Mar 15, 2012 | DUI & DWI, Uncategorized
One of the first tasks a DUI lawyer at trial is to reverse the jury’s stereotype of a “DUI” or “drunk driver.” Not all incidents where an individual is driving under the influence are equal, and as with all potential crimes, there are degrees of blameworthiness. What we reinforce to juries in the opening statement is that everyone who finds themselves accused of a crime comes before them “presumed innocent.” Then, the State of South Carolina must prove them guilty “beyond a reasonable doubt.” Why such a high standard of proof required. Because it is the State of South Carolina, with all of its resources, against an individual with limited means to defend themselves. That standard makes the fight just a little more balanced. As you can see, it is critical that you hire an experienced criminal trial attorney as early as possible. There is simply too much at stake to risk hiring the wrong lawyer.
At Reeves, Aiken, Hightower & Burns LLC, our seasoned 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 aggressive 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 charges to reckless driving. We welcome the opportunity to sit down and personally discuss your case. Compare our attorneys’ credentials to any other firm. Then call us today at 803-548-4444 for a private consultation.
Mar 8, 2012 | DUI & DWI, Uncategorized
This SC Supreme Court case addresses the distinction between the criminal and DMV aspects of a DUI arrest. On the criminal side, a failure to follow the implied consent statute will result in exclusion of evidence at trial. On the DMV side, however, the Court declined to reach a similar outcome. The critical difference involves “rights” which must be protected during a criminal proceeding versus the “privilege” of operating a motor vehicle which can be regulated by the Department of Motor Vehicles (DMV). Even if the criminal charges are ultimately defeated, there may still be civil consequences on your ability to drive. Better make sure your DUI attorney understands these crucial elements and how they interact. There is too much at stake to risk an inexperienced criminal lawyer.
At Reeves, Aiken & Hightower LLP, our seasoned 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 aggressive 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 charges to reckless driving. We welcome the opportunity to sit down and personally discuss your case. Compare our attorneys’ credentials to any other firm. Then call us today at 803-548-4444 for a private consultation. Or visit our firm’s website at www.rjrlaw.com.
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Suchart Taylor, Petitioner,
v.
South Carolina Department of Motor Vehicles, Respondent.
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal From Berkeley County
R. Markley Dennis, Jr., Circuit Court Judge
Opinion No. 26637
Heard October 8, 2008 – Filed April 20, 2009
AFFIRMED
C. Bradley Hutto, of Williams & Williams, of Orangeburg, C. Rauch Wise, of Greenwood, Desa Ballard and P. Christopher Smith, Jr., both of West Columbia, and Michael Sean O’Neal, of N. Charleston, and Reese I. Joye, of Joye Law Firm, of N. Charleston, for Petitioner.
General Counsel Frank L. Valenta, Jr., Deputy General Counsel Philip S. Porter, and Assistant General Counsel Linda A. Grice, all of Columbia, for Respondent.
JUSTICE WALLER: We granted a writ of certiorari to review the Court of Appeals’ opinion in Taylor v. SC Dep’t of Motor Vehicles, 368 S.C. 33, 627 S.E.2d 751 (Ct. App. 2006). We affirm.
FACTS
Petitioner, Suchart Taylor, was involved in an automobile collision on I-26 in Berkeley County. A police officer arrived on the scene to find Taylor in his pickup truck being treated by paramedics. The officer smelled alcohol inside the vehicle and, when he attempted to speak with him, Taylor seemed disoriented and had heavy mouth injuries; he was unable to stand or perform field sobriety tests.
Taylor was taken to the emergency room, where he was advised of his Miranda rights and arrested for DUI. The officer determined Taylor’s mouth injuries would prevent him from taking a breath test, so he requested a blood sample. The officer read the implied consent form aloud to Taylor, but did not provide him with a written copy of the form. Taylor refused the blood sample and refused to sign the implied consent form; he was therefore issued a notice that his driver’s license would be suspended for ninety days.
Taylor filed for an administrative hearing to challenge the license suspension. The hearing officer upheld the suspension. Taylor petitioned for judicial review contending the license suspension was invalid because he had not been provided with a written copy of the implied consent law, as required by S.C. Code Ann. § 56-5-2951 (2006). The trial court agreed and reversed the license suspension. The Court of Appeals reversed the trial court’s ruling; it held Taylor was not prejudiced by the lack of a written copy of the implied consent form because he was read those rights aloud.
ISSUE
Did the Court of Appeals properly hold that Taylor was not prejudiced by the lack of written notice of the implied consent law?
DISCUSSION
The Implied Consent Statute, S.C. Code Ann. § 56-5-2950(a) (2006), provides that a person who drives a motor vehicle in South Carolina is considered to have given consent to chemical tests of his breath, blood, or urine to determine whether the person was driving a motor vehicle while under the influence of alcohol, drugs, or a combination of alcohol and drugs. The statute provides, in pertinent part:
No tests may be administered or samples obtained unless the person has been informed in writing that:
(1) he does not have to take the test or give the samples, but that his privilege to drive must be suspended or denied for at least ninety days if he refuses to submit to the tests and that his refusal may be used against him in court;
(2) his privilege to drive must be suspended for at least thirty days if he takes the tests or gives the samples and has an alcohol concentration of fifteen one hundredths of one percent or more;
(3) he has the right to have a qualified person of his own choosing conduct additional independent tests at his expense;
(4) he has the right to request an administrative hearing within thirty days of the issuance of the notice of suspension; and
(5) if he does not request an administrative hearing or if his suspension is upheld at the administrative hearing, he must enroll in an Alcohol and Drug Safety Action Program.
S.C. Code Ann. § 56-5-2950(a). (Emphasis supplied). Subsection 56-5-2950(e) provides that the failure to follow policies or procedures set forth in § 56-5-2950 will result in the exclusion from evidence of any tests results, “if the trial judge or hearing officer finds that such failure materially affected the accuracy or reliability of the tests results or the fairness of the testing procedure.” Notably, neither section (a) nor section (e) addresses the issue of license suspension for the failure to comply with the procedures set forth therein.
S.C. Code Ann. § 56-5-2951(a), governs the Department of Motor Vehicle’s (DMV) suspension of a driver’s license for refusing to submit to a test or for certain levels of alcohol concentration. The statute states that the DMV “shall suspend the driver’s license . . . of . . . a person who drives a motor vehicle and refuses to submit to a test provided for in Section 56-5-2950;” the statute gives an offender thirty days in which to request an administrative hearing. S.C. Code Ann. § 56-5-2951 (B) (2). The hearing must be held within thirty days and is limited to a determination of whether the person:
(1) was lawfully arrested or detained;
(2) was advised in writing of the rights enumerated in Section 56-5-2950;
(3) refused to submit to a test pursuant to Section 56-5-2950; or
(4) consented to taking a test pursuant to Section 56-5-2950 (and several conditions relating to administration of the test).
S.C. Code Ann. § 56-5-2951(F) (1-4). We find nothing in section 56-5-2951 which mandates re-issuance of the driver’s license if one, or all of the above factors is not met. If the Legislature had intended the lack of written notice (or any other factor) to be a fatal defect, it could have said so in the statute. Giannini v. SC Dep’t of Transportation, 378 S.C. 573, 664 S.E.2d 450 (2008) (if Legislature had intended certain result in a statute it would have said so). Accord S.C. Dep’t of Motor Vehicles v. Nelson, 364 S.C. 514, 523, 613 S.E2d 544, 549 (Ct. App. 2005) (requirements for suspension for refusal to consent do not include written notice of implied consent statute).
We hold the criterion in § 56-5-2951(f) are simply factors which the DMV may consider in determining whether to uphold a suspension, i.e., a prejudice analysis. Given that nothing in § 56-5-2951 provides for mandatory re-issuance of a driver’s license upon review of these factors, we find an examination of the four factors with an eye toward prejudice is the proper inquiry. Accordingly, the Court of Appeals properly applied a prejudice analysis. Given that it is undisputed Taylor was advised of the implied consent warning, the Court of Appeals properly found he suffered no prejudice from the officer’s lack of written notice. Accordingly, the Court of Appeals’ opinion is affirmed.
AFFIRMED.
TOAL, C.J., and Acting Justice Billy A. Tunstall, concur. BEATTY, J., dissenting in a separate opinion in which PLEICONES, J., concurs.
JUSTICE BEATTY: I respectfully dissent. Section 56-5-2950(a) of the South Carolina Code specifically states no tests may be administered or samples obtained unless the person has been informed in writing of certain provisions of the section. S.C. Code Ann. § 56-5-2950(a). It is undisputed that Taylor was not “informed in writing.” In my view, the Department of Motor Vehicles cannot suspend a driver’s license because driver refused to take a test that the law enforcement officer was not authorized to administer.
The South Carolina Legislature specifically set forth a pre-condition that must be met before any tests may be administered. Section 56-5-2950 is unambiguous and its meaning and intent are clear. The Court may not simply ignore it. I would reverse the decision of the Court of Appeals.
PLEICONES, J., concurs.
Mar 6, 2012 | DUI & DWI, Uncategorized
This SC Supreme Court case addresses an issue we encounter routinely as we practice in both South Carolina and North Carolina. Whenever you are arrested for DUI in one state, that arrest is supposed to be communicated back to your “home” state. If you refuse to submit to the breathalyzer, your driving privileges are immediately suspended for six (6) months in SC and twelve (12) months in NC. In order to regain your license, you may have to resolve the various requirements in both states. This case stands for the proposition that due process and fundamental fairness applies to this interest. Although the Courts make a critical distinction between “rights” in criminal courts and “privileges” in civil DMV hearings, the characterizations are rendered moot when it comes to the legal proceedings involved in both forums. Better make sure your DUI attorney understands these crucial differences and is willing to fight for you in court. There is too much at stake to risk an inexperienced lawyer.
At Reeves, Aiken & Hightower LLP, our seasoned 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 aggressive 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 charges to reckless driving. We welcome the opportunity to sit down and personally discuss your case. Compare our attorneys’ credentials to any other firm. Then call us today at 803-548-4444 for a private consultation. Or visit our firm’s website at www.rjrlaw.com.
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Charles R. Hipp, III, Respondent,
v.
South Carolina Department of Motor Vehicles, Appellant.
Appeal from Charleston County
Michael G. Nettles, Circuit Court Judge
Opinion No. 26588
Heard December 4, 2008 – Filed January 26, 2009
AFFIRMED
General Counsel Frank L. Valenta, Jr., Deputy General Counsel Philip S. Porter, and Assistant General Counsel Linda A. Grice, all of Blythewood, for Appellant.
Michael A. Timbes, of Thurmond, Kirchner & Timbes, of Charleston, for Respondent.
PER CURIAM: South Carolina Department of Motor Vehicles (SCDMV) appeals the order of the circuit court enjoining it from suspending the driver’s license of Respondent Charles R. Hipp, III (Respondent) as a consequence of Respondent’s 1993 Georgia conviction for driving under the influence (DUI). We affirm.
FACTS
Respondent was arrested and pled guilty to DUI in the State of Georgia in 1993. At the time of the arrest, Respondent was a South Carolina resident attending college in South Carolina, and a driver licensed by the South Carolina Department of Motor Vehicles (SCDMV). As a result of his plea, Respondent paid a fine to the State of Georgia and fulfilled other conditions required by Georgia. In 2005, twelve years after his conviction, Respondent received notice from the SCDMV that his South Carolina driver’s license was being suspended as a consequence of his 1993 Georgia DUI conviction. Respondent filed a declaratory judgment action asking the court to enjoin suspension of his license. The circuit court issued an order enjoining the SCDMV from suspending Respondent’s driver’s license.
ISSUE
Did the circuit court err in enjoining the suspension of Respondent’s driver’s license?
STANDARD OF REVIEW
“Actions for injunctive relief are equitable in nature.” Shaw v. Coleman, 373 S.C. 485, 492, 645 S.E.2d 252, 256 (Ct. App. 2007). In actions in equity this Court may find facts in accordance with its own view of the preponderance of the evidence. Id.
ANALYSIS
The circuit court cited three grounds for enjoining suspension of Respondent’s driver’s license: (1) that the applicable statute is ambiguous; (2) the doctrine of laches; and (3) that suspension twelve years after conviction violates the “fundamental fairness” required by due process. We find the circuit court’s conclusion as to fundamental fairness to be persuasive and so, affirm.[1]
A person’s interest in his driver’s license is property that a state may not take away without satisfying the requirements of due process. Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed2d 90 (1971). Due process is violated when a party is denied fundamental fairness. City of Spartanburg v. Parris, 251 S.C. 187, 191, 161 S.E.2d 228, 230 (1968).
This Court addressed facts similar to those in the case at hand in State v. Chavis, 261 S.C. 408, 200 S.E.2d 390 (1973). While we found fundamental fairness was not violated by suspension after a one-year delay, we allowed that there might be circumstances under which it could be soundly held that the State had no right to suspend a driver’s license after a lengthy delay. Id. at 411, 200 S.E.2d at 391. We find in the instant case the extreme circumstances contemplated by Chavis.
While we do not intend to set forth a bright line rule, we find that imposition of a suspension after more than twelve years delay, where Respondent bears no fault for the delay, is manifestly a denial of fundamental fairness.[2] Though neither dispositive nor directly applicable to the instant case, we note that Title 56 of the South Carolina Code, which addresses “Motor Vehicles,” is replete with ten-year limitations for purposes of sentence enhancement and keeping record of convictions. See, e.g., S.C. Code Ann. §§ 56-1-746 (for purposes of determining a prior offense for sentence enhancement of alcohol-related offenses, only convictions within ten years of the date of the most recent violation are considered prior offenses); 56-1-1340 (violation convictions shall be entered in the records of the SCDMV for a period of ten years); 56-5-2940 (for sentence enhancement of convictions for operating motor vehicle under influence of alcohol or drugs, only those violations which occurred within ten years preceding date of last violation constitute prior violations); 56-5-1990 (in determining time of suspension of driver’s license, only violations which occurred within ten years of the last violation shall constitute prior violations).
CONCLUSION
We agree with the circuit court that under the unique circumstances of this case, the attempted suspension of Respondent’s driver’s license twelve years after conviction constitutes a denial of fundamental fairness. The order enjoining suspension is therefore
AFFIRMED.
TOAL, C.J., WALLER, PLEICONES, BEATTY and KITTREDGE, JJ., concur.
[1] Having found the circuit court’s decision supported by its finding that Respondent was denied fundamental fairness, we do not address the remaining grounds. See Wilson v. Moseley, 327 S.C. 144, 147, 488 S.E.2d 862, 864 (1997).
[2] It should be noted that neither Respondent nor SCDMV is at fault for the delay. The unexplained delay in reporting the 1993 violation appears to be solely attributable to the inaction of the State of Georgia.
Mar 1, 2012 | DUI & DWI, Uncategorized
In a recent story reported by WJBF News Channel 6 posted on February 16, 2012, there is an apparent effort to “close the loophole” which allows DUI defendants to drive mopeds despite not being able to get a regular driver’s license during a suspension period. At the risk of seeming flippant, I always thought driving a moped was part of the rehabiliation process. The jokes alone would seemingly deter future bad conduct. Nevertheless, the legislature is taking active steps to deprive accused drivers from using mopeds to get around or go to work. Truly drunk drivers should be arrested and punished, especially if they injure or kill innocent victims. However, as a practicing DUI attorney, I regularly meet good, hard working individuals who have gotten caught up in the current DUI hysteria after having a drink with dinner or a beer with a friend. If you drive with any amount of alcohol on your breath and are stopped, you are going to be arrested and spend the night in jail no matter what you say or do. If you attempt to perform field sobriety tests, you will invariably fail and be arrested. If you decline any question or test, you are going to jail. You get the idea here. The best advice, pre-DUI arrest, is to simply not drink at all before driving. Even though that is not what the laws requires, it is the only protection available to prevent a wrongful DUI arrest.
At Reeves, Aiken & Hightower LLP, our seasoned 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 aggressive 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 charges to reckless driving. We welcome the opportunity to sit down and personally discuss your case. Compare our attorneys’ credentials to any other firm. Then call us for a private consultation. www.rjrlaw.com.
Here is the story:
Columbia, SC –A South Carolina Senate committee has approved a bill that would close a loophole in the state’s DUI law that has allowed people to drive mopeds while drunk.”It seems strange, but some magistrates have agreed that the law exempted mopeds from DUI laws,” says Sen. Larry Grooms, R-Bonneau, chairman of the Senate Transportation Committee. “So we’re absolutely closing that loophole.”
The problem is that state law does not consider mopeds to be motor vehicles. The state House passed a bill last year that would change that, to treat mopeds as motor vehicles in all circumstances. But Sen. Grooms says the House bill would lead to some unintended consequences, like allowing mopeds on Interstate highways, even though by definition a moped can’t go more than 30 miles per hour on level ground.
Mopeds are often associated with DUIs, because people who lose their driver’s licenses because of drunken driving can still drive a moped. State law says, “a person must possess a valid driver’s license … or a valid moped operator’s license … except that a person whose driver’s license has been suspended for a period of six months or less is not required to obtain a moped operator’s license or possess a valid driver’s license during the period of suspension.”
The Senate version of the bill would not change that. Sen. Grooms says, “The Senate amendment classifies mopeds as a motor vehicle only in the section of law dealing with driving under the influence.”
Moped driver Taylor Harrison, of Greenville, thinks closing the moped DUI loophole is a good idea. “Because a moped is essentially a motorcycle just powered down a little bit less. So if you drink and drive while on it, it still can be as dangerous as drinking and driving while on a motorcycle or something else,” he says.
But Billy Campbell, owner of Hawg Scooters in Columbia, says he doesn’t see a need for the change. “Clearly they don’t get all the DUI drivers,” he says. “So why are we going after mopeds?”
He says only the driver of a moped is likely to be hurt in a moped DUI accident. “There’s not going to be some mopedist that runs into a family and kills anybody,” he says.
The bill now goes to the full Senate floor, where Sen. Grooms expects it to pass. If it does, since senators changed the House version, the two bodies will have to reach an agreement on a final version.
Mar 1, 2012 | DUI & DWI, Uncategorized
In a classic case of the “tail wagging the dog,” two state prosecutors claim that DUI laws in South Carolina are apparently too easy to beat. They assert that “strict interpretation” of the law is to blame for losing otherwise “slam dunk” drunk driving cases. Take pause. Let that thought sink in. Judges are being maligned for enforcing the law. How about better training for police? How about more selective arrests and prosecutions? How can anyone seriously argue that video evidence laws should be rewritten. The current rules are fairly straightforward. Turn on the camera. Make sure it is working. Read Miranda warnings in front of the lens. These legal requirements really do not seem too demanding or draconian. Afterall, video evidence protects everyone – criminal suspects as well as the police. It keeps both sides “honest.” Juries no longer have to take anybody’s “word.” Rather, they can watch for themselves. The law is fine. It is both reasonable and fair. Police and prosecutors should focus on following the law instead of blaming their own system.
At Reeves, Aiken & Hightower LLP, our seasoned 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 aggressive 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 charges to reckless driving. We welcome the opportunity to sit down and personally discuss your case. Compare our attorneys’ credentials to any other firm. Then call us for a private consultation. www.rjrlaw.com.
Here is the written transcript of the recent interview at issue regarding the prosecution of drunk driving. The title of the news story, aired on WSPA-TV Channel 7, was “DUI roadblocks: Are Loopholes in the Law allowing drunk drivers to walk?” Only wish there was video.
SPARTANBURG, S.C. –
Two top prosecutors in the Upstate say South Carolina’s DUI law has failed miserably in its only purpose: to deter drunk driving and keep you and your loved ones safe on the highway.
They say, more than ever, those arrested for the crime are later walking out of courtrooms with the charge either dropped or reduced to a lesser offense. They say conviction rates have plummeted alarmingly in the four years since legislators re-wrote sections of the state’s DUI law to ostensibly make it stronger by increasing penalties.
According to numbers provided by the South Carolina Chief Justice’s Office, during an 8-month period from November 21, 2010 to July 21, 2011, only 46% of DUI cases that went to court actually resulted in convictions for that charge.
The Solicitors for the two largest circuits in the Upstate say there is one part of every DUI arrest that has made convictions harder than ever to come by: the videotape.
“The videotape, which is the most powerful piece of evidence we have, is being suppressed or the case is being dismissed because it was done incorrectly or in violation of the statute,” says Walt Wilkins, 13th Circuit Solicitor for Greenville and Pickens Counties.
He says when lawmakers revised the DUI law in 2008 to strengthen punishment, they also made it much more difficult for videotapes of arrests to be seen by juries.
“Before 2009, to suppress a video, the defense had to prove that the video was prejudiced to the suspect, which is difficult to prove,” says Wilkins. “But now, videos must strictly follow the videotaping section of the law to be introduced to a jury.”
He says, because of that strict interpretation, cases that were slam-dunk convictions prior to 2009 are now being thrown out by judges – often because of what’s not on tape. He showed us several examples, including the arrest of a driver who already had 5 pending DUI charges. During the field sobriety test, the driver could not stand on one leg and could not walk heel-to-toe. But in trying to walk heel-to-toe, he kept walking and walked out of view of the camera. This proved to be his saving grace. The judge dismissed the case because, as the law calls for, the entirefield sobriety test was not on video. Wilkins says that’s preposterous considering that arresting officers don’t have a second officer operating the camera so that it can be moved if a suspect should walk off screen. (Video cameras are stationary, fixed on the interior of the patrol car’s windshield.)
“Officers in the field have no way of knowing exactly what is in the field of view of their camera,” says Wilkins. “We often kid that you need a degree from Hollywood to make a good DUI case here in South Carolina.”
Wilkins shared another video that showed a car on I-385, weaving onto the shoulder several times. After pulling over and getting out of the car, the driver admitted to the deputy that he had drank six beers. The man could not follow the deputy’s instructions as he tried to perform the “eye track” test. Then, as he tried to stand with one foot in front of the other for the heel-toe walk, he could not do so without losing his balance. He finally conceded that he could not do the test and told the deputy to arrest him.
The case was perfect – except for one thing: by law, after a suspect is brought to the local detention center to perform the breathalyzer test, the officer must wait 20 minutes before offering the test. During this time, the suspect is to be videotaped as he sits in a holding cell.
“If you videotape him for 19 minutes and 40 seconds, then your case is dismissed; you’re in violation of the statute,” says Wilkins.
In this case, Wilkins says the suspect told the officer up front that he was not going to take a breathalyzer, so the officer did not record the 20-minute waiting period. This prompted the judge to dismiss the case. Wilkins says he has more than 200 similar cases pending.
Wilkins’ counterpart in Spartanburg shares his frustration. In 2007, Barry Barnette was named DUI Prosecutor of the Year by the Department of Public Safety, but last year his conviction rate fell to 44 percent. He says the state’s DUI law is not keeping the public safe.
“It’s a situation now where there’s cases being dismissed that should be going forward,” says Barnette. “It’s creating a dangerous scenario where we do not deter people from getting behind the wheel drunk because they know they have a good chance of not getting convicted.”
He showed Seven On Your Side video of one example where the driver had hit another vehicle in a parking lot. The driver appears to be so intoxicated, he can’t even stand still in front of the trooper. But the driver got the charge dropped because the trooper didn’t read him his miranda rights in front of the camera. On the video, you can hear the trooper reading the suspect his rights off camera. But the court says audio isn’t good enough.
Barnette and Wilkins call these examples of “loopholes” in the law and they say someone is exploiting them all the way to the bank.
“The DUI business is big in South Carolina right now. It’s a very lucrative business for attorneys,” says Wilkins.
Brad Hutto is regarded as one of the best DUI defense attorneys in the state. He’s also the state senator who chaired the judiciary subcommittee that re-wrote the DUI law in 2008. And he says he doesn’t see a problem with a system that allows those who profit from the enforcement of a law to be the ones in charge of re-writing that law.
“No more than I see any conflict with people who pay taxes writing tax laws,” says Hutto. “I mean, we all have our own lives, and we all do things in those lives, some that give us insight maybe more specifically than others, but, no, there are some things are clearly conflicts of interest. This is not one of them.”
He says the DUI law is protecting the public and he doesn’t believe the videotaping issues are nearly as common as prosecutors would like us to believe.
“I’m not going to tell you there’s not an isolated case here or there, but I would tell you that’s exactly what it is: an isolated case,” says Hutto.
Ronnie Cole is an Anderson attorney who literally wrote the book on how to beat traffic cases in South Carolina. He was also one of several lawyers who testified before Hutto’s committee in 2008, as the committee sought input from those who could offer insight on how changes to the law would affect the system. Cole says if DUI convictions are down, the problem isn’t the way the law is written but rather how officers are carrying it out.
“How hard is it to point a camera at someone and hit the record button?” says Cole. “Officers have an 8-hour training course that teaches them how to do that. If they aren’t doing it in these cases, then Barry (Barnette) and Walt (Wilkins) should just send out a memo and say ‘hey, stop doing things this way’. That would be a simple fix right there.”
He said in the example where the suspect walked off camera, the officer should have had him walking toward the front of the patrol car, directly toward the camera, instead of having him walk across the camera’s field of view.
“The cases that a lot of prosecutors gripe about is the cases where that officer has made a very poor case, for whatever reason,” says Cole.
Wilkins says officers cannot be expected to “mark every little box on the videotaping checklist” during every traffic stop when they are often dealing with adverse conditions or potentially dangerous suspects.
“That puts, in my opinion, an undue burden on law enforcement to make the perfect DUI case when they’re out there in real life, real live world situations trying to keep people off the streets who are intoxicated and save lives,” says Wilkins.
Wilkins and Barnette say they would like to see changes to the law so that prosecutors aren’t penalized for “technicalities”. Barnette has written some suggested revisions to the law that would make several changes to the videotaping section, including: allowing just audio of the mirandization process to be legally sufficient, striking the mandatory recording of the 20-minute observation period, and preventing a suspect’s actions (like waking off camera) from being sufficient grounds for dismissal of a video. State Representatives Eddie Tallon and Derham Cole, Junior, say they will co-sponsor a bill to make Barnette’s suggested revisions law.
Hutto says he does not believe “loopholes” exist in the law and does not believe these problems are as prevalent as prosecutors say they are, but he says he would consider revising the law if the solicitors present a compelling argument to do so.
“Nobody wants the law to not be properly administered,” said Hutto. “The intention in the videotaping law was not to create loopholes. The intention really was to create a tool for prosecution of these cases.”
According to Mothers Against Drunk Driving, the Palmetto State has the nation’s highest percentage of fatal crashes caused by intoxicated drivers. In comparison to our neighbors, North Carolina ranks 29th and Georgia is 44th (out of 50 states and the District of Columbia) in 2010, the most recent year of available data.
