DUI law fails test

South Carolina authorities are alarmed that while traffic fatalities are declining in most states, in theirs it is rising. Studies indicate deteriorating roads and too few troopers are contributing factors to the deaths - conditions that can be fixed with more generous budgets.

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Another factor may be the state's phony per se driving-under-the-influence law. Since last year, that law calls for an automatic DUI conviction of anyone caught driving with 0.08 percent or more alcohol in their blood. Yet since then, there have been fewer, not more, DUI convictions.

The problem is, the per se law doesn't mean what it says. It is so loaded with loopholes that it can be challenged easily in court, and usually is. The accused may raise all kinds of unrelated issues, such as road conditions, and the judge is required to instruct the jury to rule "on the totality of evidence."

But in a good, not to mention workable, per se DUI law, the totality of evidence is supposed to be blood alcohol content, and nothing more - over the 0.08 limit and you're guilty. It's just like if you exceed the speed limit or run a red light, you're guilty - period. Road or other conditions that make for "loopholes" don't matter.

But South Carolina's law is so shot through with holes that prosecutors have largely given up on applying it. Instead, they find it easier to prosecute under the old DUI law, which leaves it up to jurors to decide whether someone was too drunk to drive. Prosecutors are asking troopers and police to write tickets under the old law as well. Clearly, there are simply too many escape hatches for the new law to work.

Some critics are charging that lawmakers, who weren't enthusiastic about imposing a blood alcohol limit in the first place, purposefully sabotaged the legislation. If true, then federal highway funds, which mandate a 0.08 blood alcohol limit, may be withheld from the state until the problem is fixed. Gov. Mark Sanford is pushing to remove the loopholes, and voters can help, too, during this election year by pinning their legislative candidates down on the DUI issue. Remember, drunken driving casualties often aren't the drunken drivers, but are sober, law-abiding drivers and passengers who had no idea they were in harm's way.

--From the Monday, August 23, 2004 printed edition of the Augusta Chronicle