LAST MONTH, a woman drove up to the valet stand at a downtown Charleston hotel, said she was there to get ice cream, declined to have someone park her car and then drove away when she was asked to park legally. When she returned two minutes later, pulled her car into the loading zone, again declined valet parking and said she was waiting for friends, the valet staff called police.
A police officer arrived on a bicycle and reported that the woman in the driver’s seat reeked of alcohol, had bloodshot eyes and slurred speech and staggered when he asked her to get out of the car.
It’s a convoluted story, in part because the woman was until that incident the director of Charleston’s bus system, but the important point is this: The officer didn’t charge the woman with driving under the influence. Instead, he charged her with the much less serious crime of disorderly conduct.
The Post and Courier reports that Charleston Police Chief Greg Mullen said it would have been too difficult to win a DUI conviction. The problem wasn’t that a reasonable person would have doubted that the woman was intoxicated and that she had been driving. The problem was that South Carolina’s DUI law doesn’t really care what a reasonable person would believe. Instead, and by design, it makes it ridiculously difficult to convict people of DUI.
The ostensible problem in the Charleston case was that the police officer’s bicycle wasn’t equipped with a video camera, so he couldn’t video the arrest, and police have pretty much determined that it’s a waste of time to bring DUI charges without that videotape, or even with a videotape where the suspect wanders off-screen for a few seconds.
But the underlying problem, the reason a perfect video is so important, is that our Legislature refuses to treat driving with a high level of alcohol in your bloodstream as a crime. As a result, police have to prove that the driver’s ability to drive was impaired, and defense lawyers get all sorts of opportunities to raise doubt about that.
On its face, that seems reasonable. But in fact, it is a dramatic departure from the rest of our traffic laws.
If someone gets clocked driving 100 miles per hour in a 55 zone, police don’t have to prove that he was endangering the public in order to win a conviction; they merely have to prove that he was driving 100 mph, because it is illegal per se — on its face, by itself — to drive that fast.
If someone drives through a red light, police don’t have to prove that he was endangering the public; he violated the law even if the streets and sidewalks were deserted for blocks. That’s because it’s illegal per se to run red lights.
Running red lights, speeding, driving the wrong way on a one-way street, even failing to use a turn signal — these are actions we consider dangerous enough that we don’t allow people to decide for themselves whether they’re good enough drivers to perform them safely. They simply are not.
The Legislature claimed to have written a law more than a decade ago that treated driving after drinking the same as speeding and running a red light and violating other traffic laws. But the 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 results of a blood test and conclude that the driver on the video is innocent because he just didn’t look drunk to them.
So police still use the old 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 a decent attorney can convince jurors he wasn’t really drunk, no matter how drunk he was. Or how dangerous he was.
The absence of a useable per se law isn’t the only problem, crime victims advocate Laura Hudson told me. Even though the law doesn’t require jurors to find drivers guilty if they have a certain blood-alcohol level, jurors still expect to see a blood-alcohol test result. But it’s so easy to get around the penalty for refusing to take a blood test that more than a third of drivers refuse to take one. The result is the same: Someone who can afford a decent attorney can convince jurors he wasn’t really drunk, no matter how drunk he was. Or how dangerous he was.
The Legislature took a big step forward this year when it finally, finally passed a law that requires repeat offenders and first-time offenders who have a high blood-alcohol content to have a device installed that prevents them from starting their vehicles after they’ve been drinking.
But those devices don’t get installed unless there’s a conviction. What this means is that we will get far less benefit out of the ignition-interlock law than we should until our state finally, finally joins the other 48 states that make it a crime to drive with a blood-alcohol level of 0.08 percent — regardless of how sober the driver might look to the untrained eye.
Ms. Scoppe can be reached at email@example.com or at (803) 771-8571. Follow her on Twitter @CindiScoppe.