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DUI case points to another problem with South Carolina law

Editorial from The Post and Courier, July 26, 2021

The most obvious thing to say about Charleston City Councilman Harry Griffin’s driving under the influence charge that was dropped last week is that he wasn’t exonerated. Whether he was a lucky DUI lottery winner or was unfairly stripped of the right to prove his innocence is something we’ll never know.

Fortunately, that’s not the most important thing about this case.

The most important thing about this case is that it highlights one more problem with South Carolina’s inebriation-friendly DUIlaw.

Mr. Griffin was arrested on May 29 when the Berkeley County Sheriff’s Office stopped him at a sobriety checkpoint and smelled alcohol on his breath. After initially telling deputies he hadn’t been drinking, he said he had “only one” drink. Then he refused to take a field sobriety test or a Breathalyzer test.

And as The Post and Courier’s Gregory Yee reports, the deputy who arrested him decided to get out of law enforcement before the case came to trial. Since Mr. Griffin’s refusal to take any sort of sobriety test meant the only evidence against him was the deputy’s video and testimony, the charge was dropped.

Unfortunately, this sort of thing is “a very common problem,” according to Steven Burritt, executive director of South Carolina Mothers Against Drunk Driving. Mr. Burritt told us that the high turnover rate among police officers in many S.C. agencies “creates a level of jeopardy for the cases they made that have not been adjudicated.”

Police are able to preserve most criminal cases, which rely on evidence beyond an officer’s observations, but other cases are usually dropped.

What does this have to do with our driving under the influence law?

First, our DUI law incentivizes people to do what Mr. Griffin did and refuse to take a sobriety test. A state law that should discourage this says drivers who refuse to submit to a test of their blood alcohol level automatically lose their license for six months, on the spot, even before a trial.

Unfortunately, this smart law has an insane provision that allows people to go down to the DMV and get a temporary license to drive while their permanent license is suspended. That’s right: It completely undercuts the intent of the law. That’s why more than 40% of people stopped for drunken driving in South Carolina now refuse to take a test. So the only evidence against them is the arresting officer’s word.

(The S.C. Senate passed a bill this year that requires people with suspended licenses to have an ignitioninterlock device installed on their vehicles before they can get a temporary license. That wouldn’t take away the incentive to refuse the test, but it could stop people from driving drunk until their case eventually is heard. Unfortunately, the House refused to consider the bill.)

But even when people submit to a blood alcohol test, the cases are still dropped when the arresting officers move on unless their agencies send another officer to court to prosecute. And they usually don’t, because the many loopholes in our DUI law make convictions unlikely. Loopholes like, for instance, the one that makes it nearly impossible to win a conviction if the suspect wanders out of range of the officer’s dashcam for even a few seconds.

Precisely because all those loopholes make DUI cases so complicated, there’s a good chance that a trial will be delayed. That increases the chance that the officer will be gone by the time the case is tried. The best way to fix this problem is for the Legislature to fix our DUI law: to change the mother-may-I dashcam video requirements and eliminate the incentives to refuse blood alcohol tests. It’s to provide funding so prosecutors rather than police try these highly technical cases; to provide funding for our courts so the wait for a jury trial isn’t so long; and to require better training for magistrates, who usually know much less about the law than the defense attorneys appearing before them.

All of that would make DUI cases seem more winnable to police and would make driving under the influence seem like a riskier choice to drivers.

But even absent legislative action, there are other steps that can help reduce the departed-officer problem — and a host of other problems with DUI cases.

Judges can be more skeptical about defense requests for trial delays. Most of us might have been unaware of the problem with departing officers, but MADD and other organizations have documented that the odds of winning a DUI conviction go down every day a trial is delayed. You can be sure that DUI attorneys know that, too.

And police agencies can send another officer to prosecute DUI cases when the arresting officer has moved on, and the agencies can ask (or require, through subpoenas) departed officers to return and testify in some cases.

This is about a lot more than holding the occasional politician accountable, or simply winning a conviction. It’s about saving lives. One reason so many South Carolinians are injured and killed by drunken drivers is that our state doesn’t take drunken driving seriously enough. That’s mostly the fault of the Legislature, but even with the laws we have, everybody in the criminal justice system has an opportunity to recognize and treat drunken driving as the deadly crime that it is.