time permits.
Yesterday, in Hipp v. SCDMV, the S.C. Supreme Court upheld a circuit court's decision to enjoin the DMV's delayed suspension of Charles Hipp's driver's license 12 years after his DUI conviction. In 1993 Hipp was convicted of DUI in Georgia, but was a South Carolina resident. He paid a fine and fulfilled all conditions required by the Georgia court. 12 years later, in 2005, the South Carolina DMV suddenly decided to suspend his license based on the 1993 conviction. Hipp filed a declaratory judgment action to enjoin the suspension, which was granted by the circuit court, and upheld by the S.C. Supreme Court.
The circuit court cited three grounds for enjoining suspension of Respondent’s driver’s license: (1) that the applicable statute is ambiguous; (2) the doctrine of laches; and (3) that suspension twelve years after conviction violates the “fundamental fairness” required by due process. We find the circuit court’s conclusion as to fundamental fairness to be persuasive and so, affirm.[1]A person’s interest in his driver’s license is property that a state may not take away without satisfying the requirements of due process. Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed2d 90 (1971). Due process is violated when a party is denied fundamental fairness. City of Spartanburg v. Parris, 251 S.C. 187, 191, 161 S.E.2d 228, 230 (1968).
In State v. Chavis, 261 S.C. 408, 200 S.E.2d 390 (1973), South Carolina held that fundamental fairness was not violated by a suspension after a one-year delay. So, we now know that a one-year delay is ok, but a 12 year delay is not. What the opinion does not address is what the result is when the driver turns in their license to the clerk at the time of conviction, in which case S.C. law says that the suspension period runs from the date of conviction. In General Sessions, there is a DMV form that must be filled out and given to the clerk, which should serve as evidence of the defendant's relinquishment of their license.
I predict that a declaratory judgment action should also be successful where the DMV delays the license suspension and does not run it from the date of conviction per the statute, where the defendant surrenders his or her license and/or fills out the DMV form at the time of conviction.
We win. What kind of prize do we get?
South Carolina Highway Patrol troopers made the most arrests for driving under the influence in Horry County during the recent holiday period, according to figures released from the state Department of Public Safety.Troopers issued 33 DUI citations in Horry County from Dec. 31 to Jan. 4, said Sid Gaulden, state public safety spokesman. Richland County was second with 22 citations issued, followed by 18 citations written in York County and 17 in Greenville County, he said.
I will say that over past several weeks I have seen more flashing blue lights on the roadsides than ever, troopers, county, and city police. My guess is that they were not just looking for DUI's, but rather pulling over anybody that they could for anything under the sun, hoping to smell alcohol once they got to the car window.
Also, we have gotten many calls in the last week or so regarding DUI's and other charges stemming from questionable roadblocks - described as being set up in dark areas with no lights or warning that there was a roadblock ahead.
Charleston DUI lawyer Tim Kulp, at his brand spanking new South Carolina DUI blog, has posted the times and locations of the SCDPS "batmobile":
The schedule is:Friday evening the 19th of December from 10:30 pm until 12:30 am. LOCATION will be Mathis Ferry Road and Wando South
Saturday evening the 20th of December, from 12:30pm until 2:00 am. LOCATION will be the Hungryneck area and the Newmarket area
Sunday evening the 21st of December from 11pm until midnight. LOCATION will be Bowman Road and K-Mart area
Sunday evening the 22nd in the area of Whipple Road and the Sports Complex.
Tim Kulp is among the best DUI lawyers in our state, and I look forward to reading more from him as his blog develops and grows.
Via the agitator: a Massachusetts state trooper who was given the "drive for life" award by MADD for her aggressive DUI arrests is now under investigation for police brutality and for lying on the stand.
Trooper Kathleen T. Carney was stripped of her service weapon and cruiser last week after a Dec. 1 duty status hearing stemming from allegations of brutality in the drunken-driving arrest of a 35-year-old Quincy woman, Patricia J. Dooling, on the night of Aug. 28, according to sources.Testifying in a separate drunken-driving case against a 26-year-old Taunton man in Quincy District Court on Nov. 24, Carney was asked by a defense attorney whether she faced any potential disciplinary action, according to the attorney and sources.
Though the brutality investigation was ongoing, Carney denied it, said attorney Ed Sharkansky and two sources with direct knowledge of the case and investigation.
Some of our local magistrates consistently accept guilty pleas to DUI's at the initial bond hearing, sometimes only hours after the arrest for DUI. I can understand accepting a guilty plea to public disorderly conduct or breach of peace, giving a fine or time served and letting the person go home, but DUI? To their credit, I don't believe that the Myrtle Beach municipal judges will take pleas to DUI at the bond hearings (correct me if I'm wrong, maybe I just haven't seen it), but it happens pretty regularly at the County.
Why is this a problem? Well, let's begin with the fact that to plead guilty to DUI, the defendant has to admit to the court that they are drunk. Before accepting a guilty plea, the judge needs to make sure of a number of things, such as whether the person understands that they have the right to an attorney, that they have the right to a jury trial, that they have the right to proof beyond a reasonable doubt, to cross examine witnesses, to call witnesses on their own behalf, to testify in their own defense, to not testify or make any statements at all, etc.
The judge has to make sure that the defendant understands that they are waiving all of these rights and that their waiver is knowing and voluntary. How can a waiver be knowing and voluntary if the defendant is intoxicated to the extent that it affected their ability to drive? One of the standard questions that should be asked during the plea colloquy is whether the defendant has taken any alcohol or drugs in the last 24 hours that would affect their ability to understand the proceedings. If the answer is no, well then they can't be admitting to drunk driving can they? And if the answer is yes, then the judge should not be accepting the guilty plea.
I can only assume that the reason DUI pleas are taken at the initial bond hearing is to expedite moving cases through the system. If a bond is set and a court date given, then that defendant might actually exercise his or her rights and ask for a jury trial, which will further clog up the system taking up time and resources. If the defendant contacts a defense attorney within 5 days after the plea, once they sober up, they might be able to get the case re-opened and if not, they might be able to appeal the plea. But, in doing so, they may have to admit that they were intoxicated at the time that the plea was taken, which in most cases would cause them problems when they try to fight the DUI (exceptions - someone else was driving, or the defendant was arrested at home in bed (believe it or not this happens)).
Besides the propriety of accepting any guilty plea from a person who is intoxicated, there is the fact that a DUI 1st offense is probably the most serious misdemeanor that there is under S.C. law. It involves jail time and/or a substantial fine, license suspension, mandatory substance abuse counseling, SR-22 insurance for 3 years, possible loss of job and many other collateral consequences. Without the advice of counsel, most defendants are not aware of all of the consequences of such a guilty plea, and any decision that involves a criminal record should not be made while under the influence to any degree. Hence the requirement that the waiver of rights be made knowingly and voluntarily and not while under the influence.
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.
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.
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 CorporationGold - $50,000+
Johnson & Johnson
Procter & Gamble
Anonymous
Outside the ClassroomSilver- $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 LLCBronze - $10,000+
Coca-Cola North America
Anonymous
Harvey Industries
Smart Start
Takata
American International Automobile Dealers
AnonymousSpecial 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.
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?
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.
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?
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.
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."
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.
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?
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.
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.
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.
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?
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.
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.
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?
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.
Often DUI arrests are initiated by other drivers who see someone swerve or are cut off in traffic and then dial 911 to report a drunk driver. Most of the time these people mean well, and sometimes they are right, but things are not always what they seem. Some people have a compulsion to get involved, an over-developed sense of civic duty if you will. By the time a case gets to trial, their account of what they saw sometimes has grown from what they initially told the officer.
A recent story in the Phoenix New Times illustrates several points. A man watching Shannon Wilcutt at a cafe thought she looked intoxicated, thought he saw her downing several drinks, then watched her drive off with a four year old child in the car. He called police and then followed her until the police arrived.
When the police arrived she was arrested and charged with 3 felonies - even though a subsequent breathalyzer showed her BAC was .02. The story illustrates that the DUI lay witness does not always see what they think they see: as it turns out she was drinking glasses of water and not wine, she had just had surgery to remove dentures, and she had taken one hydrocodone pill.
The story illustrates that the police are not always right. She was unable to perform the field sobriety tests to the officer's satisfaction, not because she was intoxicated, but because she was overweight, asthmatic, and had a herniated disc in her back. None of which affects your ability to drive, but all of which would affect your ability to perform physical exercises on the roadside. The officer noted that her speech was slurred, but remember that she had just had dental surgery.
Of course when all of this came to light, including a BAC of .02, the state's attorney fixed it and dropped the charges right? Not so - she was indicted for DUI, drug possession (hydrocodone?) and the equivalent of South Carolina's child endangerment law. Two years and $12,000.00 in legal fees later, the charges were dismissed.
The stories of Shannon Wilcutt, Diana Sifford, and Phil Cisneros that are told in the Phoenix New Times article illustrate how persons who are charged with driving under the influence are guilty until proven innocent, how the punishment does not always fit the crime, and how the fever to catch drunk drivers can profoundly affect the lives of ordinary people.
There are things that I read and hear from the get-tough-on-DUI crowd that just amaze me. For example, from George Spaulding's article yesterday in the Charleston Post and Courier:
"Many of us will continue the anti-DUI movement until first-time offenders are dealt with severely."
"The day when your car or truck decides whether you are sober enough to drive may not be as far off as it sounds."
Spaulding goes on to discuss a research program that intends to develop devices that would test the sobriety of every driver, and have them placed into every car, not just those convicted of drunk driving. The devices would prevent the car from running if sufficient alcohol is detected. Spaulding cites "MADD's successful efforts in many states in having drunken-driving interlock legislation passed into law."
Wonderful idea. I don't mind having devices placed into my car to monitor me 24 hours a day, do you? DUI and CDV are the two topics that seem to push otherwise rational people over the edge. We should also place videocameras in every home, with a live feed to the police station - this could potentially prevent incidents of domestic violence and various other crimes.
In Peoria, Illinois, they have announced a "no refusal" memorial day weekend. If you are charged with drunk driving and refuse the breathalyzer, "a county judge will order you to submit a medically authorized blood sample within an hour of your refusal." Never mind the Fifth Amendment right against self-incrimination, there is an exception for DUI.
From the prison planet forum:
Start roadside firing squads for DUI offendersI believe if someone is found to be DUI at a checkpoint they should be executed on the spot just like we kill the terrorists in Iraq. We need to get rid of all rights in the US so the fight against DUI terrorists can now include mobile roadside firing squads for violators.
I also want our government to mandate an implantable chip in everyone that will incapacitate you if you drink more than the legal limit. Even if you aren’t behind the wheel, this chip should automatically contact the local SWAT team so they can quickly dispose of you without wasting much time, gas or ammo.
C. Mao, Tyrannyville, USA
The DUI Exception to the Constitution, posted by Lawrence Taylor on his DUI blog in 2005, contains a persuasive and often cited speech about the state of our nation's drunk driving laws. When it comes to DUI's, there are a different set of rules and the Constitution does not always apply.
The Fourth Amendment says that police officers cannot stop and detain a person unless they have probable cause to believe the person has committed a criminal act. However, in Michigan State Police v. Sitz, the U.S. Supreme Court found that there is a DUI exception for roadblocks, allowing police to stop and detain vehicles with no probable cause whatsoever. On remand to the Court of Appeals of Michigan, however, the Court of Appeals found that these roadblocks were unconstitutional under their State Constitution.
If you watch television, you know that often police will read what is called Miranda rights to a person they are arresting. You have the right to an attorney, and the right to remain silent, for example. Any time a person is in custody, ie handcuffed on the side of the road or in a police car, Miranda requires that the officer inform the person of their basic constitutional rights before asking questions. If the Miranda rights are not given to the person, any statement they make will be excluded from trial. But in Berkemer v. McCarty, the U.S. Supreme Court found another DUI exception to the Constitution - essentially saying, "we don't know when Miranda is supposed to be given in DUI cases, but it is clearly some time later than in other cases." (from Lawrence Taylor). Even though an officer has no intention of allowing a motorist to leave, and every intention of arresting the motorist, he is not required to read Miranda rights during the roadside detention.
In South Carolina the officer must read the Miranda rights before the field sobriety tests are given. But, although the officer says, "you have the right to an attorney," you do not have the right to an attorney. Tell the officer you want to consult your attorney and see what response you get. Again, when you are asked to blow into the little black box, tell them that you would love to do so, but wish to exercise your right to consult your attorney. In South Carolina, you will be denied your right to an attorney at this most critical stage of a DUI proceeding, when you need to seek advice as to whether to submit to breath or blood tests, or seek an independent test.
The Fifth Amendment guarantees all of us the right not to incriminate ourselves - not only do we have this right, but if we exercise it, the prosecutor at trial cannot comment on our decision to exercise our constitutional right. Except in a DUI trial. In South Dakota v. Neville, the U.S. Supreme Court found a DUI exception to the Fifth Amendment - there is no right to refuse a breath test, and if you do refuse the breath test, the prosecutor can comment on it to the jury. (On remand to the State Supreme Court, South Dakota held that their State Constitution protected the right against self-incrimination, even if the U.S. Constitution no longer does.) Not only will the prosecutor be allowed to comment on your exercise of your right not to incriminate yourself, but you will be punished for it under South Carolina's implied consent laws.
Some states have a DUI exception to the Sixth Amendment right to trial by jury, believe it or not. If you are arrested for driving under the influence in New Jersey or Nevada your fate will be decided by a judge without the benefit of a jury of your peers.
There is a different set of rules when it comes to DUI cases. Over and again, DUI lawyers urge one another to be careful which cases they decide to take up on appeal, for fear that the appellate courts will be given another opportunity to take away more of our constitutional protections in the name of DUI prosecution, creating precedents that must be followed in future cases. As Taylor says, "rights that are lost in a DUI case today can be lost in any other case tomorrow."
The above observations on the DUI exception to the Constitution are all drawn from DUI lawyer Lawrence Taylor's 2005 blog entry, which I encourage everyone to read. He ends his piece by paraphrasing a famous quote from pre-war Germany:
"First they came for the drunks, but I was not a drunk, so I did not speak up . . ."
A Tucson Arizona City Court judge has suppressed alcohol breath test results in 49 cases, after CMI, manufacturer of the Intoxilizer 8000, refused to produce source codes.
This same battle has been raging for years across the country. In Florida, CMI refused to release the Intoxilizer source code after the courts ordered them to turn it over, and in some cases CMI was fined for failing to comply. The Florida legislature, prompted by prosecutors, responded by passing a law that states full disclosure in a DUI case does not involve the source code, only the test results and procedure followed. In New Jersey, the manufacturers of the Alcotest breath test were ordered to release the source code to defense experts, who identified serious defects in the software's operations. CMI was ordered to turn over the source code for the intoxilizer 5000MN in Minnesota last year. On the other side of the Atlantic, a Court in Ireland refused to order production of the Lion Laboratories Intoxiliser source code.
The Datamaster machine used in South Carolina, like the other machines above, is only as accurate as the software that operates it, and due process requires that defendants have the opportunity to examine these programs. The software for breath test machines tell the computer and all of its parts what to do before, during, and after the test. The defense has the right to examine and independently test the government's evidence, and this becomes particularly important when the government's key witness is a "black box" that cannot be cross-examined on the witness stand.
One unwarranted side effect of the recent focus on the South Carolina Highway Patrol has been the harassment of Senator Brad Hutto by the news media and others. The Greenville News in particular was pushing for an investigation into the revelation that 12 of 17 DUI tickets written by the same trooper to Senator Hutto's clients resulted in dismissals.
The only reason this even became an issue is because Hutto is a senator, and the media is playing "gotcha." The bottom line is that Brad Hutto is a decent defense attorney as well as a state legislator, and he is doing what all good defense attorneys do - winning cases. When there are viable defenses in a DUI case, the case can be dismissed. If the ticket is not outright dismissed for lack of evidence, it can be dismissed and then re-written as reckless driving or some other traffic violation, so as to avoid a trial. The only time a DUI should go to trial is when the State has a solid case.
Richard Walker, of the Times and Democrat, gives the first unbiased report on the issue that I've seen. Orangeburg Solicitor David Pascoe is not investigating the matter because there is no evidence of any criminal conduct. There is no evidence that Senator Hutto did anything inappropriate. Like any good DUI lawyer, it sounds like he is fighting for his clients and obtaining dismissals when he can. Give us a break.
South Carolina's revised driving under the influence bill was signed into law a few weeks ago, but it will not be effective until February 10, 2009. There are quite a few minor revisions, but the main changes are found in the penalties, which are now graduated based on the blood alcohol level.
Revised penalties under the new 56-5-2930:
First offense: $400.00 or 48 hours to 30 days in jail, or 48 hours community service.
If the blood alcohol concentration (BAC) is .10 to .15: $500.00 or 72 hours to 30 days in jail, or 72 hours community service.
If the BAC is .16 or greater: $1000.00 or 30 days to 90 days, or 30 days community service.
Second offense: $2100.00 to $5100.00 and 5 days to 1 year in prison.
BAC of .10 to .15: $2100.00 to $5100.00 and 30 days to 2 years in prison.
BAC of .16 or greater: $3500.00 to $6500.00 and 90 days to 3 years in prison.
Third offense: $3800.00 to $6300.00 and 60 days to 3 years in prison.
BAC of .10 to .15: $5000.00 to $7500.00 and 90 days to 4 years in prison.
BAC of .16 or more: $7500.00 to $10,000.00 and 6 months to 5 years in prison.
Fourth or subsequent offense: 1 year to 5 years in prison.
BAC of .10 to .15: 2 years to 6 years in prison.
BAC of .16 or more: 3 years to 7 years in prison.
The jury makes the determination of what the BAC was, following a guilty verdict. If the jury does not reach a unanimous decision regarding the BAC, but does find that the accused is guilty, then the sentence is based on the non-enhanced penalties.
Another major change in the DUI law will be the deletion of the requirement that Miranda rights be read to the accused at the breath-testing site. Miranda must still be read to the accused on the roadside video, but not at the station.
If you haven't heard, Senator Randy Scott was arrested and charged with driving under the influence last Saturday in Dorchester County. The irony of this DUI arrest coming the same week that the new get-tough-on-DUI bill was passed into law should not be lost on anyone. DUI lawyer Reese Joye of Charleston, S.C. has taken on Senator Scott's case.
If you believe the deputy's account in the incident report, the Senator was driving like a drunken fool, drifting across lanes and once almost running into a ditch. He failed field sobriety tests, had to lean on his vehicle for support, could not stand straight or walk a straight line, reeked of alcohol, had bloodshot eyes and "disheveled" clothing, bullied the deputies who were just trying to do their jobs, and admitted to drinking. It brings to mind images of Nick Nolte's famous DUI mug shot.
But when we look a bit more closely, several more disturbing facts come to light. Jack Kuenzie from wistv reports that the Datamaster given to Senator Scott gave a reading of 0. (I believe what actually happened here is that there was no result, as opposed to a result of 0) We learn that the Senator has a long standing feud with Dorchester County Sheriff Nash. The Senator, it turns out, is an amputee with a prosthetic leg, and he informed the deputy of this before he was asked to perform the field sobriety tests.
Continue reading "Senator Randy Scott's DUI arrest" »
