DESPITE BEING allowed to plead to far lesser charges, despite being able to keep driving after his license was suspended, despite being poised to have that suspension lifted, there’s been nothing to suggest that 5th Circuit Solicitor Barney Giese has received any special treatment since Charleston police charged him with DUI last month. That’s what’s so outrageous about his case. It’s an in-your-face demonstration of how pathetically weak our DUI law is.
It’s possible that Mr. Giese was not drunk when police stopped him for driving the wrong way on Market Street, smelled alcohol on his breath and gave him four field sobriety tests, three of which he failed. But we’ll never know for sure because he refused to take the test that would tell us how much alcohol was circulating through his blood - and would have made a conviction at least theoretically possible if the number had been high.
Lawmakers told us this sort of thing wouldn’t happen after they “reformed” our DUI law last year - a law that had been “reformed” eight years earlier, and who knows how many times before that. But largely because of the overpowering sway that a minority of criminal defense attorneys holds in our Legislature, our DUI laws do far more to protect drunken drivers than the public.
The magic bullet of this latest “reform” was toughening up the automatic license suspension for people who refuse to submit to the breath test. The penalty was supposed to be so tough that even drunks would reason that it makes more sense to take a chance on getting a good score than face the certainty of losing the privilege to drive. But of course that provision was watered down. Instead of the one-year suspension proposed, we wound up with a six-month suspension.
That still might be an incentive to submit to the test - if it were real. It’s not.
The attorneys who make their living representing people in hearing convinced the Legislature that anyone whose license is suspended for refusing the test should have a right to contest that suspension at a hearing, as Mr. Giese is scheduled to do. And if you contest your license suspension, you get to drive with a temporary license until the hearing, which Mr. Giese is doing.
Now, it’s all good and fine to say that our concept of justice requires that we allow people to defend themselves (although a driver’s license is a privilege, not a right), but I can’t quite figure out what it is that someone in this position needs to be able to argue: That he actually did take the test, and police lied about it? That he wasn’t really stopped? The more I consider it, the more absurd the possibilities become. That is, unless the idea isn’t really to see that “justice” is done.
Last fall, The Greenville News reported that defense attorneys were using these hearings to try to trick police officers into saying something under oath that they could use to trip them up at trial, and get the underlying DUI charge tossed. Since solicitors can’t spare attorneys to attend license-suspension hearings to keep the police officers out of trouble, the paper reported, most officers don’t show up. And so in 2007, drivers got their suspensions lifted 83 percent of the time.
But even if Mr. Giese can’t convince the hearing officer to reinstate his license, another part of the law allows him to get a route-restricted license, so he can drive anywhere he can demonstrate he needs to go.
What all this means is that as long as a driver can afford the fees that go along with getting a temporary license and a route-restricted license and eventually getting his regular license reinstated, there is no reason in the world to submit to that breath test.
It gets worse.
Even if a driver submits to the breath test, even if he registers a blood-alcohol reading that’s higher than the alleged legal limit of 0.08 percent, there’s still no guarantee he’ll be convicted. Contrary to what the drunk-driver coddlers say, it’s not really illegal in South Carolina to drive with a blood-alcohol level of 0.08 percent - or 0.15 percent, for that matter.
We have something that masquerades as a per se law: It says it’s illegal per se to drive with a blood-alcohol content of 0.08 percent or higher. But that law is so shot full of loopholes that police won’t use it. One part actually requires a judge to tell jurors they can ignore the test results and conclude that the driver on the video didn't look drunk to them.
Instead, police use the old absurd law that makes it a crime to drive “under the influence” but doesn’t define that numerically, because at least that law doesn’t require the judge to beg the jurors to let the defendant walk. The result is predictable enough: Someone who can afford the best attorney can convince jurors he wasn’t really drunk, even though he would have caught on fire if someone lit a match near an open wound.
The defense attorneys and their friends in the Legislature argue that it’s downright un-American to make it a illegal to exceed some arbitrary number. That is, of course, hogwash. Not only because 48 states do this, but because it is standard practice for all the rest of our highway laws.
If we used the DUI standard for other traffic laws, a driver could argue that he didn’t actually break the law when he drove 101 mph, because he’s a really good driver - and the judge would be required to tell jurors to give that argument serious weight.
Little wonder we have some of the most deadly highways in the nation, year in and year out.
Barney Giese is one of the people who ought to be on the front lines demanding that the Legislature strengthen our pathetic DUI laws. Instead, he’s taking advantage of them.
Ms. Scoppe can be reached at cscoppe@thestate.com or at (803) 771-8571.
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