Miranda rule in DUI law sparks debate

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The new law, inserted in the same bill that lowered the maximum legal blood alcohol content to .08, has been hailed by its supporters as a way to prevent cases from being thrown out because the officer didn't make suspects aware of their constitutional rights.

Critics, however, said it will have the opposite effect.

"It will have the end result of thwarting law enforcement's efforts to detect those people who are driving on the highways under the influence," said 13th Circuit Solicitor Bob Ariail. "I suspect that's exactly what it was intended to do."

Requiring officers to read suspects their Miranda rights before administering a sobriety test and before the Datamaster breathalyzer test gives defense attorneys a way to have a case thrown out on a technicality if it isn't done, said Ariail and Donna Carter, state chair for MADD South Carolina.

"That's what certain ones in the General Assembly wanted," Carter said. "It's just another way to water down a good bill."

Proponents deny the accusations and stand by their beliefs that it will be beneficial to both officers and drivers.

Sen. C. Bradley Hutto, who is also a defense attorney, said whether and when to read Miranda rights is an issue in every case. This law clarifies when officers should notify DUI suspects of their rights, he said.

"Obviously putting the blue light on and pulling them over, that's not enough," he said. "But at some point during the process it does become enough, and where's that line?"

Richard Seamon, a professor of law at the University of South Carolina, said whether a person has a right to an attorney during a traffic stop is a gray area. He said the law is a good idea because it never hurts to notify citizens of their rights.

"I don't think it's going to be a serious obstacle for law enforcement," he said. "It's another technicality, granted, any time you make police do something extra and they don't do it then you're probably going to have some good lawyers getting people sprung for that, but that's the tradeoff."

Ariail said he anticipates that more people will refuse to agree to the sobriety test or the Datamaster.

A first refusal is a three-month license suspension. A second refusal is a six-month license suspension. Some states make it a crime to refuse.

Anderson Defense Attorney Ronnie Cole said the number of refusals has increased in every state that passed the .08 law.

"It is going to help the cops' case as much as it can hurt the cops' case," he said. "A lot of people are just plain stupid, they talk to the cops. Even after they're Mirandized they still think they need to talk to the cops."

Hutto said the issue was causing confusion in jurors minds and courtrooms. He said this now protects officers.

"Right now, if you don't have a great defense you can always argue that his rights were violated," he said. "This way, if he's given all of his rights, you don't have that defense."

Hutto said this law will remove the guesswork for police officers or magistrates. "Even the Supreme Court says a clear-cut line will be the best way to handle this," he said.

Ariail said the primary focus of Miranda is to let them know that they have the right to an attorney before he is questioned. Making an officer read it before asking a motorist to walk the white line or touch their finger to their nose is irrelevant and confusing.

"Since there is no questioning going on in either one of these situations — either the Datamaster or the field sobriety test — the defendant doesn't have a right to a lawyer so advising him he's got a right to a lawyer is irrelevant."

Ariail said it's also odd because normally officers won't read a suspect his rights until they have sobered up.

"Miranda warnings are not valid if the defendant is intoxicated because he can't intelligently waive his rights to counsel if he's intoxicated," Ariail said. "Here the legislature has imposed this requirement that we advise this person who the police suspect is intoxicated, and we're supposed to give him his Miranda warnings. It doesn't make any sense."

Cole disagreed with Ariail.

"That proves as a problem because if I'm a cop I can sit there and ask you a thousand questions," he said. "Whereas if you were suspected for shoplifting I'd have to Mirandize you."

The representatives who co-wrote the House bill say they disagree with the Miranda provision but felt getting the .08 law and millions of federal funds was important enough to move ahead.

Cole, who co-wrote legislation that makes it mandatory to videotape, said that once the law passes, suspects will be allowed to talk or attempt to talk to an attorney in a reasonable amount of time.

Rep. Gilda Cobb-Hunter, D-Orangeburg, said safety and fiscal considerations were the priorities behind the bill. "It sounds like the solicitor has identified a problem that, quite frankly, I don't recall any discussion about."

Cobb-Hunter said she feels the state's laws have been strengthened.

Rep. JoAnne Gilham, R-Beaufort, wrote what she and Rep. Phil Sinclair, R-Spartanburg, felt was a tough DUI law that included the change to .08 and several other provisions.

Gilham said the legislation was filed before the session began.

"This was very well orchestrated and it bothers me tremendously that the bill was changed in so many dramatic ways, at the 11th hour, so to speak," she said.

The bill met resistance from Senators who were unhappy about being forced to accept the change to .08 or lose millions of dollars in federal highway money.

"It is not what the house wanted, I'll be honest with you, the bill was a lot less than what we anticipated or hoped for," Sinclair said.

Sinclair, an attorney, said he's opposed to the Miranda provision because it places undue emphasis on the reading of the rights.

"In most every other criminal statute there is, there is no provision that says the police must do this, this, this and this," he said. "It's sets up potential defenses."

Sinclair also questioned how reading the Miranda rights pertained to most DUI situations, given that most of the evidence is observed.

"In most DUI cases, the evidence about whether or not a person is driving under the influence comes from videotapes, what the person looks like, sounds like, smells like and finally, the results of the Datamaster test," Sinclair said.

"Most folks don't admit they're under the influence."

Sen. Larry Martin said the reason to read Miranda rights is to protect against cases being thrown out.

"If there's a problem with this I'll certainly be amenable to hearing from them and putting something in in January to correct it," he said.

The alcohol-related traffic death rate in South Carolina was the worst in the nation in 2001, at more than twice the national average, according to the Department of Public Safety.

Highway Patrol Col. Russell Roark released a written statement to The Greenville News that says the patrol's policy is to respect the constitutional rights of citizens by issuing Miranda warnings during a traffic stop when the motorists' statements could be used against them in court.

"The General Assembly has placed into legislation specifics about how and when the Miranda rights should be used during the course of a DUI traffic stop," Roark's statements says. "Like other changes that have come about as a result of lowering the BAC to .08, we will incorporate that new guideline into our policy and procedures for making these traffic stops."

Greenville County Sheriff's Sgt. James McCann said there are many questions that won't be answered until after the law goes into effect.

"We feel that is definitely going to be a challenge to law enforcement especially to the Sheriff's Office," McCann said. "Will individuals that we stop for possibly driving under the influence, will they understand the Miranda warnings if they're under the influence of alcohol or other narcotics?"

Ariail said South Carolina has the worst DUI laws in the country and they're just getting worse.

"Our DUI law and all of the requirements that go with it in this state resemble the IRS code," Ariail said. "Rather than any semblance of an effort to really legislate to control DUI, it's technicalities on top of technicalities that are really aimed at aiding a defendant at avoiding prosecution."

Senators said they are surprised to hear about the controversy now because in the committee meetings there was hardly any discussion about it.

Andy Paras covers courts and crime. He can be reached at 298-4220.