“Free at last, free at last, free at last.”
THOSE ARE NOT, as we might wish, the words of someone proclaiming that Martin Luther King’s dream had been finally and fully realized.
They are not, as we might expect, the words of someone who has just been released after being wrongly — or even rightly — imprisoned.
They’re not even the words of, oh, someone who has just retired from a job she hated.
They are the words of then-Rep. Ted Vick, who staggered around in the State House parking garage shortly before midnight, got into his truck, ran over a traffic cone, was stopped by a police officer who smelled alcohol on his breath, struggled with the officer, refused to take a breath test and was arrested for driving under the influence.
Mr. Vick made his victorious proclamation — absent the usual thanks to God almighty, who might not have arranged this particular result — after his lawyer, state Rep. Todd Rutherford, got a Richland County magistrate to throw out the charge because Mr. Vick and the police officer had wandered outside the range of the officer’s video camera when the officer read the representative his rights.
The good news is that Mr. Vick apparently didn’t rely on the Harrell Doctrine, which holds that courts must do everything they possibly can to ensure that state legislators are not held accountable for their actions. Nor is there reason to think he received any special treatment because he had the good sense to hire another state legislator as his lawyer.
And therein lies the bad news: Anyone who had the good sense to hire a lawyer would have been treated similarly. In South Carolina, that is.
You see, the magistrate didn’t do anything wrong in this case.
The General Assembly did.
The General Assembly passed the ridiculous law that contains more roadblocks to a DUI conviction than even Mr. Vick could run over.
You could think of our law as the DUI attorneys’ full-employment act. Criminal-defense lawyers couldn’t have done a better job for themselves if they had written the law. And, really, they did. There aren’t a lot of lawyers left in the General Assembly — in fact, I think we’d be better off with more — and only a few of them are criminal-defense attorneys. But when it comes to writing criminal law, their colleagues are more than deferential to them.
That is why we have some of the weakest DUI laws in the nation. And some of the nation’s highest DUI death rates.
You can make an argument that all police stops should be videotaped, and that’s what people increasingly are doing. But it makes no sense to single out DUI arrests for mandatory videotaping. It makes no sense to write the law in such a way that judges feel compelled to dismiss the charges if the suspect wanders off camera for a few minutes, or even a few seconds.
The law does have a little bit of wiggle room: Police can submit an affidavit swearing that they administered the suspect his Miranda rights, for example, if they didn’t have a video camera mounted in their vehicle. But judges have interpreted the law in the very strict way that the drunk-driver defenders in our Legislature intended for them to, and so police usually won’t even bother making a DUI charge if they don’t have a video recorder.
The video-recording mandate is a symptom of a much larger problem: Our Legislature refuses to treat driving with a high level of alcohol in the 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.
That sounds reasonable on its face, and in fact DUI lawyers love to argue that it’s necessary because it’s not illegal to drive with alcohol in your body, only to drive with too much alcohol in your body. And that certainly is true. But our approach to drunken driving is very different than the approach we take to other driving behaviors that are legal until they cross that line and become illegal.
For instance, 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 while it is perfectly legal to drive in South Carolina, it is not legal to drive that fast. It is illegal per se — on its face, by itself — to drive that fast.
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, making it a crime to drive with a blood-alcohol level of 0.08 percent or higher. But the law has so many stumbling blocks to trip up police that they 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 find the defendant not guilty. That means that someone who can afford an attorney often can convince jurors he wasn’t really drunk, no matter how drunk he was, or how dangerous he was.
Even though that 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. As Mr. Vick did, both in the State House garage incident and in an earlier incident in Five Points, for which he has not yet been tried.
That, in fact, is the first line of defense for drunk drivers. The videotape out is extra insurance that they don’t get convicted anyway.