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
23
Made with FlippingBook Learn more on our blog