Steve Sumner Law Firm

For Full Story - Click  HERE

For Full Story - Click  HERE

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.

Courtesy of GreenvilleOnline.com

Steve Sumner Comments - "More fees on the way..."

Starting this week, repeat DUI offenders will have to blow into a device about the size of a calculator to start their cars as part of the state's broader effort to crack down on drunk driving.

The ignition interlock device will measure blood-alcohol content and won't allow the car to start if it's over .02.

"We believe it's going to reduce the number of deaths due to drunk driving," said Juliet Nader Smith, spokesperson for the state chapter of Mothers Against Drunk Driving.

About 500 drivers could participate in the program this year, said Pete O'Boyle, spokesman for the state Department of Probation, Parole and Pardon Services.

Offenders will have to pay $70 for installation and a monthly monitoring fee of $90 to have the device on their cars. They will be eligible to get the device after serving suspensions.

While the program is voluntary and accompanied by treatment, drivers who opt out will have their driving privileges suspended for three years beyond the original suspension period.

Greenville defense attorney Steve Sumner said the cost -- more than $1,000 a year -- will be the biggest factor for many offenders.

"That is a lot of money for people, if they want to drive," Sumner said.

An indigent driver fund will be set up to help those who can't pay. The money will come from a $30 cut of the monthly monitoring fee paid by other offenders.

The 2007 law that requires the devices put them into effect Jan. 1. But the state Department of Motor Vehicles was closed for New Year's Day, so Friday was the first day offenders were eligible to get the devices.

The ignition interlock program comes on top of a new law that takes effect Feb. 10 and will increase penalties for high blood-alcohol concentrations.

Drivers will have to get the device's data download every 60 days and reviewed by the state Department of Probation, Parole and Pardon Services.

Those who repeatedly fail to do so or try to start their cars with a blood-alcohol content of .02 or higher could face suspension. The legal driving limit for others in the state is .08.

The program applies to vehicles that the offender owns or routinely operates -- but not vehicles owned by their employers and used solely for work, Sumner said.

The length of the time drivers have to use the device varies from two years to life, depending on the number of convictions.

It is illegal for offenders to have someone else to blow into the device.

By Paul Alongi, STAFF WRITER - The Greenville News - VIEW ORIGINAL ARTICLE

Drunk drivers have found a loophole in the state's legal system that allows them to keep driving while awaiting trial -- and they know all too well how to exploit it, police and prosecutors say.

Word on the street is "don't take the breath test," Greenville Police Chief Terri Wilfong said.

Drivers face automatic suspension for refusing to take a test that measures how much alcohol is in their blood. But if they win an appeal to the Office of Motor Vehicle Hearings, they can keep their licenses while their cases are pending.

Drivers had a nearly nine in 10 chance of getting their licenses back in 2007 if they challenged their suspensions, according to the state Administrative Law Court.

Authorities said defendants often arrive at the hearings with defense attorneys, while police almost never have legal representation because prosecutors don't have time to attend.

Sara Lee Drawdy, an assistant 13th Circuit solicitor, said defense attorneys use the hearings to get officers on the record and then employ the comments at trial to impeach their testimony.

"Some of the agencies around have told officers, 'Just don't go. It's better not to even go because you're vulnerable,'" Drawdy said.

Greenville defense attorney Steve Sumner said he's attended several hearings and that he doesn't see them as tilted toward either side.

"If you say, 'Look, Steve, I'm retaining you to represent me all the way through this thing,' I'm sure you'd expect me to be there," Sumner said.

Nearly 83 percent of the 3,629 cases were dismissed in 2007, mostly because officers failed to show up in court, said Jana Shealy, clerk of the Administrative Law Court.

Suspensions were rescinded nearly 6 percent of the time, while about 11 percent of suspensions were sustained, Shealy said.

The administrative hearings determine only whether defendants can keep their licenses while their criminal cases are pending. They don't decide guilt or innocence on the charge of driving under influence.

The burden is on law enforcement to prove that procedures have been followed, Shealy said.

Defendants who challenge their suspensions keep their licenses while waiting for their day before a hearing officer.

One of the five hearing officers is an attorney, while another has a law degree but hasn't been admitted to the state bar, Shealy said. All have at least seven years experience and are trained on recent case law and statutes, she said.

While Greenville authorities outlined their concerns in a City Council workshop, officers across the state are also concerned about the hearings, said Alisa Mosley, executive director of the South Carolina Law Enforcement Officers' Association.

An attorney who attends on behalf of police could object to improper questions and help lay the basis for suspension, Drawdy said.

But prosecutors said they can't make it because they are already dealing with demanding caseloads.

Greenville Assistant City Attorney Debra Gammons said she handled 17 DUI cases in October alone.

"It takes a great deal of time to do all of those," she said.

The city had 104 DUI cases in 2007 and 82 so far this year, according to the Greenville Police Department.

Sixty-three percent of DUI suspects pulled over in the city so far this year have refused to take the blood-alcohol test, an increase from 54 percent in 2007, according to the police department.

Prosecutors said that it can be tougher to get a conviction without a blood-alcohol reading.

Drawdy said it would take an additional staff member or an attorney working on contract to cover the license-suspension hearings for the Solicitor's Office.

"It is a state problem," she said. "It is something that should be addressed at the state level —funding to have attorneys represent officers at these hearings."

Mosley said she doesn't expect any new funding in these lean budget times.

"Right now, there are other things that take a higher priority," she said.

A state law that takes effect in February 2009 could help, prosecutors said. The suspension period will rise from 30-90 days to six-15 months, depending on how many offenses the defendant has.

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.