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By Paul Alongi, STAFF WRITER - The Greenville News - VIEW ORIGINAL ARTICLE
Suspected drunk drivers will soon face longer license suspensions for refusing to take a blood-alcohol test, but prosecutors remain concerned that many will be able to continue avoiding the penalty through appeal.
Drivers who refuse the blood-alcohol test now face an automatic license suspension of 90-180 days, while the new penalty will range from six to 15 months, depending on whether suspects have previous convictions.
Motorists can appeal their suspensions to the Office of Motor Vehicle Hearings and keep their licenses while awaiting trial if successful.
Some prosecutors are searching for ways to bolster their presence at the hearings in hopes of making more suspensions stick.
Longer suspensions are part of a new driving-under-the-influence law that also increases sentences for high blood-alcohol levels.
"Anytime you raise the penalty for higher blood-alcohol concentrations, you run the risk that more people will refuse (the test)," 7th Circuit Solicitor Trey Gowdy said. "So, you have to raise the penalty for refusals."
The law goes into effect Feb. 10 in a state that has one of the nation's highest alcohol-related fatality rates.
Greenville defense attorney Jason Elliott said his advice will remain unchanged -- don't take the breath test.
"The odds of being acquitted or having a DUI case dropped or reduced are enhanced if you do not take the DataMaster (test)," he said.
Greenville Police Chief Terri Wilfong said she thinks more drivers will decide differently and take the test when the suspension periods increase.
"I think it's going to make a tremendous difference for us," she said.
But police have argued that the defense has an unfair advantage at license-suspension hearings because officers often arrive on their own, while defendants show up with attorneys.
Drivers who challenged their suspensions in 2007 had a nearly nine in 10 chance of getting their licenses back, according to the state Administrative Law Court.
Greenville City Attorney Ron McKinney said he's considering several options that he hopes will "balance the scales a little bit." City police may get legal training, he said, or McKinney and his assistant could attend select hearings.
Elliott and another Greenville defense attorney, Steve Sumner, said they didn't know of any legal reason prosecutors would be barred from representing police at the hearings.
The administrative hearings are civil matters and do not determine guilt or innocence on DUI charges.
Barry Barnette, a former magistrate and now a deputy solicitor under Gowdy, said that while he tries to help officers who call, the 7th Circuit Solicitor's Office doesn't have the manpower to send an attorney to each of the license-suspension hearings.
He proposed that an attorney be provided for each of the state Highway Patrol's seven regions.
Laura Hudson, legislative liaison for the state's chapter of Mothers Against Drunk Driving, said the state should eliminate the possibility that suspected drunk drivers can get their licenses back while awaiting trial.
"It's not about finding loopholes," she said. "It's about public safety -- or that's what it should be."
Elliott and Sumner said that eliminating the hearings could violate defendants' constitutional right to due process.
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