Verdict Is Out On Whether DUI Reform Will Give Balance

By Attorney Steve Sumner
Originally published in The Post and Courier - Charleston, SC

Well, it's finally done. Recently, with much hard work and some cooperation exhibited by both political parties and the governor, the DUI reform bill is scheduled to become South Carolina law on Feb. 10, 2009.

In previous media coverage, proponents of the new law reportedly wanted stiffer penalties for repeat offenders and individuals with higher blood-alcohol readings. They also wanted a bill that was easier for law enforcement to implement and enforce. Others stressed the need to protect and maintain the basic fundamental rights of the persons accused, such as the right to trial by jury and the right against self incrimination.

Let's examine the highlights of the new law from both perspectives.

The proponents of the legislation achieved the following with the new DUI bill:

1. The mandatory jail and prison sentences for repeat offenders are much more severe. These mandatory sentences and fines drastically escalate based on convicted defendants' blood alcohol reading. For example, the potential maximum sentence for a second-offense conviction has increased from one year in prison to three years in prison. Likewise, the minimum sentence for a second offense with a blood alcohol of 0.16 or higher has increased from a minimum of five days of incarceration to 90 days.

   These same types of increases in punishment and mandatory fines have been applied to third and subsequent offenses as well. Those with three prior convictions now face up to seven years of incarceration and a mandatory minimum of three years if on a fourth violation, the blood-alcohol reading is 0.16 or higher.

2. Refusing to take a breath test also implements a more steeply tiered penalty system. For example, license suspensions range from six months for drivers over the age of 21 for first time refusals to 15 months for fourth or subsequent refusals to take a breath test.
3. The requirement for investigating officers to advise DUI suspects of their Miranda rights prior to offering field sobriety tests and breath tests has also been eliminated. Proponents of the new bill viewed the old requirement as a cumbersome requirement.

The rights of an accused in the process have been protected and maintained with the following provisions:

1. Those accused have the absolute and unabridged right to a jury trial on the charges and are presumed to be innocent unless proven guilty beyond a reasonable doubt in court.
2. Those charged with this offense can challenge the accuracy and credibility of the blood-alcohol readings or test results during a trial.
3. Those charged have the right at all times to decline field sobriety tests. Refusal to take field sobriety tests does not constitute disobeying a police command and is considered a valid exercise of constitutional rights.
4. Likewise, DUI suspects have the right at all times to refuse or decline breath tests.
5. During DUI arrests and investigation scenarios, the state is required to record a video of suspects' roadside conduct and during breath tests. This critical provision allows the jury to see and hear the interaction between the arresting officers and the individuals during arrests and breath test procedures.

The Legislature was one of the first in the country to require video recordings in these cases. The recording provides safeguards for the individual and the officers.

Only time will tell if this new legislation achieves the balance it appears to seek.