Articles

Courtesy of GreenvilleOnline.com

Steve Sumner - Attorney At Law - UpstateDUI.com

In South Carolina, a person under investigation for DUI has the absolute right to refuse to take field tests, balance exercises and/or any breath alcohol test.

These basic and fundamental protections are granted to all American citizens through the Bill of Rights. Any individual under suspicion for criminal activity has the right to not incriminate himself or herself through words or actions. Other equally important and fundamental rights would be the right to a trial by jury, along with the guarantee that "due process of law" (in other words, a fair, equal and balanced procedure) will be followed and observed when a citizen has their freedom or property at stake.

All of these protections and guarantees are provided through both our federal and South Carolina Constitutions. In the case of our federal Constitution, these guarantees were put in place on Dec. 15, 1791 -- well over 200 years ago.

In addition, any defendant in a criminal trial is presumed to be not guilty, and the burden of proof remains at all times on the state. The standard of proof in every criminal prosecution is "beyond a reasonable doubt."

Why the civics or social studies review? Recently, there have been several discussions and actions centered on restricting the rights of citizens accused of DUI.

For example, when a driver is arrested under suspicion of DUI and refuses to take the breath test, his license may be suspended. Currently, the driver has the right to a hearing that examines the legality of suspending his driving privileges. Recently, there have been several articles questioning this right. "Due process of law" clearly requires a hearing to determine if all proper and mandated procedures were followed in the offering and administration of the breath test.

Another example would be that some police jurisdictions in South Carolina have been citing and charging motorists for "disobedience to a police officer" for not participating in balance tests on the side of the road. Both of these scenarios clearly violate our guarantee to "due process of law" and our right against self-incrimination.

It has often been said that "those who ignore history are bound to repeat it." Tragically, some of history's most valuable lessons were paid for with lives and freedom. On Feb. 28, 1933, German Chancellor Adolf Hitler used a fire at the Reichstag (Germany's Parliament or House of Representatives) to engineer an "emergency decree" suspending the basic rights of German citizens.

While Hitler told many news reporters that the decree was temporary, it lasted until the end of his reign. The decree suspended all civil liberties: free speech, free press, freedom of assembly, protection against unlawful and extended detention or imprisonment, and the overall due process of law. The reality was that the Feb. 28 decree became the "standard operating procedure" where arrest on suspicion, imprisonment without trial, and the horrific tragedy of concentration camps was accepted.

In one blow, the rights of a democratic society granted to German citizens through their constitution were wiped out. With the new emergency decree in place, and for "the protection of the people," Hitler's secret police became one of the worst nightmares this world has ever seen.

All of our constitutional protections should be vigilantly guarded. Any proposals that would eliminate or restrict our rights should be viewed with deep skepticism. I am sure the German citizens of 1933 would have liked an opportunity to revisit losing their constitutional rights. Just as we should carefully guard ours today.

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