Signed by the governor on June 19 and slated to go into effect on Tuesday, the new law makes a number of changes in how the state deals with motorists who drink and drive. The new law lowers the acceptable blood alcohol content limit and lays out stiffer penalties for repeat offenders.
But some say it still has problems.
Law enforcement officials say that even with the stricter blood alcohol limits, it will still be tough to get a conviction without the right enforcement equipment to gather evidence. Prosecutors think the evidence gathered may be too easy to challenge. Even one of the bill's principal sponsors admits the law now has too many loopholes.
The new law lowers the DUI blood alcohol content standard from .1 percent to .08 percent. It takes more than a couple of drinks to reach even the lower level. A 137-pound woman would reach a blood alcohol level of .08 percent after about three 12-ounce glasses of beer in an hour on an empty stomach, a 170-pound man after about four, according to the National Highway Traffic Safety Administration. Over a two-hour period, that same female would need four equivalent drinks to reach the .08 percent blood alcohol content level, the male about five.
But even a small amount of alcohol can impair driving significantly, according to figures from the Insurance Institute for Highway Safety. The risk of being killed in a single vehicle crash for drivers with BACs between .05 percent and .09 percent is 11 times that of drivers with no alcohol in their system, according to the institute.
Another change in the law applies to second and subsequent DUI offenses. A 30-day suspension of the vehicle registration and license plates is mandatory on a second offense -- and that's above and beyond the mandatory one-year license suspension for a second offense.
The alcohol limits and penalties also apply to those who operate a watercraft or a firearm.
Still, there were other reasons for changing the law, including financial incentives for the state. Without the lower blood-alcohol threshold and increased fines for repeat offenders, the federal government would have withheld about $138 million in highway improvement funds over the next four years, said Robert Kudelka, a spokesman for the S.C. Department of Transportation.
Had the state not enacted the .08 percent threshold, the federal government would have withheld $10 million of the $500 million allotted annually for the Statewide Transportation Improvement Plan, Kudelka said. The amount withheld would have gone up to $20 million in 2005, $30 million in 2006, $40 million in 2007, and so on, he said. And, without the stiffer penalties for repeat offenders, the state would lose a flat $9.5 million each year, Kudelka said.
Though the law gets tougher against those who drink and drive, Beaufort County Sheriff P.J. Tanner and Deputy Solicitor Steve Knight say the changes won't do much good until law enforcement and prosecutors have the right equipment to gather evidence against drunk drivers. Specifically, they say every police car needs to be equipped with video cameras to gather evidence.
The cameras, they say, are crucial for convictions for concentrations near the new blood alcohol limit, or even the old level.
"With the old law, it's tough to get a conviction for a .1 (percent) blood alcohol level. With a .08 (percent), it's going to be tougher without the in-car video camera taping the traffic incident itself," Tanner said.
The cameras help because police then would have a video record to show jurors what the driver was like during the stop and even how he was driving before the stop, Tanner said.
"Without the in-car video the jury doesn't have the opportunity to see the driving of the defendant, and this is the first indication to the officer that something is wrong. This is the probable cause to the officer," he said.
Knight agreed, saying the video cameras provide the best evidence to prosecute DUI cases.
"Give me video cameras in every car," Knight said. "To me, this is more important than lowering the threshold."
But very few cars have the equipment. Of about 400 S.C. Highway patrol cruisers, only about half have cameras, according to the S.C. Department of Public Safety. Tanner says that of his office's 100 patrol cars, only eight have cameras. In Bluffton, just one of 13 cruisers has a camera, Chief John Brown said.
While the new law lowers the blood alcohol content threshold, it also requires police to read drunken driving suspects their Miranda rights before field sobriety or blood-alcohol tests are administered -- a requirement that has critics worried that a new loophole has opened. But supporters of the law say it closes a loophole because DUI defendants won't be able to say they weren't told their rights.
Whether and when to read Miranda rights is an issue in every case, State Sen. Brad Hutto, D-Orangeburg and a defense attorney, said. The change clarifies when officers should notify DUI suspects of their rights, he said.
Upstate prosecutor Bob Ariail said the change "will have the end result of thwarting law enforcement's efforts to detect those people who are driving on the highways under the influence. ... I suspect that's exactly what it was intended to do."
Ariail said making an officer read Miranda rights before asking a motorist to walk the white line or touch his finger to his nose is irrelevant and confusing because no questions are being asked. At that point, "the defendant doesn't have a right to a lawyer, so advising him he's got a right to a lawyer is irrelevant," he said.
Officers usually don't read a suspect his rights until he's sober, Ariail said. The 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.
The new law also makes it possible to discard videotaped evidence if the accused is not read the Miranda rights before the test or if a blood alcohol test is not administered within two hours.
Rep. JoAnne Gilham, R-Hilton Head Island and the bill's principal sponsor, said she believes the law, in the form in which it was passed, leaves too many loopholes. Still, she says the law is scientific and has a proven track record of saving lives in other states.
"We have an atrocious DUI record in this state and something needed to be done," Gilham said. "It was a good bill that could save lives."
