Four years after S.C. lawmakers passed what they touted as a historic DUI law, police and prosecutors are all but ignoring it, preferring to bring charges under an older drunken-driving statute.

The reason: The newer law, they say, has no teeth.

After more than a decade of lobbying from highway-safety activists, lawmakers voted in 2000 to have South Carolina join 48 states with a legal limit for alcohol in a driver’s system. They agreed on a limit of 0.10, and last year lowered it to 0.08.

But highway safety advocates say lawmakers foisted a sham on the public.

The legal limit, they say, isn’t a legal limit at all.

Drivers get to raise an array of defenses based on factors other than how much alcohol they had in their blood. They can claim the arresting officer didn’t properly advise them of their rights. Or they can claim they don’t look drunk on the trooper’s videotape.

The law also gives drivers an incentive to refuse being tested. While a conviction for driving over the legal limit carries a six-month loss of driving privileges, refusal to take a test means only a 90-day suspension.

“It’s lucky that the people who wrote this law didn’t write our murder statute, or nobody would ever be convicted of murder,” said Val Valenta, an attorney with the S.C. Department of Motor Vehicles.

South Carolina’s roads are more dangerous than ever. The state had the second-worst alcohol related traffic death rate in the nation in 2002, nearly double the national average. Additionally, drinking was a factor in 52 percent of S.C. fatal wrecks, up from 37 percent in 1998.

The law was well-intended, said Barney Giese, the Columbia-area prosecutor and president of the statewide prosecutors’ association. “But once it got into the legislative process,” he said, “it turned into a monster.”

Lawmakers who pushed unsuccessfully last year for a stricter law say they were stymied by an alliance of libertarian-minded colleagues and defense attorneys. A tough bill passed the S.C. House and was supported by a majority of senators, but opponents used the Senate’s labyrinthine rules to hold the bill hostage and force sweeping concessions that critics say effectively rendered it toothless.

“We could have stopped the bill altogether,” said Rep. JoAnne Gilham, R-Beaufort, one of the original supporters, “but the fact is we needed that (0.08 standard) in place in this state, and we also didn’t need to lose federal construction money that was attached to it.”

But Rock Hill-area prosecutor Tommy Pope said, “It’s almost like to get the point zero eight, a deal with the devil was struck. So much burden was placed on law enforcement beyond the normal requirements of law.”

Pope said, “I’m not talking about protecting defendants’ rights; that should happen. But it appears that written into the statute are so many things that aren’t actually designed as protections, but are really designed as escape hatches to avoid prosecution.”

Even though the law says it is illegal “per se” to drive with a blood alcohol level of 0.08 or more, it then says a person is entitled to a jury trial at which they are allowed to present evidence of their driving and of the amount of alcohol they consumed.

“If it’s just flat illegal to drive with 0.08 in your blood, what is the relevance of how many drinks you’ve had, or how well you were driving?” said DMV attorney Valenta.

Trey Gowdy, chief prosecutor for Spartanburg and Cherokee counties, said the per se law makes prosecution so onerous that he advises law enforcement officers to ignore it, and instead bring charges under the older law that says juries may consider a blood alcohol reading — formerly 0.10, now 0.08 — as an “inference” that the person was under the influence of alcohol.

Prosecutors in other jurisdictions echoed Gowdy’s sentiments.

“With the loopholes and the extra elements you have to prove, it makes no sense to charge anybody under that statute,” said Giese. “I can’t imagine a situation where my office would choose to go under the per se statute rather than the DUI statute.”

Although no statewide records exist for first offense and some second offense DUI cases, which are tried in magistrate and municipal courts, repeat-offense cases in S.C. Circuit Court show a clear pattern that illustrates what prosecutors are saying.

From Jan. 1, 2001, when the per se law went into effect, until March 31 of this year, the per se law was used 79 times in Circuit Court.

The old DUI law is still on the books. And under that law during that period, there were 8,709 cases. Two-thirds of those charges ended in guilty pleas. Most of the rest were either dropped by prosecutors or sent to a lower court. In the 105 that resulted in a Circuit Court trial, juries found defendants not guilty nearly half the time.

State troopers are also bypassing the new law, data from the S.C. Highway Patrol shows. From Jan. 1, 2001, to July 15 of this year, troopers wrote 728 tickets charging drivers with violating the per se law, but 32,205 tickets under the old DUI law, which leaves it up to jurors to decide whether someone was too drunk to drive.

Highway Patrol commander Col. Russell Roark said one reason for the huge difference in the numbers is that the per se law bars law enforcement from charging drivers stopped at checkpoints.

But a far bigger reason, he said, is that prosecutors and the Highway Patrol’s own legal counsel have warned troopers away from the per se law.

In a DUI trial, if the driver’s lawyer manages to get the blood alcohol results excluded, the case can still be prosecuted using other evidence.

But if test results are thrown out in a per se case, Roark said, “then you’ve lost everything; there’s no method by which you can proceed.”

Under the per se law, officers must administer the blood alcohol test within two hours of the arrest — a problem when the arrest is in a remote part of a large county, and even more so if there’s a wreck involved.

The new law also requires that in all drunken driving arrests, whether under the old DUI law or the per se law, officers must read the person his Miranda rights twice — once before giving him a roadside sobriety test, and again before checking his blood alcohol level on a machine called the BAC DataMaster.

Prosecutors say that no other criminal act in the state requires two Miranda warnings.

“A defendant in a drunken driving case under that statute is given more rights than, constitutionally, murder defendants have,” said Pope. “It requires so many tedious steps, any one of which result in a dismissal.”

Unlike the laws in other states that make it illegal to drive with a blood alcohol concentration of 0.08 or higher, South Carolina adds a list of other factors that a jury can consider. These include:

Videotape evidence of the person’s conduct at the arrest scene and when the DataMaster test is administered

Evidence of sobriety tests given by the arresting officer

“Any other evidence of the state of a person’s faculties to drive which would call into question the results of a breath or bodily fluid test.”

Although those same arguments can be raised in a case brought under the old DUI law, the new law says drivers can demand that the judge read them to the jury. The judge must also instruct jurors that “the totality of the evidence produced at trial may be used by the jury to determine guilt or innocence.”

In its most recent national report card, in 2002, on states’ anti-drunken driving efforts, MADD gave South Carolina a “D.” The situation hasn’t improved since then, said Nick Ellinger, MADD’s director of state legislative relations.

One glaring weakness in S.C. law, prosecutors say, is that while a first-offense conviction for drunken driving carries a six-month drivers’ license suspension, a person who refuses to take a blood alcohol test gets only a 90-day suspension — and can then be granted a provisional license allowing him to drive to work or college.

South Carolina is one of only 14 states where the penalties for refusal to be tested are less than the penalties for conviction.

As a result, said Barry Barnett, an assistant prosecutor in Spartanburg, “A lot of defense attorneys are telling their clients not to take the test.”

Another example where a tough-looking provision in the S.C. law turns out to be hollow is the requirement that drivers who register a 0.15 percent blood alcohol concentration automatically have their license revoked on the spot for 30 days. But S.C. law provides for an appeals process, during which time the person can continue driving. Even if the appeal is denied, the driver can still get a “route restricted” license.

The primary leader in blocking strict drunken driving legislation was Senate president Pro Tempore Glenn McConnell, R-Charleston, whose position, as well as his encyclopedic knowledge of Senate rules, makes him the most powerful figure in the 46-member body. He said supporters of a 0.08 per se standard were “declaring war on social drinkers.”

McConnell argues that per se laws and administrative license revocation turn the legal system on its head. “Ultimately, people have to have the right to defend themselves,” he said.

Not everyone is under the influence at 0.08, McConnell said. “In fact, a lot of people are not under the influence at 0.8, and it doesn’t impair their driving.”

He said, “Alcohol affects different people in different ways, and people ought to have an opportunity to make their case to the jury as to whether or not they were under the influence.”

On average, 0.08 is the level a 170-pound man would reach after drinking five 12-ounce beers in two hours and the level a 120-pound woman would reach after drinking three 12-ounce beers in two hours, according to the National Highway Traffic Safety Administration.

Studies cited by the NHTSA conclude that all drivers can be expected to experience impairment in some driving-related skills by 0.08.

Sen. Wes Hayes, R-Rock Hill, a longtime advocate of cracking down on drunken drivers, said two factors make it difficult for South Carolina to pass meaningful anti-drunken driving laws.

“The rules of the Senate make it fairly easy to block changing the law, and we’ve got a strong strain of libertarian thinking that’s against big government telling people what to do,” he said.

At the same time, Hayes said, “There are a lot of us who feel very strong about this, and I think a lot of citizens feel very strongly as well. They don’t like hearing that our highways are less safe than other states, and they rightly hold the General Assembly accountable for not dealing with it. So I think it’s going to be a continual battle.”