Monthly Archives: December 2010

December 22, 2010 · 11:58 pm

DUI Blitz

Nothing says Christmas like the South Carolina Highway Patrol. The season is here and so is the DUI blitz: Let the propaganda begin.

As part of the  DUI blitz, the South Carolina Department of Public Safety released a series of ads to get the word out about how dangerous it is to drink and drive.

The South Carolina Highway Patrol released the following preliminary numbers “detailing their progress” in driving under the influence arrests:

  • Horry County – 22
  • Darlington – 6
  • Dillon – 8
  • Florence – 20
  • Marlboro – 2
  • Marion – 0
  • Georgetown – 3

That’s progress. In fact, the article tells us that DUI arrests have increased 72 percent since 2006. Remember though that’s arrests, not convictions.

No one wants drunk drivers on the road. I get it; it’s dangerous. The folks behind the media campaigns have good intentions. The thought process is simply to blitz the media with ads and hopefully no one will drive drunk. Get the message out on billboards, TV and radio. Rinse and repeat. Unfortunately, the statistics show that it’s not going to work.

It happens with some of the best commercials in the advertising business. Either the point is not communicated effectively or maybe the audience just doesn’t get it. That’s show business. It’s not hard to remember an example of an ad campaign that failed. It’s probably equally as easy to recall one that succeeded wildly. Every now and again there is an ad campaign that seems to fail, yet in some subtle way hits it out of the park.

The Highway Patrol ads are catchy. How can you forget Sober or Slammer, Buzzed driving is Drunk driving, or my favorite, Zero Tolerance? I mean it, these are great sounding slogans. Yet still they fail. We know they fail because the police are making more and more DUI arrests in spite of the ads.

Could it be that may be these ads are hitting it out of the park? I think they are and I see two problems with them. First, the ads are wrong on the law. Second, the ads tend to increase the number of arrests.

The slogans sound good but they misstate the law. In South Carolina it is not against the law to drink alcohol and then drive.  Because of these commercials there are a lot of people (potential jurors?) who think that having one drink and getting behind the wheel is a crime. It is not.

The second problem with these slogans is that they lead to additional arrests. Despite the purpose of the campaign (reduce drunk driving), law enforcement will consider it a success if they make a high number of DUI arrests.

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December 12, 2010 · 8:42 pm

Another Traffic Stop, Another Consent to Search, Another Reversal

An Arkansas Trooper pulled Lesa Menne over for speeding. After asking her for her driver’s license information, the trooper returned to his car and called for a drug dog. He wrote her a warning ticket. But before he handed it to her, he asked if he could search her car. She said she refused the request; he said she consented.

The trooper then searched her car and found drug paraphernalia and marijuana. The trooper also found methamphetamine in Menne’s purse.

The Arkansas Court of Appeals reversed her conviction in Menne v. State.

Therefore, based on the totality of the circumstances, we hold that the trial court committed error in denying Menne’s motion to suppress evidence. The legitimate purpose of the traffic stop was complete nine-and-a-half minutes after the initial stop when Trooper Roark, by his own testimony, had obtained, verified, and returned Menne’s documentation to her, he had completed his speeding investigation, and he had written the warning citation. Any consent given after that point by Menne was invalid, and the search was illegal.

H/T: John Wesley Hall, Jr. Note: Finally, cases are starting to recognize the deliberate stall in traffic stops.

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· 12:46 pm

Anthony Meo – 43rd Best Player

Congratulations to Coastal Carolina’s Ace Anthony Meo. The junior RHP was selected by the College Baseball Daily as the number 43 player in the top 100 countdown of the top college baseball players in the nation.

In his freshman year, Meo started 13 games and went 9-2 with a 2.93 ERA. He broke the Coastal Carolina record for most wins by a freshman and was named a Freshman All American.

His sophomore year was better.

While he had a great Freshman year, he improved on his numbers even more, going 13-2 with a 2.61 ERA in 16 starts, striking out 94 batters in 96.2 innings while improving his WHIP from 1.29 to 1.20.  He held batters to a .230 batting average in 2010.

He was the Big South Pitcher of the Year. He was also a NCBWA First Team All American.

Meo should have an even better junior year. He played his summer ball with the Cape Cod Baseball League and went 2-1 with a 3.12 ERA and a 1.09 WHIP.

I would not be surprised if he is named the Big South Preseason Pitcher of the Year.

Meo is the fourth Chanticleer named in the top 100 countdown. He joins Scott Woodward, Daniel Bowman and Tommy La Stella. Not bad company, but I would obviously like to see more Coastal players on the list.

Last year Coastal Carolina had the best overall 1 through 9 in the country. Of those nine players, only two made the top 100 preseason countdown. That was a disappointment, especially the omission of Rico Noel. If you are reading this, then you probably know that Noel was named the Big South Preseason Player of the Year.  He went on to have a great season and is now playing professional baseball.

I will keep reading the list. Maybe we will see another Chanticleer there; maybe not. I can think of one who absolutely deserves to be on the list. I also know that he would rather go to Omaha than receive any individual honors.

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December 11, 2010 · 1:44 pm

DUI on a Moped?

I read today that a Horry County man has been wrongfully convicted of driving under the influence. That’s not news; it happens all the time. What made it newsworthy is that the man was driving a moped at the time he was stopped.

Johnny Shell went to jail, faces a fine, and has to enroll in an alcohol and drug program, even though there’s no law on the books against driving drunk on a moped.

Shell went on to court without a lawyer and pled guilty, only to find out later from a News Channel 15 report that the charge of DUI wasn’t the right one.

Can you get a DUI while driving a moped? Let’s take a look at the law. Remember it’s always good to RTFM. Here is the relevant part of the law on driving under the influence as set forth in Section 56-5-2930:

It is unlawful for a person to drive a motor vehicle within this State while under the influence of alcohol to the extent that the person’s faculties to drive a motor vehicle are materially and appreciably impaired…

“Motor vehicle” is defined in Section 56-5-130 as:

Every vehicle which is self-propelled, except mopeds, and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails, is a “motor vehicle”.

I think we have an answer. It’s not against the DUI law to drive a moped while impaired. I don’t think that is what the legislature intended, but that is the way the laws are written.

Speaking of writing laws, I also read that two members of the legislature will prefile a bill that should fix the problem.

In a press conference in Spartanburg Tuesday, State Rep. Derham Cole (R-Spartanburg) and Rep. Eddie Tallon (R-Spartanburg) announced they would prefile a bill that allows moped drivers to be charged with driving under the influence. Under existing law, a moped doesn’t currently meet the state’s definition of a motor vehicle.

There are a couple of questions left unanswered by the News15 report. If DUI doesn’t apply to mopeds, how is it that a police officer made this arrest? More importantly, how is it that a judge took the defendant’s guilty plea?

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December 8, 2010 · 11:41 pm

To the SCDMV: You got to be in it to win it

Earlier this week, the South Carolina Supreme Court dismissed an appeal filed by the Department of Motor Vehicles. Turns out that the DMV was not a party to the case.

Don C. Gillespie petitioned the circuit court for a driver’s license in 2008. He served the Solicitor’s Office pursuant to statute. The state did not object and the circuit court granted the petition. Gillespie then served the order on the DMV.

Instead of filing a Motion to Intervene, the DMV filed post-trial motions for the court to reconsider. The circuit court denied the motions and the appeal followed.

The Court made the following observations before dismissing the appeal.

Although not a party, SCDMV filed a Notice of Appeal and attempted to portray itself as a party.  In its notice, SCDMV unilaterally and without court authorization changed the caption from Don C. Gillespie v. State of South Carolina to Don C. Gillespie v. South Carolina Department of Motor Vehicles.

The Court then went on to dismiss the appeal based on the well-known rule of appellate procedure that only an aggrieved party may appeal.

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December 7, 2010 · 2:46 am

Tommy La Stella – 47th Best Player

Congratulations to Tommy La Stella for his selection as the number 47 player in the top 100 countdown of the top college baseball players in the nation by the College Baseball Daily.

La Stella played in 64 games for the Chanticleers in 2010, leading the team in batting average (.378) and hits (93), with 14 doubles, 2 triples, 14 homeruns and 66 RBI.  Out of all those stats, possibly most impressive for the Chanticleers cleanup hitter was the fact that he only struck out 15 times in 246 ABs.

La Stella is a junior infielder and Coastal expects another great season from him. He is the third Chanticleer selected in the top 100 this year. Scott Woodward and Daniel Bowman were named earlier. I have a pretty good feeling that we will have at least one more player on the list before it’s over.

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December 2, 2010 · 1:01 am

Funny the Things You Learn When You RTFM

I “borrowed” the title of this post from one of Mark Bennett’s old ones. The two posts don’t have anything to do with each other; I just thought the title went well with this one. It is funny sometimes what we learn when we read the manual, especially if it’s a forty year old traffic statute.

A driver charged with passing a stopped school bus was found not guilty by a Virginia judge according to the Washington Post.  According to the article, John G. Mendez, zipped past a school bus, while it was picking up children with its lights flashing and stop sign extended. That’s against the law in Virginia, and in every other state.

The judge found Mendez not guilty based on the poorly drafted statute, which states:

A person is guilty of reckless driving who fails to stop, when approaching from any direction, any school bus which is stopped on any highway, private road or school driveway for the purpose of taking on or discharging children.

The statute has been on the books for forty years since it was amended. The amendment omitted the word “at” and that, according to the defendant’s lawyer, changed the statute’s meaning.  The previous version of the statute read: …who fails to stop at, when approaching from any direction, any school bus … See the difference? The judge did. Referring to the defendant:

He can only be guilty if he failed to stop any school bus.  And there’s no evidence he did.

This article may be funny to some and to others it may be another reason to hate all lawyers. To me it’s another example of why we trial lawyers need to read the manual – every time, every case.

H/T: Legal Writing Prof Blog

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