South Carolina mothers against drunk driving
COURT MONITORING REPORT
R E F U S A L T O C H A N G E
2020
DEDICATION: CHALLISSAH MILLS
Challissah Mills was just 26 years old and at the beginning of her life when she was tragically killed by a drunk driver. Challissah was a loving daughter, devoted sister, and loyal friend. She had a beautiful smile and energy that lit up the room. She had a way of making others always feel comfortable around her. Oftentimes, she would give her last or take the least desirable option to ensure everyone’s comfort.
Challissah, along with her three sisters (“The Mills Girls”), were inseparable, protective, and fiercely close from childhood. She was a role model to her little brother, who shared her love of video games, scary movies, anime’, and Pokemon. Her family was her number one priority. From childhood, she loved to cook and bake with her Grandmother. She had dreams of attending culinary school from a young age and wanted to open her own bakery. Challissah graduated from South Florence High and then enrolled at Florence- Darlington Tech. There, Challissah served as an education ambassador and was an active member of the Drama Club. She wanted to eventually transfer to Rutgers and had aspirations to be a chef, own a bakery, be a psychologist, or be a writer. Challissah was fearless in everything she did. Whether it was fighting fires, making peanut butter blossoms for her friends, rocking out in her bedroom with her little sister, or playing Beyblades on the floor with her little brother, Challissah always did it with such purpose. Challissah had a dark and daring sense of humor. She was sarcastic, witty, and naturally charming. Challissah earned her CNA license and graduated first in her class. She served as a CNA and spent the last few months of her life tirelessly caring for her sick mother. She was a willing support system to anyone who asked, earning the title “Dr. Phil” amongst her friends as they would turn to her for advice. Throughout her life she maintained the honesty and pure heart of a child, speaking what was on her mind and finding the good in everyone around her. On October 9 th , 2017, Challissah was pulling into her driveway when she was hit by a drunk driver. She did nothing wrong, yet, her life was taken at the age of 26. Challissah’s mother, Lisa Hagberg, has been a fierce advocate since then, working alongside MADD to tell her story and make herself available for every opportunity to inform stakeholders about the need for change in this state. Through Lisa, Challissah’s spirit is very much present in this report. “In 2017, there were 313 drunk driving fatalities in South Carolina. My daughter was one of them,” Lisa reminds us.
DEDICATION: ALLISON WOMACK
It was a clear beautiful afternoon in Lexington on July 9, 2019 when a 20-year-old young woman’s life was changed forever. Allison Womack, her friend Deandre, and a couple of other friends were driving on heavily travelled Highway 378. Unfortunately, a 64- year-old drunk driver was traveling
westbound on 378 that day who had many previous DUIs that had been pled down, as well as three pending DUIs. The drunk driver turned in front of them and struck Allison’s Honda SUV, flipping it over with his large pickup truck. Allison’s friends fortunately escaped the crash with scrapes and bruises. Allison received a shoulder injury that later required surgery. Allison had just become certified as a yoga instructor, something that she had worked very hard to achieve. The injury to her shoulder completely derailed her ability to work as a yoga instructor after teaching just one class. The drunk driver in this case did not have a driver’s license, insurance, nor assets in his name. On February 24, the drunk driver pled guilty to DUI Third Offense. The plea was a result of another pending DUI charge. Allison bravely faced the offender in court and gave her victims impact statement through tears. The offender was sentenced to three years in prison. However, he later requested a sentencing reconsideration and, due to contracting COVID in prison, a judge decided to let him out and serving just 159 days of that sentence. At a hearing on September 9, 2020, Allison and her mother, Kristen, spoke directly to the drunk driver that upended their lives. “Allison is still my baby and like many parents, my need to protect her becomes more intense in times of trouble. While I had the luxury of knowing what had happened before getting there, my child had just experienced the absolute scariest moment of her life. Did you know that she felt sorry for you when she saw you get out of your truck? She thought you were just old and possibly injured or shook up. It wasn’t until someone told her that you were drunk that she even thought about someone doing something so stupid!” Kristen stated. “My fear is that you are going to kill someone. Every time I think about your attorney’s ridiculous comment about you not being eligible for a license, my blood boils. As if that plays any part in protecting innocent people from you! As if that makes you in any way less dangerous. You had no license when you nearly killed my daughter, you had no insurance when you nearly killed a car load of kids! No one is any safer now than the day you drove into my child.” Allison’s experience speaks well to the issues raised in this report. If the “system” had worked the first, or second, or third or more times, then this crash would have been prevented.
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Executive Summary
MADD South Carolina monitors the outcomes of first offense misdemeanor DUI cases in seven large South Carolina counties. The starting dates in those counties ranged from 2016 to 2019. The counties where we currently monitor are Berkeley, Charleston, Greenville, Horry, Lexington, Richland, and Spartanburg. The program’s goals are to compile relevant statistics regarding the dispositions of DUI cases in the courtrooms, to raise awareness of the level of public concern regarding the dispositions of DUI cases, and to report information on the dispositions of DUI cases in order to make improvements to the DUI enforcement, prosecution and/or adjudication systems. Court Monitoring staff collected specific information on cases from attending court hearings or through case research online. We also have held multiple meetings with informed individuals within the enforcement and prosecution communities to assist with interpretation and context. This is our third state report with the first two being published in 2017 and 2018. Our target counties varied in terms of who handled the prosecution of cases in the courts where we monitored. Horry County has a high percentage of cases prosecuted by the arresting officer. Greenville, Spartanburg, and Lexington Counties more often used attorney prosecutors. Charleston and Berkeley Counties were a mix of attorney prosecuted and likely officer prosecuted depending on the jurisdiction. We determined that Richland County did not fit a category because it seems the balance of officer vs. attorney prosecuted cases has been shifting in the time we have monitored there. Our data for Berkeley County showed 42% of 215 cases ended with a guilty conviction for DUI or the equivalent charge of Driving with an Unlawful Alcohol Concentration. Charleston County was 46% of 414 cases. Greenville County was 47% of 777 cases. Horry County was 29% of 388 cases. Lexington County was 46% of 263 cases. Richland County was 30% of 399 cases. Spartanburg County was 67% of 213 cases. Of the cases that did not end up as guilty of DUI, it varied by county whether the final outcome was most often a plea to a lesser charge like reckless driving (even more common than a DUI conviction in some counties) or whether we classified the case as “dropped, dismissed, or not guilty.” This last category means we could not find an online record of how the case was disposed. In summary, only one of the seven counties had a conviction rate over 50%. MADD’s 2019 Court Monitoring national report shows a combined conviction rate of 59% across 18 states with court monitoring data for that year. The reasons for our state’s unacceptably low conviction rate are many and include an unfairly strict videotaping statute, a system that practically rewards those who violate their agreement to provide a breath or blood sample if asked, too few judges taking the full ownership necessary to treat DUI seriously, too little DUI training for officers and judges, and insufficient resources for prosecution, which leaves many officers in the state having to prosecute their own DUIs.
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It is reasonable to connect our state’s low conviction rate with the fact that we are among the nation’s worst for drunk driving fatalities. South Carolina’s 291 deaths in 2018 is higher than many other states with millions more citizens. MADD South Carolina continues to monitor cases in these areas, but some things South Carolina needs to do are already very apparent. We call for change in the following areas: Ensure that our laws for refusing to provide a breath or blood sample upon arrest actually have teeth so that there is a downside to refusing, unlike now where one could argue it works heavily in the favor of the person being charged. The best step would be to add an ignition interlock device requirement for being eligible to get a Temporary Alcohol License if theirs is revoked for refusing.
Amend the state’s dash cam video recording statute so that the other evidence in a DUI arrest can be used even when there is a problem with the video.
Ensure those arrested for DUI for the first time are treated seriously because a “slap on the wrist” could not only lack the deterring effect needed to prevent future offenses but also emboldens those arrested subsequent times that they will be able to beat their charges again. Embrace technology to aid in the fight against DUI including increased use of ignition interlock devices so that they are required of all convicted offenders and those who want to drive after refusing, electronic methods for getting a search warrant more efficiently, more officers with body cams, and teleconferencing services to simplify the logistics of court hearings that can sometimes prevent convictions. Encourage adequate resources for DUI prosecution so that attorneys are prosecuting rather than officers and more aggressive prosecution of DUI cases overall so that more offenders are held accountable with the appropriate penalties and not pled down to reckless driving charges that do not keep the public as safe from repeat offenses. Our county with the highest conviction rate, Spartanburg County, was able to point to both a more aggressive prosecution culture and tangible “tough” actions. Urge judges to own the culture of how DUI cases are handled in their courtroom and to recognize the impact of case delays by the defense on the likelihood of a conviction.
Increase training for officers on proper handling of DUI arrests as officer error on these very complicated cases can ensure there will not be a conviction.
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Introduction
Year after year, South Carolina appears at the bottom of national rankings for drunk driving. In 2013, no state had a higher percentage of their traffic fatalities caused by drunk driving. From 2015-2017, no state had a worse rate of drunk driving fatalities per mile driven. In 2018, South Carolina had 291 traffic fatalities. That was 10 th worst in the nation, though we are 23 rd in population. We had more drunk driving deaths than Ohio, which has 6.5 million more people than we do.
Yet we show a refusal to change.
Drunk driving is a serious crime. You only need ask those 291 families. At MADD, we come to know many of these families, and our hearts break with them. We can support them, advocate for them, help them find their voice, and honor their loved ones, but we cannot ever fix the heartache. These crashes are sudden, violent, and tragic, and they cannot be undone. Yet, they are also 100% preventable. The message of the seriousness of drunk and drugged driving crashes will get lost without strict and consistent outcomes in the court system.
The Case for Court Monitoring
Court monitoring is a proven tool to affect the adjudication process and is recognized by NHTSA as an effective countermeasure to reduce alcohol impaired driving (Countermeasures That Work, NHTSA, 6th edition, March 2011). A NHTSA commission study found that in cases where court monitors were present, conviction rates for DWI/DUI offenders were 10% higher and case dismissal rates were 70% lower (Impact of Court Monitoring on DWI Adjudication, December 1990, DOT HS 807 678). Court monitoring has also proven to be a highly effective method of creating ongoing productive discussions between citizens and the judiciary. This makes the courts more accountable to the community they serve. Research shows that a first-time DUI offender has driven drunk an average of 80 times prior to their first arrest. Nationally, about one- third of drivers arrested for DUI have had a previous DUI conviction. Inconsistency in the handling of DUI cases, DUI charges being amended to lesser charges and dismissals of cases may contribute to repeated DUI offenses. MADD supports swift and equitable treatment for all DUI cases. MADD’s Court Monitoring Program was created to ensure that DUI offenders are prosecuted, dismissals of DUI cases are decreased and justice is achieved. Our Court Monitoring program’s goals are: • To compile relevant statistics regarding the dispositions of DUI cases in the courtrooms • To raise awareness of the level of public concern regarding the dispositions of DUI cases
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• To report information on the dispositions of DUI cases in order to make improvements to the DUI enforcement, prosecution and/or adjudication systems
Court Monitoring in South Carolina
Our court monitoring program is funded by grants from the Office of Highway Safety and Justice Programs (OHSJP) within the South Carolina Department of Public Safety. Our initial grant was for three years and began on October 1, 2015, addressing Greenville, Pickens, Richland, and Kershaw Counties, the 13 th and 5 th judicial circuits. Our second grant began on October 1, 2017 and added Horry, Berkeley, and Charleston Counties. When the original grant ended in September 2018, OHSJP funded a new grant where we proposed monitoring in Greenville, Spartanburg, Richland, and Lexington Counties, meaning we are now monitoring in seven of the state’s largest counties. Since that time, OHSJP removed the three-year length on the grants. If funding is approved for our annual applications, we currently plan to remain in those seven counties in an attempt to measure long-term impact of these efforts. The counties we select are supported by data provided by OHSJP. We determined our counties of focus based on the number of fatal and serious injury alcohol-related crashes. None of our counties were selected based on known “problems” with those counties in terms of adjudication or prosecution. In fact, we knew very little about what the status of those counties were in terms of DUI case outcomes or prosecution approaches until we began monitoring there. To achieve the above listed goals, MADD South Carolina Court Monitoring staff and, to a lesser extent, volunteers collected specific information on DUI cases from court hearings and through case research online. Data collected for each case included jurisdiction, offender demographics, date of arrest and court appearances, original charges, disposition of the case (plea, reduction in charges, guilty/not guilty verdict, etc.), and extent of the penalties issued. While detailed information was collected, not all of the data has been shared in this report. Our protocol is to not share data on specific judges or prosecutors with data being shared at the county levels only.
MADD Court Monitoring Program Volunteers
Court Monitoring volunteers are recruited through speaking engagements, social media postings, volunteer board postings, career/internship fairs, referrals from existing volunteers, and volunteer inquiries made to MADD South Carolina. All Court Monitoring Program volunteers complete an application and agree to a background check performed by MADD’s national office. Once the background check has been approved, the volunteers complete a three-hour online training program and in-court training with
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one of MADD South Carolina’s Court Monitoring Specialists. Volunteers monitor DUI cases by attending DUI hearings or by researching DUI cases online through the South Carolina Judicial Department’s Public Index database, completing Court Monitoring forms, and returning them to the Court Monitoring Specialist for review and data entry. Currently, MADD South Carolina only has two full-time and one part-time staff person for our Court Monitoring Program, across all seven counties. Volunteers can be a crucial part of MADD’s success, however the majority of the data collected in this report was monitored by the Court Monitoring Specialists. Volunteer recruitment to supplement the staff’s work is ongoing.
Quantitative Data Collection
The Court Monitoring Program data were obtained from three sources: 1) MADD Court Monitoring forms completed in court by MADD South Carolina staff and volunteers, 2) the South Carolina Judicial Department’s Public Index database, and 3) municipal cases records located on their individual websites. Data from the MADD Court Monitoring forms were collected from four categories: 1) case information, 2) charges, 3) sanctions/sentence, and 4) comments. Case information included, but was not limited to, defendant’s name, date of birth and the name of the court where proceeding was held. Charges included the original charge, the amended charge (if applicable), final charge and the arresting agency. Sanctions/sentences imposed included, but were not limited to, jail time, fines, ignition interlock, license revocation/suspension and probation. Comments provided additional case information. Information collected by MADD South Carolina staff and volunteers was verified through records accessed through the South Carolina Judicial Department’s Public Index database. The database provided DUI case information, charges and sanctions. The data obtained from the Public Index was compared to the data recorded by MADD South Carolina staff and volunteers to assure accuracy of the data collected. The data in this report are from DUI cases (initiated by a DUI arrest) scheduled to be heard in chosen magistrate and municipal courts in Berkeley, Charleston, Greenville, Horry, Lexington, Richland, and Spartanburg Counties from January 2016 to August 2020. As noted earlier, we began in each county at different times with Greenville and Richland being among our original counties and Lexington and Spartanburg being the most recently added (early 2019). This report is the third that MADD has generated from this project with the first report being released in 2017 and second in 2018. However, these earlier reports were only for our four original counties. This report will be the first to include Berkeley, Charleston, Horry, Lexington, and Spartanburg Counties. The courts we monitored were chosen based on availability of access to court rosters, frequency of court hearings and the number of DUI cases heard in court. The courts most frequently monitored were the magistrate courts in our focus counties. The difficulty with the municipal courts was a lack of access to court rosters and wide
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variation in the number of DUI cases heard from hearing to hearing – meaning that some days you may have 15 DUI cases and the next hearing zero DUI cases. The magistrate courts seemed to always have a large number of DUI cases for each scheduled hearing. It made the most sense to maximize our resources to attend court where there are more cases being heard than travel to a court, sometimes at a considerable distance, to monitor one or two DUI cases. It is not the expectation of our court monitoring program to monitor every single DUI case, but to do a thorough and complete data collection of those cases that are monitored. In Greenville County, the courts we focused on primarily heard cases written by the Greenville County Sheriff’s Office and the Highway Patrol. In Richland County, the courts we focused on primarily heard cases written by the Richland County Sheriff’s Office, Columbia Police Department, University of South Carolina Police Department, and the Highway Patrol. In Spartanburg, the courts we focused on primarily heard cases written by Spartanburg County Sheriff’s Office, Spartanburg Police Department, and the Highway Patrol. In Lexington, the courts we focused on primarily heard cases written by the Lexington County Sheriff’s Office, Lexington Police Department, and the Highway Patrol. In Horry County, the courts we focused on primarily heard cases written by the Highway Patrol, Myrtle Beach Police Department, Conway Police Department, North Myrtle Beach Police Department, Surfside Police Department, and Horry County Sheriff’s Office. In Charleston, the courts we focused on primarily heard cases written by the Highway Patrol, Charleston County Sheriff’s Office, Mount Pleasant Police Department, North Charleston Police Department, and City of Charleston Police Department. In Berkeley County, the courts we focused on primarily heard cases from the Highway Patrol, Berkeley County Sheriff’s Office, and Goose Creek Police Department.
Data Analysis
Data from misdemeanor DUI cases were entered into MADD’s Court Monitoring database, which is utilized by Court Monitoring programs in nearly 20 MADD state offices. Variables of interest for this report included case disposition to include guilty, not guilty, amended (pled down) and dropped/dismissed, case age, sanctions and prosecutor type. In order to simplify the data yet remain accurate, we determined the various outcomes of cases could be reduced to three categories. “Guilty” includes those cases where the accused pled guilty to DUI or Driving with an Unlawful Alcohol Concentration (DUAC) or they were found guilty in a bench or jury trial. This category also includes plea deals where the offender pled down to a lower BAC (blood alcohol content) than they were originally charged with. We explain DUAC and our decision to count that as a guilty outcome below. “Dropped/Dismissed/Not Guilty” refers to cases that are either clearly marked as one of those three outcomes OR when we can no longer find the case in the public index. “Not Guilty” was added to this “catch all” category because once a person is found not guilty, their case information is erased
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immediately from the public index causing us to lose the trail of the case. It is not ideal to have a category that includes such a variety of outcomes, but they all essentially share the same situation of our not being able to determine what happened to the case. “Pled Down to a Lesser Charge” means that the accused was not found guilty of DUI or DUAC but was ultimately found guilty to a lesser charge, predominantly reckless driving, stemming from the same incident. As a technical point, whereas this would be referred to as amending the original charge in other states, it is common practice in South Carolina for the original DUI charge to be dismissed (or nol prossed) with a new charge then written for the lesser offense. DUAC is a separate statute (56-5-2933) from the state’s DUI law (56-5-2930) but carries essentially equivalent penalties. If a subsequent DUI charge is made after a previous DUAC conviction, that DUI is a second offense. In our discussion with our experts in the system, it was unanimous that a DUAC conviction should be counted the same as a DUI conviction for the purposes of our data analysis. They explained that some people will accept a plea deal to a guilty for DUAC charge because 1) the offender can say they have never had a DUI (technically) if asked and 2) the offender can get the original DUI charge expunged so it will only show up on a driving history but not a criminal history. Given the challenges of getting a DUI conviction in South Carolina, MADD SC sees that getting an agreement to plea to DUAC makes sense given the penalties are essentially equivalent. An additional challenge to analyzing the data is due to the difficult nature of navigating the online public index records. When a case is pled down in South Carolina, as a large percentage are, the original ticket number ceases being used and a new one is opened. However, the old ticket number doesn’t reference what the new ticket number is, so we must undergo a search for the offender in the records. For an unusual name, that may be easy, but for a “Mark Smith,” for example, that could mean a long review of lots of offenders with that name to find where the trail of that original DUI ticket continues. Sometimes we cannot find that record. We also often use the public index to know about when DUI cases will be heard in certain courts, but that searching is incredibly time consuming. If there are missing cases or inaccuracies, it affects the accuracy and thoroughness of our work. It is a limitation that we have to work within.
Key Expert Input
The data collected directly from monitored cases that we share in this report is compelling in many ways, but our data alone are not sufficient to fully grasp the landscape of DUI prosecution and adjudication in these areas. During the spring and summer months of 2020, MADD South Carolina held five “stakeholder roundtable” discussions that included stakeholders from all seven focus counties. Invitees included judges and magistrates, solicitor’s office staff, law enforcement, and key community partners. MADD staff presented key data to the attendees and then engaged in very
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valuable discussions about their impressions and additional information needed to understand the situations that led to what we saw in the data. Because there were key individuals not able to attend, we held additional meetings to gain their perspective. These collective perspectives are shared in multiple places below interspersed with our court monitoring data.
Total Number of Cases Monitored
We have now monitored 4,113 total cases in these counties, of which 2,678 cases have had a final determination and 1,435 cases remain open. These open cases will continue to be monitored, and the outcome of those cases will be included in the next annual report if they have a final disposition by the time of that report. The primary reasons for a case still being open are either 1) the case is recent and has not been addressed by the courts yet, 2) COVID-19 delays, or 3) the defendant requested a jury trial set for a future date. The table below shows how many closed cases we have for each county. The data shown later in the report is based off of these closed cases only.
# OF CASES CLOSED
# OF CASES OPEN
% OF CASES CLOSED
COUNTY
Berkeley
215
91
70%
Charleston
414
213
66%
Greenville
777
98
89%
Horry
388
204
66%
Lexington
263
174
60%
Richland
399
453
47%
Spartanburg
213
202
51%
Type of Prosecutors and Defense Representation
Some cases we monitored were prosecuted by an attorney from a Solicitor’s office or a municipality. Some were prosecuted by the arresting officer. The latter is an unusual practice from a national perspective. A report, written by Clemson University and commissioned by the South Carolina Department of Transportation, titled “Applying Successfully Proven Measures in Roadway Safety to Reduce Harmful Collisions in SC”
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says that South Carolina is one of two states in the nation where police officers prosecute their own DUI cases. Because the public index records, which is how we monitor many of our cases, do not indicate who prosecutes the case, we often will label the prosecution type according to what we observe to be the predominant type of prosecution in that area based on our observations. In some areas, we know that an attorney prosecutor handles all cases. In some areas, we have rarely ever seen an attorney prosecutor and the officers handle them all. For the latter, we still use the conservative term “Likely Officer Prosecuted” just to leave open the possibility that some of them may have been handled by an attorney prosecutor but we were not in court that day to be certain. Given our experiences, we put the cases we monitored in Greenville, Spartanburg, and Lexington cases under the category of attorney prosecutors. This does not mean that officers do not prosecute some cases or maybe even the majority of cases in some jurisdictions. We can only speak to the courts where we monitor. Charleston and Berkeley Counties were a mix of attorney prosecuted and likely officer prosecuted depending on the jurisdiction. We consider Horry County to be likely officer prosecuted based on our observations. We heard multiple comments that Richland County is prosecuting much more cases with attorneys than it used to, so we did not put that county in either category for data analysis based on prosecution type. We also created two categories to describe the representation of the accused. “Defense Attorney” means the accused had a paid attorney or a public defender. The other category, “Defending Self,” is for those who handled their own case without any attorney. The legal term for this is “pro se.”
Case Dispositions by County
Below, we share by county the results for the cases that we monitored that had a final outcome.
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Berkeley County
42%
Guilty
27%
Pled Down
32%
D/D/NG
n=215
For the 215 cases with final outcomes we monitored in Berkeley County, 90 were found guilty, 58 were pled down to a lesser charge, and 69 were dismissed, dropped, found not guilty or disappeared from the public index for unknown reasons.
Charleston County
Guilty
46%
21%
Pled Down
D/D/NG
33%
n=414
For the 414 cases with final outcomes we monitored in Charleston County, 190 were found guilty, 87 were pled down to a lesser charge, and 136 were dismissed, dropped, found not guilty or disappeared from the public index for unknown reasons.
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Greenville County
Guilty
47%
44%
Pled Down
D/D/NG
9%
n=777
For the 777 cases with final outcomes we monitored in Greenville County, 365 were found guilty, 342 were pled down to a lesser charge, 70 were dismissed, dropped, found not guilty or disappeared from the public index for unknown reasons.
Horry County
29%
Guilty
Pled Down
43%
D/D/NG
28%
n=388
For the 388 cases with final outcomes we monitored in Horry County, 112 were found guilty, 167 were pled down to a lesser charge, and 109 were dismissed, dropped, found not guilty or disappeared from the public index for unknown reasons.
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Lexington County
Guilty
46%
Pled Down
49%
D/D/NG
5%
n=263
For the 263 cases with final outcomes we monitored in Lexington County, 121 were found guilty, 129 were pled down to a lesser charge, and 13 were dismissed, dropped, found not guilty or disappeared from the public index for unknown reasons.
Richland County
Guilty
30%
Pled Down
36%
D/D/NG
33%
n=399
For the 399 cases with final outcomes we monitored in Richland County, 120 were found guilty, 143 were pled down to a lesser charge, and 131 were dismissed, dropped, found not guilty or disappeared from the public index for unknown reasons.
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Spartanburg County
Guilty
67%
16%
Pled Down
D/D/NG
17%
n=213
For the 213 cases with final outcomes we monitored in Spartanburg County, 142 were found guilty, 34 were pled down to a lesser charge, and 36 were dismissed, dropped, found not guilty or disappeared from the public index for unknown reasons.
National Data
It is difficult to make any strong comparisons to national data as each state has varying DUI sentencing options. For example, many states have processes in place where some first-time DUI offenders can have their charge expunged after some combination of education, treatment, community service, and fines with the understanding that there will be a traditional sentence if the terms are violated by the offender. In the table below, MADD describes this as “deferred prosecution.” South Carolina does not have an option like this.
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With that limitation acknowledged, the table above shows the various dispositions of DUI cases from 18 states, including South Carolina, that have MADD Court Monitoring. It shows 59% of those arrested are found guilty of DUI. This is down from 61% in the 2017 data. Considering six out of seven South Carolina counties in our report show a less than 50% conviction rate, it is safe to say that South Carolina as a whole has a conviction rate far worse than the national average.
Case Disposition by Prosecutor Type
Below, we present data on the results of cases that had a final outcome based on the type of prosecutor (lawyer vs. officer) and type of defense (retained attorney, whether a hired attorney or a public defender, or the accused representing themselves). We draw your attention back to the section above that describe the general situation by county in terms of who is prosecuting cases.
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Lawyer vs. Defense Attorney
Guilty
43%
Pled Down
44%
D/D/NG
13%
n=740
Dispositions involving a lawyer prosecutor against a defense attorney were 318 found guilty, 325 pled down to lesser charges, and 96 were dismissed, dropped, found not guilty or disappeared from the public index for unknown reasons.
Likely Officer Prosecuting vs. Defense Attorney
Guilty
13%
Pled Down
70%
D/D/NG
16%
n=215
Dispositions involving an officer prosecuting against a defense attorney were 28 found guilty, 150 pled down to lesser charges, and 34 were dismissed, dropped, found not guilty or disappeared from the public index for unknown reasons.
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Lawyer Prosecutor vs. Defending Self
Guilty
63%
17%
Pled Down
D/D/NG
20%
n=340
Dispositions involving a prosecutor against someone defending themselves were 214 found guilty, 58 pled down to lesser charges, and 68 were dismissed, dropped, found not guilty or disappeared from the public index for unknown reasons.
Likely Officer Prosecuting vs. Defending Self
Guilty
49%
Pled Down
28%
D/D/NG
23%
n=425
Dispositions involving an officer prosecuting against someone defending themselves were 208 found guilty, 119 pled down to lesser charges, and 97 dismissed, dropped, found not guilty or disappeared from the public index for unknown reasons. In our data, the highest conviction rate (63%) was when a lawyer is prosecuting against someone defending themselves. The conviction rate for officers prosecuting against someone defending themselves was the next highest (49%). Having a retained defense attorney was associated with lower conviction rates with the lowest rate being for officers prosecuting against a defense attorney, as those cases resulted in a DUI conviction in just 13% of cases. This pairing is one often referenced in our state as problematic when discussing the issue of the need to not have officers prosecuting
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cases. It would be logical to assume that a trained attorney would have an advantage in a legal match-up against a road officer. A defense attorney may be able to make motions or use strategies that someone without formal legal training would be challenged to counter. The vast majority of officers we have spoken with do not want to prosecute their own cases and are frustrated at the “unfair” match-up.
Case Dispositions by Case Age
Part of our data collection is to record the length of time between the arrest and the final determination of the case outcome.
Cases Resolved in Less Than One Year
53%
Guilty
Pled Down
42%
D/D/NG
4%
n=1527
Cases Resolved in Between One and Two Years
Guilty
42%
Pled Down
42%
D/D/NG
15%
n=553
Our data show that the conviction rate is just above 50% for cases settled in under a year, but there is an 11-percentage-point drop in conviction rates for cases that take longer than a year. This is compelling evidence to support what is known among those
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who prosecute cases—a delayed case has a much lower chance of ending in a conviction.
Discussion
Collectively, the data presented in this report are concerning, starting with a less than 50% conviction rate in six of seven counties and around 30% in some counties. While DUI convictions are arguably challenging in many other states as well, the numbers clearly indicate the DUI conviction rate is considerably lower in South Carolina. We also see considerable variations in conviction rates based on the combinations of who is prosecuting (attorney or officer) and who is defending (defense attorney or accused defending themselves). Of particular concern is the practice of officers prosecuting their own cases, especially as our data show they have just a 13% conviction rate when facing a defense attorney. The reasons for these challenges are multiple and complex. However, below we attempt to highlight many of the primary factors that cause us concern based on our observations and our multiple conversations with our expert panels.
A Focus on Pleading Down Cases
Rather than speculate or risk second-guessing those who know each case best, we would like to focus on the larger issues that lead to frequent pleading down to reckless driving, or other lesser charges, in our state. This discussion does not come directly from the court cases we monitored because the factor or factors that lead to a case being pled down rarely get mentioned in open court. Our court monitor will only hear, or see online, that a plea deal was worked out, but not why. Therefore, our discussions with our informed experts were key as we worked through a list of the primary factors for pleading down a DUI charge to a lesser charge. 1. South Carolina’s Dash Cam Video Recording Statute. By all accounts, South Carolina has the nation’s strictest law ( 56-5-2953 ) regarding the significance of in-car video (dash cam) footage to the prosecution of a DUI case. While dash cam footage of the arrest process is used in many states, South Carolina places unique emphasis on its presence and completeness to the extent that generally there cannot be a conviction without a video and even minor imperfections in the video can preclude getting a conviction, despite the presence of other strong evidence. In other words, an officer can witness and record erratic driving behavior, smell alcohol on the person, hear an admission to drinking and driving, and have their shoes vomited on, but if their dash cam video is lacking, the case likely will be thrown out or pled down to reckless driving. Video problems could include faulty video or audio, parts of the arrest process being unclear or obscured, or even just portions of the person’s body being assessed for impairment being out of frame for short moments. Many cases are lost when
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Miranda rights are heard being clearly read to the offender on the audio recording but that does not appear within the video frame. No other crime requires on-camera reading of Miranda. It should be noted that many DUI arrests take place late at night on the side of active roadways. It is very likely that many cases will have unclear video due to lights, glare, shadows, imperfect angles, and inevitable mechanical malfunctions. An officer conducting an investigation out of the car cannot be expected to have perfect knowledge of what is being recorded. While recent higher court rulings have addressed some of the most outlandish types of video-related case dismissals that MADD collected from officers and prosecutors in 2014 and 2015, more needs to be done legislatively to correct this issue. 2. Delays in Cases. It is often discussed that the longer a case drags out, the less likely a conviction will be reached. If the arresting officer moves, leaves law enforcement, or for any other reason becomes unavailable for the hearing then the case is often dismissed. Many of our experts related stories of defense attorneys requesting continuances with one possible benefit being that the officer becomes unavailable. There are other factors that can delay a case, however, including the fact that misdemeanor DUI cases are heard in the lowest courts. If someone involved in the prosecution or defense of the case is needed in a higher court, then that will likely prompt a continuance. In our 2020 local roundtable discussions, case delays were noted so frequently as a major cause for pleading down cases that we felt compelled to move it up on this list. It should also be noted that some case delays occur when there is a more problematic case from a prosecution perspective, and they may be less likely to push for swift hearing of the case. However, the majority of comments reflect that most continuances are requested by the defense. 3. Officer Error and Inexperience. As described above, South Carolina puts an especially high burden on an officer arresting someone for DUI because of the exacting procedures required by law. However, it is the current law of the land, and many officers excel at making strong cases. Officers that do not put all of their training to use in an investigation can often hurt the prosecution and necessitate a plea to a lesser charge. Even experienced, diligent officers sometimes neglect to fulfill every requirement of the DUI investigation, but we are constantly hearing about high law enforcement turnover and more inexperienced officers being on the road. Without high quality training and incentives to excel in DUI investigations, this will lead to more arrests that may not end up as convictions. This is still preferable to not arresting for DUI at all, however, if the officer believes there is impairment.
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4. Implied Consent/Datamaster Process and Video Recording Issues. South Carolina has one approved type of machine for the purpose of getting a Blood Alcohol Content reading on someone arrested for drunk driving. Unlike many other states, South Carolina does not allow officers to use a portable breath testing device on the side of the road to assist their investigation. There is a very specific process to running a Datamaster test on someone arrested for DUI, including exact words the officer must read. That process also must be video recorded. If there is almost anything done outside of this exact protocol or any issue with the video tape recording, the case often is pled down. There are similar challenges if the case is one that requires a blood draw from a hospital. Again, any deviation from the precise protocol often dooms the chances for a conviction, despite other evidence. 5. Judges/Magistrates Not Favorable to DUI Convictions. Based on past experiences with cases, those prosecuting DUI cases may come to believe that some judges/magistrates do not like convicting people of DUI and, consequently, they work out a plea to a lesser charge. 6. Inability to Have the Nurse/Toxicologist in Court. When a blood draw is part of the investigation, the defense can request that any medical personnel who are listed in the chain of evidence be present. If that person has moved or is unavailable for any reason, there will be no DUI conviction. As drugged driving increases, this issue could become even more prevalent.
This is likely not an exhaustive list of why DUI arrests eventually are pled down to lesser charges, but they reflect a majority of the discussion with our key experts.
Focus Area #1: Our Toothless “Refusal” Law
Perhaps not enough attention has been paid to the overall problem with refusals in South Carolina. When someone applies for a driver’s license in South Carolina, they agree to provide a blood or breath sample if requested by an officer. There is also a right to refuse at the time of that request, but it comes with a penalty—automatic loss of license for six months. But far too many never face a “true” suspension. South Carolina also has a Temporary Alcohol License (TAL) for those who have had their license taken for refusing (or blowing over a .15 BAC) and are requesting an administrative hearing. They can get this TAL for $150 just a day or so later. It allows for travel to work, school, and
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treatment, making it very difficult for an officer to determine if they are violating those restrictions as long as they are driving around town. Is this really a suspension? SLED provided us with data indicating that 42% of people arrested for DUI in South Carolina in 2019 refused to blow into the Datamaster machine. This is up from 38% in 2013. The latest, but dated, information our organization has is that the national refusal rate was 20% in 2011. While perhaps it should not be the case, lack of BAC data does harm the prosecution’s chances for a conviction. Other evidence should be sufficient for a judge or jury, but the reality is that BAC data is often the most convincing piece of evidence. To make matters worse, we heard consistent comments from local officers and prosecutors that “double refusals,” refusals to give a breath test and refusal to participate in Standardized Field Sobriety Tests on the side of the road, are on the increase. This means even less total evidence. If someone’s refusing to provide a sample benefits them, they should at least face “real” penalties for refusing. If there is not already enough incentive to refuse, those who refuse and then are found guilty are given the penalties equivalent to having a BAC between .08 and .10—the lowest of all possible penalty categories. If someone were designing a system that encouraged people to refuse providing the evidence they pledged they would, it would look much like South Carolina’s system. In addition to reconsidering the wisdom of rewarding those who refuse with the lowest penalties, MADD proposes coupling the TAL with the Ignition Interlock Device program that already exists for repeat offenders and first-time offenders with a BAC over .15. Installing these “in-car breathalyzers” protects the public as research is very clear that interlocks save lives. Would those who are arrested and refuse still be driving under this approach? They would, and MADD is fine with that scenario because they would be driving with a device that blocks bad decision making. It’s also worth adding that 50%- 75% of those who have their license suspended for DUI continue to drive, so that approach is not effective either. In 2019, Senate Bill 18 was filed that would have required ignition interlocks for a) anyone convicted of drunk driving regardless of BAC or number of offenses and b) those wanting to apply for a TAL. Despite passing the Senate by a 40-1 vote in March 2019, the House did not take up the bill in the Judiciary Subcommittee until March 2020. Ultimately, it never passed out of the Judiciary Committee, and the two-year legislative session ended, killing the bill. This bill would have truly been a life-saving measure that would also have meant that refusing to give a breath or blood sample would actually have affected someone negatively (cost and inconvenience) and may have caused them to reconsider the choice of refusing to blow. This reform has been refiled for the 2021 legislative year—Senate Bill 28 and House Bill 3008. We can no longer accept the refusal to change.
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Focus Area #2: Reforming the “Dash Cam” Statute
In a previous section we already outlined the concerns with our state’s dash cam statute that has been interpreted so strictly that it endangers public safety by too often leading to cases to be pled down over minor issues that do not get to the heart of whether the person accused was actually too impaired to drive. It is MADD’s stance, along with many partners we work with, that our dash cam video needs to be changed. The preference is not to remove dash cams from the arrest process but to amend the law so that a shortcoming in the video could result in the video, or a portion of it, being thrown out with the other evidence staying. No other crime statute puts such emphasis on the video.
Focus Area #3: Get It Right the First Time
In our meetings with local officers and prosecutors, many spoke in different ways about an issue MADD knows all too well—if we don’t treat first offense DUI seriously and get it right after that first arrest, what comes later may haunt us. MADD repeatedly serves victims/survivors whose crashes are caused by those with previous DUI arrests. The low conviction rates we’ve discussed have some of these offenders in those statistics. It is heartbreaking to serve a family so traumatically affected and then have to help them deal with the fact that the system failed so terribly, often because their offender was not found guilty of those earlier offenses and given the appropriate penalties that come with convictions. Our prosecutors spoke to another issue with those who go through the system the first time and end up with a lesser offense—they are even more savvy to the process and are even harder to convict if they are arrested again later. Now they have already seen that they can get a deal and will expect it again. If they worked with a DUI attorney, they’ve already had discussions about the ways people can get out of their DUIs. It is not unusual to find people who have had multiple DUI arrests pled down to reckless driving, and that should concern all of us who travel our roads. We must acknowledge the dangers we introduce when we don’t take the first arrest seriously. That does not mean an offender’s life needs to be ruined, but knowing there are penalties, especially when the penalties are smart and effective like requiring an Ignition Interlock Device, does influence future behavior. South Carolina should seek to be known as “tough on DUI,” but we are anything but right now. We have to connect that reality to our terrible DUI statistics. South Carolina can improve by more aggressively seeking convictions on first time offenders and requiring Ignition Interlock Devices for all offenders. There is another change that was brought up by our local stakeholders that was largely applauded when we shared the idea around. A DUI arrest that gets pled down to
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