Category Archives: DUI/DWI

Excellent Editorial on DUI

I recently read the following editorial on Lawrence Taylor’s DUI Blog.

Protect innocent while prosecuting drunk driving

Jackson, MS.  Aug. 31 – In 2010, there were 231 Mississippi alcohol related fatalities, a disturbing number. We don’t really know if alcohol caused these accidents or not, but we do know one of the drivers was drinking.

For the one-third of Americans who don’t drink, the legality of drinking and driving must seem like an abomination. Indeed, alcohol consumption even without a two-ton vehicle causes untold wreckage of lives and human misery.

But two-thirds of Americans find moderate alcohol consumption a very pleasant aspect of life. It enhances conviviality, allows one to relax after a hard week’s work and is good for your health. Moderate alcohol consumption can reduce the risk of heart disease and senility…

The temperance battle has been one of the great social battles of our country. We tried to ban alcohol, but failed. Now we keep an uneasy social truce over the liquid drug.

The American love-hate contradiction over alcohol couldn’t be clearer than in our DUI laws. Drinking and driving is legal – but only up to a point.

The American Medical Association, at the request of the Department of Transportation, originally deemed impaired driving to occur at a .15 blood alcohol level. Today, half that level – .08 – is considered impaired and illegal. The human body hasn’t changed during that time, but Mothers Against Drunk Driving has since become a powerful political force that no politician dares to question. Driving While Intoxicated has become Driving Under the Influence. The range of acceptable drinking and driving is much more narrow.

Meanwhile, there were 33,153 Mississippi DUI arrests last year, an astounding number. If DUIs were randomly distributed, every driver in the state would get at least one during his lifetime.

A Colorado study showed that 20 percent of those arrested for DUIs had legal blood alcohol levels. The problem is that residual alcohol in your mouth can distort the results of the unreliable portable breathalyzers police often use to make an arrest.

Applying the Colorado study to Mississippi, 6,500 innocent Mississippians are arrested for DUI each year. Many lack the knowledge or money to fight the charge and just plead guilty.

For the innocent, the personal cost of an undeserved DUI is immense: Lost reputations, job opportunities and the 90-day license suspensions. Car insurance rates skyrocket. A DUI often ends up costing $15,000.

If police followed the rules, they would never give a breath test without waiting for at least 20 minutes. But Mississippi police are not that patient, especially when quotas need to be met and $30 million in fines is on the line.

Police often administer breath tests without probable cause: red eyes, the smell of alcohol, weaving within your lane, a bad taillight, making a wide turn, and other vague and arbitrary reasons are often used by police as probable cause, even though they don’t stand up to judicial scrutiny.

Police are routinely asking, “Have you been drinking?” even though drinking is a legal activity. If you answer yes, count on being tested.

The police need to concentrate on drivers displaying clearly erratic driving, slurred speech and inability to walk straight – these are the behaviors on which genuine probable cause should be based. These are the people who are a danger on the road.

Then there is the infamous “sobriety field test” where the police ask you to do various acrobatic stunts. Studies show perfectly sober people fail this test half the time.

In its eagerness to battle drunk driving, the U.S. Supreme Court has carved out a special place for DUI enforcement, suspending many of the typical civil rights protections afforded by the Constitution.

The clearest case of this is the road block, where drivers are detained for no probable cause. Many legal experts believe road blocks violate the Fourth Amendment of the U.S. Constitution, which prohibits unreasonable search and seizure. In allowing road blocks for DUIs, the U.S. Supreme Court overruled several state supreme courts, which found them to violate the rights embodied in state constitutions…

Current Mississippi law gives drivers the right to a blood test, but the statute is watered down and police ignore it. Police should be required to inform drivers that a more accurate test is available. Then police should be required to assist the driver in getting a blood test if they so choose. Any emergency room can do it. The more accurate blood test would further convict the guilty, but it would save thousands of innocent people from getting a huge blight on their record.

Breath samples can be saved for later verification by an independent lab. The cost is about five dollars. But under Mississippi law, the police do not have to save the samples. In essence, they are allowed to destroy the very evidence used to convict.

Like any profession, there are good police and bad police. In this age of smart phones, it is simple to audio or video record your interaction with police. Incredibly, dozens of American citizens have been arrested for recording their encounters with police based on outdated eavesdropping laws. The Legislature needs to change this. Any citizen should have the right to record his interaction with police to ensure proper adherence to the law.

Research has shown that law-abiding citizens who go out to dinner on Saturday night and have wine with dinner are not the cause of alcohol related traffic deaths. The deaths are caused by chronic alcoholic repeat offenders. These are the dangerous people who are weaving down the road and running red lights. The police need to spend their time watching for the true menace and not randomly stopping the two-thirds of Americans who like wine with dinner…

With 33,000 arrests each year, it’s high time the state Legislature passed some basic measures to protect its law-abiding citizens from false DUI arrest. With fewer breath tests to do on law-abiding drivers, maybe the police could keep a better lookout for the real drunks swerving down the road.

It doesn’t get much clearer than that. As Mr. Taylor says, there is a new awakening in America that perhaps MADD’s prohibitionist agenda has gone too far.

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The Root Cause of DUI Law’s Failure

According to an article in the local paper today, the DUI laws are a failure.

Despite decades of awareness campaigns about the public health hazard impaired driving poses, and all of the tough rhetoric about South Carolina’s zero tolerance for drunk driving, the DUI conviction rate here remains low.

That could be considered a success, not a failure.   Read the above quote again. It definitely should be considered a success.

You see, it all depends on what you are looking for. Either you want less people driving drunk on the roads or you want more people convicted of driving drunk on the roads. I don’t see how you could possibly want both.

But the article doesn’t address that little paradox. It would rather focus on grabbing your attention with a headline stating that the DUI laws are flawed. The article would rather generate a little controversy by implying that the laws are too complicated for the police or assistant prosecutors to figure out so that cases can be successfully prosecuted. That is simply not the case.

The DUI laws are complex and they should be. DUI is the one law that someone can be charged with when we don’t even know if a law was violated. Every other criminal charge begins when we know a crime was committed. We may not know who did it, but we know it was done. Not so with DUI.

If you take a close look at the cases made for driving under the influence, you will see that the majority of them are made by the same police officers and highway patrolmen. Over and over again. It’s what they do and they are good at it. The same can be said about the assistant solicitors prosecuting these cases.

The article goes on to cite numbers regarding the unsuccessful prosecution of DUI and DUAC cases. If you really want to talk numbers that matter, here is a quote in the article from Solicitor Greg Hembree:

The highway patrol has put a lot of emphasis on making a lot of cases and generating a lot of numbers,” he said. “That has led to some low-quality cases.

It’s not the DUI laws.

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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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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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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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Conway Police Increase DUI Enforcement

The title of this post is the title to an article in the Sun News Breaking News.

Because police say alcohol is a factor in fatal crashes during the July 4th holiday, Conway officers plan to be aggressive in their patrols for DUI offenders, according to authorities.

It is interesting to note that the article does not mention roadblocks. We know roadblocks are not an effective method of DUI detection. They are more of a show of force type deterrent.

Aggressive patrols? I can’t imagine the Conway Police Department taking a more aggressive role in patrolling for DUI’s. They already have received major recognition in that category.

DUI detection is a good thing. No one wants dangerous drivers on the roads. But I hope no one wants an innocent person arrested either.

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Super DUI Cops

The S.C. Department of Public Safety held its 5th Annual DUI Enforcement Recognition Ceremony in Columbia today according to SC Now. Congratulations to the Conway Police Department for its award for Agency of the Year in the 51-100 officer category. Several local officers received individual awards.

Officer of the Year: Conway Police Senior Master Patrol Officer Josh Scott.

Trooper of the Year: Highway Patrol Trooper First Class Douglas J. Sarvis, Horry County.

The following received awards for DUI arrests:

Bronze Award: Conway Police Patrol Officer Justin Strickland for 20 DUI arrests

Gold category awards for 50 or more DUI arrests were given to Conway Police Senior Master Patrol Officers Chad Causey and Josh Scott for 60 and 74 DUI arrests, respectively; Horry County Police Lance Cpl. Jack Johnson Jr. for 57 DUI arrests; S.C. Highway Patrol Troop 5 Trooper 1st Class Douglas J. Sarvis for 167 DUI arrests; and Myrtle Beach Police Patrolman 1st Class Pete Schmidt for 139 DUI arrests.

Congratulations gentlemen, that’s a lot of arrests!

Speaking of a lot of arrests, S.C. Highway Patrol Col. Kenny Lancaster said at the ceremony that DUI arrests are up about 30% in the last year. One way to get those numbers up is to increase roadblocks:

During the past two weekends, the highway patrol hosted a DUI blitz called “Operation Downtown,” which posted check-points on main roadways exiting Columbia, Charleston, and Greenville. Although the checkpoints were only operated for a 2-hour period that past two Saturday nights, nearly 100 DUI arrests were made.

Now, that’s a lot of DUI arrests. 100 in 2 hours. That’s almost one arrest per minute.  Remember though, it’s only arrests – not convictions.

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