“Drunk driving” has become a national problem which has received a great deal of focus and attention of late by news organizations and state legislatures. Because of the carnage that truly impaired drivers have caused on the roads, laws around the country have been repeatedly amended to include harsher and harsher punishments with each new change. “Driving under the influence” (DUI) laws in South Carolina are certainly tough but are also fair. As an experienced SC DUI law firm, we understand the serious dangers of truly drunk drivers behind the wheel. However, we also recognize and appreciate that our clients are individuals who simply had a drink with dinner or a few beers with friends. They are fine to drive but have been caught up the current DUI quest to seemingly arrest anyone with “alcohol on their breath.”
Whether you were born here in Charleston or are just visiting, you have already given your “implied consent” by driving to submit to chemical testing of your breath, and even blood or urine under certain circumstances, to determine the percentage of alcohol and/or drugs if arrested for DUI. If you refuse, your license or driving privileges will be automatically suspended for six (6) months, subject to challenge. Once charged, you have 30 days to request a hearing to contest your license suspension. If found guilty or plead to DUI, your license or driving privileges will be suspended for an additional six (6) months.
To be convicted of a DUI charge in SC, the prosecution must prove you guilty beyond a reasonable doubt of driving any motorized vehicle while under the influence of alcohol and/or drugs where you are “materially and appreciably impaired.” In certain cases, the officer may elect to charge you with “driving with an unlawful alcohol content” (DUAC). Impairment can be from alcohol (beer, wine, liquor, straight alcohol), or drugs (prescription or illegal), or a combination of both. The “legal limit” in SC is 0.08%. However, even if you “blow” below that presumptive amount, the State may still decide to prosecute you unless your BAC level is 0.05% at which point you are statutorily presumed to NOT be impaired to drive.
SC law presumes you are “impaired” if you have a “blood alcohol concentration (BAC)” of 0.08% or greater. This finding is sometimes referred to as a “per se DUI.” This level can be determined by a breathalyzer test, or if you cannot complete that test, by blood or urine tests. Again, your consent is “implied” if you drive in SC, even if you are from somewhere else. Simply getting behind the wheel and driving is all that is required. However, try not to panic or assume you are automatically guilty if arrested and charged with DUI, DUAC, or BUI. There are many defenses available to you under SC law. In fact, there are three (3) aspects of SC law that makes our State unique. First, ALL police vehicles are required to have in-car video. Secondly, you have a right to a jury trial (even for first offense). And thirdly, our laws mandate certain actions and requirements of the police. If not followed, evidence can be suppressed, and cases can be dismissed for statutory violations. For example, if the arresting officer does not advise you of your Miranda rights in full view with both video and audio recording, that may be enough to ask a judge to dismiss your charges.
Mandatory Video Evidence
Before video, officers would complete written reports with their descriptions of a suspect’s behavior at the roadside. The language was fairly similar in all reports. Even today, we see standard language such as ” the suspect had a strong (or very strong) odor of alcohol on or about their person.” Police officers only speak this way when discussing DUI arrests. In real life, they just say “I smelled alcohol.” In the same regard, we used to read about a DUI suspect being very unsteady while walking and slurred, incoherent speech. Police are trained to include such statements for maximum jury impact. At trial, it was a “he said, she said” situation, and juries almost always side with the police in these circumstances. With video, all that has changed and for the better.
Video evidence eliminates all questions and speculation. It is there for everyone to see for themselves. Jurors don’t have to rely on statements or descriptions by police or criminal defense lawyers. It either is or is not. In fact, those individuals at trial who try to misrepresent described conduct can easily be discredited if not seen in the video. Our approach is let the jury see and evaluate a video for themselves. We will highlight during questioning and in closing arguments those portions of video that aid our client. Of course. Trial experience has taught us it is always best to let the jury draw their own conclusions after guidance. Otherwise, they may react negatively if they perceive a lawyer is trying to manipulate what they can decide for themselves. This is where jury trial experience comes into play. Lesser experienced lawyers can easily fall into the trap of being “too strong” and come across as overbearing or even demanding. We lead juries to those parts of the case that permit them to reach our conclusions in their own way. In the end, everyone just wants the truth in a fair, impartial setting.
There are typically two areas of video evidence – roadside and breathalyzer room. At the roadside, jurors will be able to observe the police car initiating the stop and see what drew the officer’s attention. Depending on how long the police car follows a DUI suspect, the video may show “bad driving” (swerving, abrupt lane changes, speeding, even reckless driving) or just the exit to the side of the road. Next, the arresting officer will be seen asking the usual questions about “how much have you had to drink tonight” as well as any Field Sobriety Tests (FST) performed. The standardized tests, as prescribed by the National Highway Traffic Safety Administration (NHTSA), include the Horizontal Gaze Nystagmus (HGN), “walk and turn” (WAT), and “one leg stand” (OLS). Other non-standardized tests may include reciting the alphabet or counting backwards. Some officers have even concocted their own “divided attention” tests. After being arrested, DUI defendants are then taken to the police station and offered a breath test which is also video recorded in full. Each of these videos will contain critical information and evidence which can be effectively used to defend a DUI charge. With proper training and experience, seasoned DUI attorneys will often find one or two “defining moments” in the videos that can be argued in closing at trial to secure an acquital by a jury or dismissal by a judge.
Right to Trial by Jury
Without a doubt, jury trials are the last true hope for fairness. Judges are individuals, and each of us have our own views and prejudices. Pandering aside, we have some of the brightest, most fair judges in the State here in Charleston. The desire to live in this part of the country attracts the best talent. Nevertheless, the collective wisdom of six or twelve jurors helps to minimize or even eliminate the bias of individual members. Both the State and the criminal defense attorney are given the opportunity to learn about the jurors before selection, and each side is given a number of “strikes” to use in order to get the best possible jury for a case. Real courtroom experience and trial tactics come into play here at this critical stage of a case. Then, throughout the trial, a lawyer’s demeanor and presentation are often key to a decision, good or bad. Our lawyers have years of experience in trying cases, both civil and criminal. We have developed an assured but comfortable style of trying cases which communicates confidence and competence, but not arrogance. No one likes a condescending, offensive attorney. The case is about you, the client, not the lawyer.
Proper Police Procedure
In evaluating video evidence, our lawyers not only look at how our clients appear but also what procedures are followed, or not followed, by the arresting officer. For example, SC DUI laws require officers to maintain video equipment so that it is available for review after a DUI arrest. If video is not available, the officer must complete a sworn affidavit as to why it is not in working order. Similarly, a person being taken into custody must be advised of his/her Miranda warnings in full view (and audio) of the in-car camera. Back at the station, suspects must be advised of the Implied Consent laws, have their mouths checked, and then offered a breathalyzer after a full twenty (20) minute waiting period. During each of these videos, both the prosecutor and defense attorney will evaluate overall conduct by a DUI suspect for jury presentation. Each side will highlight those portions of the evidence which favors their position. Of course, the jury will ultimately decide after drawing their own conclusions from watching the videos and listening to the other evidence presented. However, in the proper hands, seemingly insignificant details on the video can allow for a Motion to Suppress or Dismissal for legal error.
We offer our experience to those individuals arrested and charged with DUI, DUAC, BUI, and Felony DUI. We defend our clients throughout Charleston County and Berkeley County, including Charleston, North Charleston, Town of Mount Pleasant, James Island, Daniel Island, Johns Island, Edisto Island, Sullivans Island, the Isle of Palms, Folly Beach, Goose Creek, and Summerville.
We would be honored to have an opportunity to meet with you and personally review your case. Call us now for answers. You can reach Robert Reeves directly by calling 843-901-0380 mobile. His personal email is Robert@RJRlaw.com.