South Carolina is the Garden of Eden when it comes to Driving Under the Influence laws. The serpent, however, is coming. This was part of the message delivered by Lawrence Taylor yesterday at the SCACDL DUI seminar in Columbia. I don’t think any of the citizens arrested for DUI in SC would agree with the first part and I doubt most would care about the second.
Mr. Taylor was speaking of course, about the DUI exception to the constitution. This fit in quite well with our courts’ interpretation of the constitution when it comes to DUI cases. That is, there are two categories of criminal law: DUI and all the others.
If you are charged with murder, you most certainly are entitled to the constitutional protections of the Fourth, Fifth and Sixth Amendments. If you are charged with DUI, those amendments probably don’t apply to you in most states.
In most states the police can stop you without probable cause just to see if you have been drinking. There is no Miranda requirement and you do not have the right to an attorney. In some states you do not have the right to refuse the breathalyzer test and in some, the police will hold you down and draw your blood right there on the side of the road. In a few states you do not have the right to a jury trial. This is scary.
By comparison, SC is the ideal place for protection when charged with DUI. We were the last state to lower the blood alcohol level to .08 in DUI cases. You still have a few constitutional rights left and you do have the right to a trial by jury.
The times, they are a changing. The serpent is coming. SC passed a comprehensive DUI law in February of this year. If convicted, the punishment will now depend on the datamaster results. There is mandatory jail time based on the results from a machine. What if the machine is not reliable? Look here to see why breathalyzer machines are not accurate.
Hopefully South Carolina will not follow the other states and do away with our remaining constitutional rights in these cases. Once you whittle away a fundamental concept in the name of one cause, it becomes easier to do away with it for all other causes.
We know the power that lobbyists wield so it may just be a matter of time before we lose the entire constitution in DUI cases. If they can’t change the law through the legislature – they have, and they will – they can change public opinion about the law. Thanks to Bobby Frederick for pointing out the following.
Right now there are organizations acting together with the Highway Patrol and others to change the public’s perception of the law. They have launched a media blitz to convince the public that it is illegal to drink and drive. That is obviously not the law in South Carolina.
The most significant thing I heard from Mr. Taylor is that he likes to think he wears the white hat. He does and for two reasons. The first reason is that the DUI defense lawyer looks for the truth. He looks for the truthful blood alcohol concentration at the time the defendant was driving. The second reason is that he is trying to protect and preserve the constitution. Not just for the DUI defendant but for every defendant. Not just for the client, but for everyone.