Driving under the influence is the crime that is generally charged when an individual is found to have been drinking and then operating a motor vehicle. However, the law in South Carolina can also cover a situation where a person’s ability to drive has been diminished or impaired as a result of substances other than alcohol. One should also remember that in South Carolina, this crime generally, except in certain specific circumstances, requires the alleged illegal conduct to be witnessed by the police.
There are two laws on the books in South Carolina dealing with Driving Under the Influence. The first makes it unlawful to operate a motor vehicle while the ability to operate the vehicle is materially and appreciably impaired. The second makes it unlawful to drive with a blood alcohol level greater than .08 or eight one hundredths of one percent.
For many years there was only one law on the books dealing with DUI. This law made it illegal to operate a vehicle under the influence. When this law was in effect, people considered the legal blood alcohol limit in SC to be .10; however, this was not necessarily true. Under the initial law, the language of the statue read that if one’s ability to operate a motor vehicle was “materially and appreciably impaired” they were guilty of driving under the influence. Under the law at the time, the blood alcohol test was but one piece of the puzzle – generally. If a person’s result was under .05, they were presumed not to be driving under the influence. If the blood alcohol level was between .05 and .10, the person could be charged with driving under the influence, but the result of the test was not a conclusive presumption of the person violating the statute. If the result was over .10, the person was presumed to be driving under the influence. This essentially meant that a person could have been charged with DUI with a blood alcohol as low as .051.
Then the second law was passed several years back. This new law made it illegal to operate a motor vehicle with a blood alcohol level of greater than .08, effectively making it illegal to operate a vehicle with the increased alcohol level regardless of one’s ability to operate the vehicle. The way the current law is worded, a person could be arrested under the first charge and if a blood alcohol test was performed within two hours, then they could be prosecuted under the newer law. It is interesting to note that while many police agencies across the country have their officers carry in car breath test devises, South Carolina does not.
Under first law, whether a person is driving under the influence is a very subjective law with much of the basis for the arrest being drawn from observations of the arresting officer. It is common for police who make arrests under this law to note that the individual they arrested had been operating their vehicle in a reckless manner, often weaving or disobeying traffic laws. It is frequently reported that the individuals smell of alcohol and performed poorly on field sobriety tests.
For arrests under the first law it is not uncommon for the initial arrest to be made under the first law then the prosecution changed to the second at a later date. To do this, the State must inform the Defendant of their intent to prosecute under this newer law no later than 14 days before trial. The second law also addresses a number of challenges or defenses a Defendant can raise at trial related to the validity of the arrest, the collection of breath samples and other such evidence such as video tapes of the person’s driving. In fact, at trial, a person is even entitled to have the jury instructed that all factors of the arrest and incident can be considered when they are determining the Defendant’s guilt or innocence. As well, arrests under this section cannot be made at road blocks or driver license checks.
At every DUI arrest, an officer will perform field sobriety tests. These are the tests where a person is instructed to stand on one foot and touch their nose or where they are required to say the alphabet in reverse order. Most of these tests are difficult enough for a person in the daylight without the added stress of performing them under the observation of a police officer. There are also no right answers to these tests. A person’s performance is completely determined by the subjective standards of the police officer administering them. This means that three different officers could watch an individual and you could get three different opinions as to how a person did on the tests. In short, all these tests do is provide additional evidence for the police to later use at trial. The tests are designed to be failed and if you don’t take the test, then the police cannot spin your performance to harm you at trial. Yes, the police, when asked at trial will say you didn’t do them and the prosecutor may argue that only a guilty person would refuse the tests, but your attorney can offer arguments to counter this. Given the choice of having to explain a person didn’t the test or explaining why they fell over while saying the alphabet in reverse, most would rather explain why they didn’t take the test.
Another critical part of the DUI process is the video tape. Almost all police vehicles in South Carolina have video cameras installed to record, among other things, DUI stops. The police officers also have microphones on their body so all sounds are recorded. If a person is stopped, they should be careful to remember that from the moment the blue lights come on the camera and sound are rolling and all that is said and done are recorded. Exercise care in doing or saying anything that you wouldn’t want a jury to see. In short, the video tape of the stop and the arrest can be your best friend or worst enemy.
Perhaps the most crucial part of the DUI process is the breath test. In South Carolina, the test is called a DataMaster test. The DataMaster is a devise into which you blow your breath for a period of time – usually 8 uninterrupted seconds. Then, based upon this sample, the machine returns your blood alcohol concentration. This report will be the basis of the state’s prosecution at the DUI trial. There are a number of very specific procedural points that much be performed by law enforcement to make the test valid. Some of these are an internal test of the machine prior to the test, an observation of the Defendant for a period of 20 minutes prior to the test, an inspection of the Defendant’s mouth for foreign objects and advising the Defendant of the possible consequences of the test and their right to refuse the test. If any of these requirements are not met, then the test can be invalidated. All of the DataMaster machines are also linked throughout the state with the State Law Enforcement Division being responsible for monitoring the devises. It is also possible to obtain performance and maintenance records for all of the machines in South Carolina through the agency website.
In South Carolina, when you are issued a driver’s license, you give your implied consent to have this DataMaster test administered. As a result of this, the consequences of this test, if not in the Defendant’s favor, can be dire. If a person returns a blood alcohol level of more than .15 his privilege to drive must be suspended for a period of 30 days. If the person refuses to take the test, his privilege to drive must be suspended for a period of 90 days. However, the Department of Motor Vehicles may issue a restricted license to allow for travel to work or school. To have a regular driver’s license reinstated, certain administrative measures must be followed. It is extremely important to understand that any penalties resulting from a DataMaster test are completely separate and distinct for penalties that may result from being found guilty or pleading guilty to an underlying charge of driving under the influence or driving with an illegal alcohol concentration.
If a person is found guilty or enters a plea of guilty to either the driving under the influence charge or driving with an illegal alcohol concentration, certain minimum penalties must be imposed by the Court. There are several levels of punishment, first through fourth offense. For violations beyond the fourth offense, the penalties are the same. All penalties require jail time; however for first and second offenses, the minimum jail times can be waived in lieu of community service, but the minimum times can not be waived completely. In addition to potential jail time, the fines can be quite substantial. As well, any plea or conviction to either of the DUI laws in South Carolina will result in the loss of your license for a period of time. However, perhaps the two most costly parts of a DUI conviction or plea are, first, the requirement of special, or SR-22, insurance which is required if you have a DUI on your record. This insurance varies in price from agency to agency, but is quite expensive. In addition to all of this, if you get a DUI, you will have to hire an attorney and they are not inexpensive.
Many people feel that they can “beat” a DUI charge. It is true that everyday people ride the roads while under the influence of alcohol and don’t get caught. Alcohol boosts a person’s confidence, so when a person becomes intoxicated, they often feel they can drive at an acceptable level; however, reaction times are slowed and response times lag. Some people have been lucky for many years and have gotten behind the wheel of an automobile while under the influence and made it where ever they were going; however, if you continue to tempt fate, ultimately, it will catch up with you and it is no fun to wake up with a hangover in a cramped and smelly jail cell.
An attorney will be absolutely necessary if you are charged with a DUI; however, as pointed out above, an attorney can be extremely expensive. If you are charged with DUI, a competent DUI attorney will be a wise investment. As with any other type of attorney, you want to make sure that you hire an attorney with extensive experience in not only criminal law, but specifically DUI law. You want an attorney who knows the prosecutors and knows the police officers. The attorney will review your case and make sure that the police followed the required procedure from the moment they initiated contact with you through the entire process. Police make mistakes and you should not be convicted of a crime if the police have not followed procedure or if certain rights have been violated. It is not unusual for DUI charges to be reduced to a lesser offense, but this is considered on a case by case basis and a person should not feel they can go out and drive under the influence then pay an attorney to get them off. If you do find yourself on the wrong side of a DUI stop, remember that everything you do and say will be carefully observed by a police officer, that while trained in DUI investigations, may be very young and inexperienced as police officers. Be careful what you say and what you do – the camera will be rolling. Be polite, be courteous, but don’t say more than is necessary.
This article is not offered as, nor is it to be construed, as legal advice, nor does it create any relationship, attorney/client or other, between the author and the reader. To obtain any legal advice, consult an attorney licensed to practice law in your state.