Mar 11, 2012 | DUI & DWI, Uncategorized
Here is the first issue that comes up in every new DWI case – “how can I get my license back?” “I have to have my license to get to work.” We understand, and our firm will help you as part of our DWI representation. The article below provides an excellent overview of what is required and what to expect. The DWI trial attorneys of Reeves, Aiken & Hightower, LLP, applaud First Step Services for its easy to read summary and efforts in helping those individuals charged with DWI in NC. Although based in the Raleigh area for now, we hope they will soon expand into our Charlotte market.
For more information about our firm and what we can do to help you, please call us at 704-499-9000 for a private consultation with one of our DWI attorneys. Or, visit our website at www.rjrlaw.com.
Here is the outstanding post:
A North Carolina DWI Assessment is required of everyone who is convicted of Driving While Impaired in the state of North Carolina. You cannot receive a Limited Driving Privilege without a DWI Assessment. DWI assessments and groups can only be conducted by facilities licensed by the state of North Carolina. Each of these licensed facilities must have a North Carolina DWI Provider Code. Getting an assessment and treatment by a substance abuse professional does not necessarily mean that professional has a North Carolina Provider DWI license.
First Step Services, LLC is fully licensed by NC DWI Services and will assist you with your assessment in a professional, confidential and timely manner. First Step will often complete an assessment the day you call to request an appointment.
Why Get Your DWI Assessment Done as Soon as Possible?
In NC, a DWI Assessment is required prior to receiving a Limited Driving Privilege.
Shorten the period of time you can’t drive during your “Civil Revocation.”
Complete the North Carolina Division of Motor Vehicles DWI Assessment and Treatment requirements.
A DWI Assessment is a Mitigating Factor during your trial and can reduce the level of punishment, possibly helping avoid active jail time.
Know in advance where you stand with your DWI Substance Abuse requirements.
If you have your DWI Assessment at First Step, we will bill your insurance for any counseling that may be required, saving you money. First Step is one of the few companies that will bill your health insurance for DWI groups. Your cost at First Step will be much lower than at agencies that don’t accept insurance. Choose First Step Services and save.
Don’t be misled by mailed or other notices that say you must go to any particular agency for a DWI assessment. You can choose ANY licensed NC DWI agency you like.
A DWI Assessment is an alcohol abuse and drug abuse assessment consisting of a clinical interview and a structured DWI assessment questionnaire to determine if a person has a problem with alcohol or drugs. There are a few different assessment types that are used by different NC DWI programs.
Possible outcomes of the DWI assessment are alcohol or drug dependence, alcohol or drug abuse, or no alcohol or drug “handicap.” The DWI assessment and related paperwork take approximately one hour and a half.
Allow at least 1 1/2 hours for the DWI assessment when you schedule your appointment with First Step. You can leave with all the paperwork you need for your attorney, court or the NC Division of Motor Vehicles.
PROGRAM PLACEMENT CRITERIA
(From the NC DHHS DWI Services and Wake County Court Services Homepages)
The DWI Assessment results will assign you to one of the following levels of group or class.
There are five placement levels for DWI substance abuse treatment in North Carolina. There are a minimum number of contact hours and minimum lengths of time a person must be involved. These are now codified into a new section 122C-142.1 of the General Statutes: “Substance abuse services for those convicted of driving while impaired, or driving after drinking by person under 21.”
State Rules require that a Substance Abuse assessment is valid for only 6 months. Treatment or ADETS must be started prior to 6 months from the date of the assessment or a whole new assessment will be required at a full cost of $100.
Level I- DWI Education (Alcohol & Drug Education Traffic School):
First DUI/DWI conviction (Total lifetime)
Arrest BAC of .14 or less
Did not refuse breath test
Has no substance abuse diagnosis as determined by a thorough alcohol and drug use evaluation
Must be a minimum of sixteen contact hours completed in no less than 5 sessions.
Level II-DWI Short-term Treatment:
More than 1 DUI/DWI lifetime
Refused breath test
BAC of .15 or greater
DSM-IV diagnosis of Substance Abuse
Meets Level I ASAM (American Society of Addictions Medicine) program placement criteria.
A minimum of 20 but less than 40 contact hours lasting a minimum of 30 days
Level III-DWI Intermediate Level Treatment:
Meets criteria for DSM-IV Substance Dependence Diagnosis
Meets Level I ASAM program placement criteria
Minimum of 40 but less than 90 contact hours, minimum of 60 days duration
Level IV-Intensive Outpatient Treatment:
DSM-IV diagnosis of Substance Dependence, moderate to severe
Meets Level II ASAM program placement criteria
A minimum of 90 contact hours with a minimum duration of 90 days
According to ASAM, to be considered intensive outpatient, this requires at least 3 sessions and 9 hours per week in treatment. This program may be preceded by a brief inpatient stay for detoxification or stabilization of a medical or psychiatric condition.
Level V-Inpatient/Residential Treatment:
DSM-IV diagnosis of Substance Dependence, severe
Meets Level III or IV program placement criteria
Upon discharge from inpatient treatment, a person has to enroll in an approved continuing care or outpatient program to meet the 90-day time frame. There should not be any significant period of time between inpatient or residential treatment and beginning the 90 days follow up. There should also be no resumption of alcohol or drug use, even in small amounts prior to the 90 day follow up. If there is more than a couple of weeks between residential treatment and beginning the follow up or if there has been any substance use, the DWI client will likely have to begin a new treatment program.
NC law allows up to 15 days credit for inpatient treatment in place of mandatory active sentence. However, an inpatient treatment facility can admit a person to inpatient treatment, ONLY, if that person meets the ASAM criteria for this level of treatment. This is true, even if the person wants to pay for this in full out of his own pocket.
Failure to follow the ASAM criteria can result in a facility’s losing its Medicare or Medicaid accreditation and puts in jeopardy payments by private insurers. Admission to inpatient treatment is based solely on medical or psychiatric necessity, not on a legal requirement or personal preference! (From the DHHS DWI Services)
(ASAM refers to the criteria established by the American Society of Addictive Medicine.)
We must consider the following during the assessment:
• A copy of your driving record from the DMV. The North Carolina Certified Driving Record costs $11.00. It must be signed or stamped by the NC DMV. If you can’t get one, First Step will order one online for you. If we can’t get it that way, we will go to the DMV for you.
• Verification of your Breathalyzer reading. You will probably have this with your ticket. This can also be obtained from your attorney, the Clerk of Court or possibly from the North Carolina DMV.
• Fee payment of $100 for the assessment in cash or money order. If writing a check, you will have to wait 14 days for the check to clear to receive results.
• Come to the assessment alcohol and drug free. If you are “high” or have alcohol on your breath, you will be turned away and will be charged for the time the counselor reserved for your assessment.
A NC DWI Substance Abuse Assessment is required by law for all those convicted of DWI in North Carolina. Getting a DWI assessment prior to court is a mitigating factor at the trial and could lessen the level of punishment you receive.
Education or substance abuse treatment is required of everyone convicted of Driving Wile Impaired. Depending on the level recommended by the assessment, classes or treatment may last from 1 week to 90 days or more.
If you have your DWI Assessment at First Step, we will bill your insurance for any counseling that may be required, saving you money. First Step is one of the few companies that will bill your health insurance for DWI groups. Your cost at First Step will be much lower than at agencies that don’t accept insurance.
Enrolling in the recommended treatment before court is an advantage at the trial.
Many attorneys are now recommending that you enroll at the time of your assessment.
First Step provides DWI and substance abuse assessments in the evening and on Saturday. The state of NC requires that a DWI provider charge $100 for the DWI assessment. First Step charges no administrative fees or other charges of any type except for out of state transfers.
To schedule your appointment in Raleigh, call (919) 833-8899. You can pay by either money order, credit card or cash; Garner (919 329-9400; Durham (919) 419-0229. Insurance may be used to assist with paying for DWI counseling, treatment, or groups.
Before the results of your assessment can be finalized, you will need to bring in written proof of your Breathalyzer reading (BAC) if you were arrested for DWI. You can also obtain a copy from the clerk’s office or have your attorney fax verification to us.
NC DWI law requires a certified copy of your driving record be reviewed at the DWI assessment. If you have a North Carolina driver’s license this can be obtained in room 108 at the DMV located at 1100 New Bern Avenue in Raleigh. First Step staff will pick up your NC driving record and court records if you need that service.
DWI Assessments “508s” are completed online at First Step Services, speeding up the turn around time.
First Step Services Durham
3329 Chapel Hill Blvd, Suite 201
Durham, NC 27707
(919) 419-0229 Fax: (919) 490-3708
Mar 10, 2012 | DUI & DWI, Uncategorized
This recent article highlights some of the controversies surrounding North Carolina’s newest and most sweeping changes to its already strict and harsh DWI laws. Let’s be frank. It is going to be very difficult to get a fair trial now in NC. The “mystery box” now rules. We are going to be convicting defendants based on “voodoo science” that even the police officers and prosecutors themselves cannot explain. The breahalyzer is a machince, not an “instrument.” And like every other machine ever invented, it has flaws and a “margin of error” in its “readings.” And, with high use and improper maintenance, it is going to make mistakes and give false readings. But, just to be clear, brand new, right out of the box, no one can fully demonstrate how it actually does what it is supposed to do. The “magical solution” upon which all results are based is made up of….well, only the manufacturer knows. The exact chemical compound is proprietary.
I agree with Bill Powers. This latest law minimizes the need for judges and juries in NC. The BA reading is all the State needs to convict now. The penalties for a first time, no accident, no injury DWI were harsh already, but now, will be financially devestating to most hard working people. Let’s also remember that the “legal limit” has steadily been arbitrarily reduced, without any significant additional research on human physiology. Originally, the legal limit was 0.15, nearly double the current standard. Then, it was 0.12, and for years and years, it was 0.10. Even now, there are calls to lower the standard again to 0.06. Apparently, no one is supposed to be able to have a glass of wine with dinner or a beer with a friend. The new law in response to a truly tragic DWI death case appears to go too far while attempting to “close loopholes.”
In our DWI practice at Reeves, Aiken & Hightower, LLP, we represent those individuals who have found themselves caught up the maze of a first time DWI arrest. Most have had a calculated number of drinks and felt that they were perfectly fine to drive home safely. They are hard working people who would never endanger their fellow citizens or put their driving privilieges at risk. It goes without saying that no one wants truly drunk drivers on our roads. However, justice requires much more than this new law mandates. Persons not guilty of actually driving while impaired are going to be convicted wrongfully and swept away in the current hysteria. The otherwise law-abiding citizens of our state can only hope that the NC appellate courts will take a more balanced and fair approach.
If you have been charged wrongfully under this new law, call us today for a private consultation at 704-499-9000. And for more information about our law firm and attorneys, please visit our website at www.rjrlaw.com.
Tougher N.C. DWI Law To Make Convictions Easier
CHARLOTTE, N.C. —
People caught drinking and driving in North Carolina will find it tougher to beat the case in court thanks to a new law that went into effect Friday.The law is one of the toughest in the country, and it makes it easier for prosecutors to get convictions in driving while impaired cases.Many people, particularly those in groups like Mothers Against Drinking and Driving, have felt that drunken drivers get caught out on the roads, only to get away in the courts.Robert Yoho supports the new law. He lost his oldest son to a drunken driver two years ago. Since then he’s been telling anyone who’ll listen about the pain caused by drinking and driving, as well as pushing for the new, tougher law that essentially makes a blood alcohol reading of 0.08 a guilty verdict.Yoho considers the change a victory for him.“Everybody knows they make that choice (to drink and drive),” he said.
But the new legislation is already raising questions.
“We’ve gone too far,” said Bill Powers, a defense attorney. “No one likes drunk driving. I don’t like drunk driving. I’m married, I have a child.”
Powers says the law goes too far because it short-circuits a legal system that is supposed to play out in the courtroom.
“Really we don’t need judges anymore. We don’t need juries anymore. They can just go to court and have to find them guilty without listening to the facts,” he said.
Bruce Lillie, an assistant district attorney, says he disagrees.
Lillie supervises the prosecutors who handle driving while impaired cases in Mecklenburg County. He says the new law is one of the toughest in the country, but it is not taking anyone’s rights out of the courtroom.
“What it’s doing is it is closing loopholes – guilty or not guilty,” he said.
Prosecutors say you can still come to court and challenge how a DWI arrest was made and whether the machine was accurate, but defense attorneys believe the legislation will probably end up before a judge on constitutional grounds. For now – it’s the law.
That new law also lists more than a hundred drugs, including prescription drugs and their basic ingredients that are enough to find a driver guilty of DWI. It also gives prosecutors the ability to challenge rulings that go against them on technicalities in DWI cases
Jan 16, 2012 | DUI & DWI, Uncategorized
Breath Tests for Blood Alcohol Determination: Partition Ratio
by Srikumaran K. Melethil, Ph.D, Professor of Pharmacology, University of Missouri at Kansas City
The author is a professor in the UMKC School of Pharmacology, and also a graduate of the UMKC School of Law. The following is a condensation of a paper written in fulfillment of a research and writing requirement in the course of Scientific Evidence and Opinion Testimony. In relevant part:
I. SCIENTIFIC BASIS OF BREATH TESTS
1. Introduction:
In cases involving drunk driving, the prosecution has to prove that the defendant’s blood alcohol concentration (BAC) at the time of the offense is at or above a statutory concentration. In the majority of jurisdictions it is 0.10% [i.e., 0.1 gram of alcohol per 100 milliliters of blood]. In some jurisdictions, it is 0.08%, see People v. Ireland, 39 Cal. Rptr. 2d. 870 (Cal. Ct. App. 1995). In this connection, there is an ongoing national debate to reduce this value to 0.08% nationwide. In order to provide proof of BAC it is necessary to obtain a suitable biological sample (i.e., blood, urine, expired air) from the defendant at the time of arrest. Determination of BAC by use of a breath test, is by far the most popular scientific test for drunk driving. The breath test involves the measurement of alcohol in an appropriate sample of breath, expired alveolar air. (Alveolar air is that part of the expired air, which is in equilibrium with blood; usually this is taken as the terminal portion of expired air. One likely reason for the high variability observed in partition ratios is the difficulty in obtaining true alveolar, or deep lung air for analysis). This breath alcohol concentration is then multiplied by a factor called the partition ratio to convert the concentration measured in the breath to the corresponding alcohol concentration in the blood. In most jurisdictions, a value of 2100 is used for this ratio by statutory mandate. However, this partition ratio of 2100 can differ from individual to individual or differ in a given individual from time to time. Therefore, while it is quite simple to perform, the use of breath tests to determine BAC suffers from a major and fundamental weakness in that it is an indirect method.
For that reason, the conversion (extrapolation) of the directly measured concentration of alcohol in the expired air to obtain its concentration in the blood has been the subject of much litigation. Understandably, this conversion is fraught with problems of variability (uncertainties) introduced by the theoretical assumptions underlying the method. As was pointed out by one of the leading researchers in this area, The most trying forensic difficulties were consequent to what now appears to some to be an error in policy made by the pioneers in breath testing. This was in deciding to calculate the blood concentration from a quantity of alcohol found in the breath. Mason & Dubowski, Traffic & Chemical Testing in the United States: a Resume & Some Remaining Problems, 20 Clinical Chemistry 126, 128 (1974). The following section will present the scientific basis for the statutory decision to select a partition ratio of 2100 and the variability, both inter-subject and intra-subject, to be expected in this ratio.
2. Basic assumptions:
A direct correlation is assumed between the concentration of alcohol in the alveolar air and concentration of alcohol in the blood, more precisely, ethanol. This assumption is based on Henry’s Law which states that, at constant temperature, the concentration of gas dissolved in a liquid is proportional to its concentration in the air directly above the liquid. Brent and Stiller, Handling Drunk Driving Cases, ‘ 7 (Breath Tests) (1985). As applied to determination of BACs, this means that the concentration in the expired alveolar air is directly proportional to the concentration in the blood (i.e., the greater concentration of alcohol in the blood, the greater its concentration in the expired alveolar air). It is at the alveoli, commonly called air sacs (of which there are about 700 million in an average adult), where exchange of gases occur between blood and the expired alveolar air. Alcohol is a volatile liquid and assumed to freely diffuse (i.e., readily pass) across the membranes of the alveoli. Due to the latter assumption, it is also assumed that the exhaled alveolar air is in equilibrium with the blood. Equilibrium can be best explained as a condition where the ratio of concentrations of alcohol in blood and expired alveolar air has achieved a constant value. Therefore, in principle, its concentration in blood can be estimated by measuring its concentration in the expired alveolar air.
The commonly used partition-ratio of 2100 can be expressed as follows:
In principle, this ratio is determined by simultaneously (or as close to simultaneous as experimentally possible) measuring the concentration of alcohol in the blood and expired alveolar air of test subjects administered alcohol under controlled conditions. While values in the scientific literature for this ratio range from 1900 to 2400, an international panel chose, in 1972 Essentially by fiat, the currently accepted value of 2100. Brent, supra at 133.
3. Factors that affect the partition ratio.
Some factors that affect the partition-ratio, such as the effect of temperature, may be obvious, even to a non-scientist. There are others that are not so apparent. These factors can either increase or decrease the actual BAC.
a. Effect of Temperature: The widely used partition blood-to-air partition ratio of 2100 is based on a normal body temperature of 98.6 0F. A higher body temperature of the individual will overestimate the actual BAC because of the higher volatility (or vapor pressure) of liquids like alcohol at a higher temperature. An elevation in body temperature of 1 0C (1.8 0F) results in a 7% higher value in the result. Therefore, a person with a body temperature of 100.4 0F and with an actual blood alcohol of 0.0935 % will register a value of 0.10 % by the breath test. As can be seen from this hypothetical example, a small difference in body temperature can make the difference of guilt or innocence of drunk driving in defendants with a BAC close to the legal limit. This widely accepted ratio is also based on the assumption that the average temperature of exhaled air is 93.20 F.
b. Atmospheric Pressure: There is little evidence to support the belief that the partition ratio is affected by atmospheric (barometric) pressure. Breathalyzer tests conducted at altitudes of 5000 feet and 10000 feet essentially gave the same results. This is expected based on scientific principles of gases.
c. Cellular Composition of Blood: Blood contains suspended cells (e.g. red and white cells) and proteins, and is therefore only a partial liquid. The partition ratio of 2100 is based on a average hematocrit (the cell volume of blood) of 47%; hematocrit values range from 42 to 52 % in males and 37 to 47 % in females. Therefore, a person with a lower hematocrit will have falsely elevated blood alcohol based on a breath test; this variability has been estimated to be relatively small, ranging from – 2 to + 5 %.
Since alcohol freely diffuses into cells but not into cellular membranes, the subtle point to be aware of is the variability in volume of the cell debris (i.e. volume of cell membranes after cells are analyzed), and not the actual hematocrit that is responsible for the reported variability. Understandably, a higher hematocrit value represents a higher value of cell debris. The mean value from several studies show that debris can account for about 16% of the volume of blood. For example, 0. 119 mg % (in serum) is equivalent to 0.10% of BAC. Fitzgerald and Hume, Intoxication Test Evidence: Criminal and Civil,‘ 4:26 at 152 (1987).
d. Physical Activity and hyperventilation: Exercise can underestimate blood alcohol values. In one study BACs of subjects before and after running up a flight of stairs decreased 11 to 14 % after one trip and 22-25 % after two such trips. In a another study, a 15% decrease in blood alcohol was reported in subjects following vigorous exercise or hyperventilation.
e. Changes in water content of expired air: Water, present in the form of vapor, in expired air will condense into the liquid form with a lowering of temperature. Air exhaled into the tubes of a breath test device, such as the Breathalyzer, is assumed to be saturated with water at about 93.20 F . Decreases in this temperature can result in an underestimation of reported BAC due to condensation of water and the subsequent removal of alcohol from the expired air. One study showed that when the mouthpiece of the breath test instrument was kept at 23 0C, there was an average decrease in temperature of exhaled air by 1.6 0C.
f. Radio Frequency Interference (RFI): Andre Moenssens, et al., Scientific Evidence in Civil and Criminal Cases ‘ 3.09 at 204 (4th ed. 1995). This interference describes the effect of an electronic instrument on a radio wave or current that it is not designed to pick up. If a particular Breathalyzer as an electronic instrument were susceptible to RFI, then the measurement of light distance obtained when the operator balances the meter might not be an accurate indication of the amount of alcohol in the breath sample. Instead, the light distance might reflect, in part, a deflection in the meter needle caused by a stray current induced by radio waves in the surrounding environment.
At Reeves, Aiken & Hightower, LLP, all of our attorneys are seasoned trial lawyers with over 70 years combined experience. Whether it is criminal or civil, our litigators are regularly in court fighting for our clients. Two of our firm’s partners, Art Aiken and Robert Reeves, are lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. Our attorneys include a former SC prosecutor, a former public defender, a former NC District Attorney intern, a former Registered Nurse (RN), and former insurance defense attorneys. We welcome an opportunity to sit down and personally review your case. Call us today for a private consultation. www.rjrlaw.com
Jan 14, 2012 | DUI & DWI, Uncategorized
DUI Case Backlog Reduced After S.C. Supreme Court Issues Order
A large backlog of DUI cases has been sigmificantly reduced after South Carolina Chief Justice Jean Toal ordered magistrate and municipal courts to clear thousands of lingering alcohol related cases.
According to a report in the Charleston Post and Courier, Chief Justice Jean Toal issued an Order requiring all non-jury cases older than 60 days and jury cases older than 120 days to be closed by July 2011.
The order cleared 11,000 cases, but thousands of old cases remained. During the four-month period, new cases were constantly being added, so by the end of July, 14,000 cases still awaited hearings. Those cases are being processed under the framework of the original Order. Cases where no jury trial has been demanded are being scheduled for disposition within 60 days of the initial court date, while cases that are moved to the jury trial docket are being scheduled for trial within 120 days.
Various factors had contributed to the growth of the backlog. Chief Justice Toal pointed to one source as a shortage of judges statewide. The article mentioned that party-requested continuances have delayed cases, sometimes going back years.
The reality is that a number of factors contributed to the backlog. Many law enforcement agencies developed their own special DUI Task Force. Such task forces operate with a mission to make more arrests for DUI. The penalties for being convicted of DUI in South Carolina increased dramatically effective February 2009, prompting most arrestees to retain legal counsel to defend them, rather than simply plead guilty because it was less costly.
Old Cases Out First
It was reported that after the order, 42 percent of the cases that had been pending were dropped or dismissed; in the four months before the order, only 30 percent had been dropped.
These numbers are misleading in that they suggest that the Order caused prosecutors to simply drop cases with no regard to the merits. The 12 percent difference can also be explained by the approach some prosecutors have taken historically where they hold a weak case rather than dismiss it in order to use the pending charge as a type of individualized deterrent.
Another area of confusion stems from how one might interpret what actually happens when a charge is dismissed. There is no lesser included offense to DUI, therefore in cases where negotiations result in a plea to Reckless Driving, Leaving the Scene of an Accident or even Driving With An Unlawful Alcohol Concentration, the DUI charge must be dismissed when the new traffic ticket is issued to the defendant.
Not A Priority
Despite the fact that the Defense, the Prosecution and the Court approach the disposition of DUI cases with the same level of commitment as other types of criminal cases; many of the DUI and DUAC cases have languished because the municipal and magistrate courts are at the “the bottom of the food chain” in terms of forum priority. This means that lawyers are often required, by rule, to attend to cases in higher-level courts, leaving the DUI cases to be pushed back to a later date on the courts’ calendar.
Resources Also An Issue
In most of DUI 1st offense cases made by the South Carolina Highway Patrol, the state trooper represents the state as prosecutor of these DUI cases. If the trooper appears at the courthouse and the case is delayed or continued, they will have to return later, again taking them away from their patrol.
In a story by WPSA-TV, Chief Justice Toal commented that the troopers should not be required to prosecute the case. She called for “a lot more resources” to prosecute the cases, using attorneys for the state instead of the troopers, as they would be able to more accurately gauge the strength of the case.
David Ross, director of South Carolina’s Prosecution Commission agreed. He noted the increasing complexity of the DUI laws, and that even if the troopers had the time, an attorney should prosecute the case.
Prosecutors are generally more up to date on developments in the law, and understand legal procedure and the rules of evidence. Thus they are in a better position to assess the best course of action in a given case. Law enforcement officers serve a different function in the system and the people of South Carolina are best served when these roles are not combined.
This, of course, is problematic with ever-tighter state budgets, which offer little flexibility for increases in resources, and often require cuts in staffing. Part of the backlog is due to the ending of grants from the state to the counties. Several Circuit Solicitors around the state have obtained grant funds and have used the same to employ prosecutors for the purpose of prosecuting DUI cases in Magistrates Courts. But this solution may be temporary as it is unknown if these grants will be renewed.
Many municipalities have taken a different approach by hiring lawyers to serve as part-time prosecutors. This type approach is only as good as the commitment made by part-time prosecutor. In jurisdictions where the part-time lawyer accesses the case and manages the movement of the case on the docket; this approach is very effective. In situations where the part-time prosecutor simply parrots the position of an interested witness, this approach can be very inefficient.
Simpler Law?
Laura Hudson, the Public Policy Liaison for South Carolina Mothers Against Drunk Driving’s, spoke with WSPA-TV about the backlog, and was quoted as saying, “If you never get a conviction for that first one, and it’s dismissed, the second on[e] you get is treated as a first, the third one you get is treated as a [second], so you’re masking … that very dangerous driver,” Hudson said.
Her basic complaint was while it may have helped clear the backlog, it may have “let off” many drivers who received lower-level plea agreements, for charges like reckless driving. Hudson noted, “The only real solutions are more prosecutors, more courts or a less complicated law, like “per se” laws that many states have.” According to the story, some of these laws have been ruled unconstitutional in some states.
In states where 0.08 BAC is “per se” intoxicated, the accuracy of the test, the calibration of the equipment and the training of the operator can all be questioned and complicate the case.
Given the fallibilities and inexact nature of testing breath for accurate blood alcohol values, reliance on the number reported by a machine, as the only relevant evidence of impairment, is a major step backward, not forward. Such an approach nullifies each of the most fundamental protections afforded in America; trial by jury, presumption of innocence and the demand of proof beyond all reasonable doubt before a criminal conviction.
Notwithstanding Mrs. Hudson’s complaint, a review of the statute confirms that South Carolina has one of the most straight forward DUI laws in the country. Like everywhere else in the USA, an officer can conduct a traffic stop as long as he has articulable suspicion or probable cause of a violation of the law. The legal standard which defines DUI is “material and appreciable impairment.”
The complaints about the law being complex or complicated often arise due to the officer’s lack of compliance with the video recording law. Opinions on any subject often vary. The issue of whether a driver is impaired as defined by the law is a matter of opinion.
Fairness is ensured by the requirement that the investigation be video and audio recorded. Activating the recording equipment is not complicated; recording systems installed by DPS are set up so that the camera comes on automatically once the blue lights are activated.
Every law enforcement officer in the state has been given a card which lists Miranda rights and been taught when to read it. Everything else is a question of whether the citizen’s conduct as recorded on video is consistent with the officer’s conclusion and written report.
Rather than contributing to a backlog, the proper use of tools like video recording make it much easier to distinguish a bad case from a good one; thus eliminating the need or desire for many jury trials.
At Reeves, Aiken & Hightower LLP, our attorneys have over 70 years of combined trial experience in both civil and criminal courts. We focus our criminal practice on DUI and DWI cases in both South Carolina and North Carolina and are available by mobile phone in the evenings, on weekends, and even holidays. Our lawyers are licensed in both states and are effective criminal trial attorneys. We are not afraid to go to Court and often do. Don’t settle for a lawyer who only wants to reduce your DUI charge to reckless driving. Call us today for an attorney case review of your particular situation. We are here to help.
Article provided by the Carroll Law Firm of Charleston, South Carolina
