Posted on Tue, Nov. 28, 2006

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Tiered penalties for DUI revisited

Group re-examines plan that would base sentences, fines on drivers’ blood-alcohol levels

By RICK BRUNDRETT

rbrundrett@thestate.com

Law enforcement and defense attorneys sparred Monday over parts of a proposal that would replace the state’s existing DUI laws.

Jeff Moore, who heads a subcommittee drafting proposed legislation, said he would present recommendations today to the full S.C. Impaired Driving Prevention Council.

The council, created in 2004 by the S.C. Department of Public Safety, is reconsidering a bill that would create a tiered system of penalties.

Under the plan, sentences and fines would be based on a driver’s blood-alcohol level: The higher the level, the stiffer the punishment. The bill was first introduced in the S.C. House in 2005 but didn’t go anywhere.

If the council approves the plan and a state lawmaker sponsors it, a new bill could be pre-filed next month.

Critics say existing DUI laws have too many loopholes. Gov. Mark Sanford last week called for tougher legislation to combat drunken-driving fatalities.

Three of the state’s most prominent DUI defense lawyers — Ronnie Cole of Anderson, James Huff of North Augusta and Reese Joye of North Charleston — were asked to help the subcommittee draft proposed legislation.

They spent five hours Monday going over each section of the 22-page 2005 bill, which was introduced by state Rep. Jim Harrison, R-Richland, and then-House Speaker David Wilkins.

“Our position is we don’t want a machine to be judge, jury and executioner,” Cole said.

Under the illegal per se law, it is illegal to drive a motor vehicle with a blood-alcohol content of .08 percent or more. Critics say the law is weak because it allows jurors to disregard the test results and consider other evidence.

“I think it undermines and circumvents what NHTSA (National Highway Transportation Safety Administration) intended,” Moore, executive director of the S.C. Sheriff’s Association, said during Monday’s meeting.

Under a proposed compromise, defense attorneys could continue to introduce other evidence of impairment, though judges no longer would be required to specifically tell juries to consider it.

Under the 2005 bill, penalties would have been tied to three blood-alcohol levels: .08 percent but less than .10 percent; .10 percent but less than .16 percent; and .16 percent or more.

Maximum penalties, not including fines, would have ranged from 30 days in jail for a first offense at the lowest level to seven years in prison for a fourth or subsequent offense at the highest level. The current maximum sentences range from 30 days for first offenses to five years for fourth and subsequent offenses, no matter the blood-alcohol level.

The defense attorneys didn’t object to the proposed stiffer punishments, though Joye predicted it will result in more trials and fewer pleas.

Defense lawyers and some subcommittee members disagreed over whether a new law should make it illegal to operate a motor vehicle while impaired, as opposed to driving while impaired.

The 2005 bill substituted the word “operate” for “drive.” Defense lawyers contend that would allow an intoxicated driver sitting in a running but parked car to be charged with DUI.

“Our Supreme Court has said to drive means to be in motion,” Huff said.

But Val Valenta, lawyer for the S.C. Department of Motor Vehicles, countered, “It was ‘operating’ for 50 years, and I’d like to see it go back to ‘operating.’ ... He had to break the law to get there (to be in a parked position).”

In another matter, the defense lawyers proposed that drivers whose licenses are temporarily suspended for refusing to take blood-alcohol tests or registering levels at least .08 percent could continue to drive pending their appeals without applying for temporary licenses. North Carolina, Georgia and other states have similar laws, they said.

Reach Brundrett at (803) 771-8484.