That should change in August when the court docket includes 24 pending driving under the influence of alcohol cases, said town prosecutor Duffie Stone, who is also an assistant solicitor. The town schedules drunken driving jury trials once every quarter.
Though proponents of the lower threshold hailed the law as a step forward when it took effect last August, Stone said he expects it to make convicting defendants harder. Still, he said he "won't know for sure until I start trying the cases in August."
He called the law "terrible" in its current form, a sentiment echoed by law enforcement officials and Mothers Against Drunk Driving.
"(The) technical aspects do nothing but give defense attorneys loopholes," Stone said. "I don't believe law enforcement was consulted before they got into the finer points of the bill."
The biggest problem, according to critics, is the requirement of reading a driver their constitutional rights before an officer performs any field sobriety tests. The law calls for a second reading of the rights, often referred to as Miranda rights, at a special site equipped with a breath-testing machine, where the driver is taken after the traffic stop.
This procedure gives a drunken driving suspect more rights than any other criminal suspect, including murderers, Stone said, and goes beyond what is required in the Constitution.
The field sobriety tests help an officer decide whether to make a suspected drunken driver take the breath test. It often takes an hour or more to bring the person to the room for the breath test.
Contrary to Hilton Head's town prosecutor, one local attorney with experience defending DUI clients said he strongly supported officers reading people their rights both during the traffic stop and in the testing room.
"I think that's a ridiculous criticism, that a trained law enforcement officer could forget to tell somebody their rights," Sam Bauer said. "That's a pretty low threshold for a trained, certified law enforcement officer to get to."
The blood alcohol limit has been lowered to a point where many of those considered too drunk to drive don't even appear intoxicated when they are pulled over, Bauer said. That, he contended, means more steps should be taken to protect the innocent.
MADD has supported legislation to remove the rights-notification requirement before field sobriety tests, but the bill didn't pass during the last legislative session.
"We're totally in favor of .08. It's the difficulty that it presents to the officer, having to go through the same steps twice," said Harry Ward, the state executive director of MADD. "A lot of cases are being dismissed because an individual hasn't been Mirandized."
Useful comparisons of conviction rates under the new and old laws will not be available until at least this fall, Ward said.
All states have now passed a .08 law. Minnesota's law will be the last on the books when it goes into effect in August 2005, according to MADD. When South Carolina passed its law last year, it was the 39th state to do so.
The .08 limit became federal law in October 2000, and all states that did not comply by Oct. 1, 2003, faced having 2 percent of their federal highway construction funds withheld, according to MADD.
States that do not comply will lose an additional 2 percent of highway funds each year until 2006. Passing the law before Oct. 1, 2007, allows the return of highway funds for states that did not pass the law before Oct. 1, 2003.
State Rep. JoAnne Gilham, R-Hilton Head, the .08 bill's principal sponsor, will not be seeking re-election in November. But she said that as a member of the public, she intended to lobby to change the Miranda requirements and other features of the law during the next legislative session.
She said she was disappointed that a bill seeking to do this did not pass last year and lamented a lack of determination among some state lawmakers to push for a tougher, more streamlined law.
"They don't seem serious about really cracking down on drunk drivers," she said. "This is really close to my heart and I sure hope I'll have the opportunity" to advocate change.
Sheriff P.J. Tanner said Miranda rights should only apply when somebody is in custody and being interviewed. Field sobriety tests are an essential part of an officer's investigation, coming before anybody is arrested, so the rights don't apply, according to the sheriff.
By reading someone their rights, the sheriff said you are in effect telling him or her to stay quiet. Also, when somebody has been drinking, they often are uncooperative and it can be difficult to read them their rights, he said.
But defense attorneys say a person should be read their rights if they are not free to leave or choose whether to take the sobriety tests.
"If you're free to leave without playing 'Simon Says' on the side of the road, then you don't have to have your Miranda rights read," Bauer said. "If the person is free to leave without doing the sobriety testing, then it's just an investigation."
Stone said he is exploring the possibility of having an on-call system where either he or an attorney from his office would be available at all hours to talk police officers on Hilton Head through drunken driving arrests.
Bluffton's clerk of court was out of town Thursday, but Bluffton Police Department investigator Pat Blankenship said it was too early to say whether the new law was making it more difficult for DUI jury trials.
Whatever the finer points of the law, the lowered blood alcohol level can put many people, especially smaller people, over the limit with just two drinks.
"It's not a good idea to have two drinks and get behind the wheel," Bauer said. "People go to dinner and have two glasses of wine and think that it's OK to drive -- not under the current law."
