MADD SOUTH CAROLINA - 2021 CM Report

COURT MONITORING REPORT

MADD SOUTH CAROLINA 2022

DEADLY

RESULTS

Dedication: Ashley Avant

On October 19, 2019, in the small town of Andrews, South Carolina, the sound of children’s laughter from a church fall festival still hung in the air. Minutes later, the happiness of the evening would be shattered by the sound of crushing metal, shattering glass and the agonizing screams of a 9-year-old child.

Thirty-year-old wife and mother, Ashley Avant, needed to run an errand. It was decided that she would drop her eldest daughter, AnLee, off at her parent’s home to visit with her great grandmother while her twins, Lydia and Evie, would remain behind at the church with Ashley’s parents. They were turning into Ashley’s parent’s driveway when they were slammed into by a multiple time repeat drunk driver. The offender was driving 80 mph at the point of impact with a blood alcohol concentration of 0.122. Instead of calling for help, the offender jumped out of his car and ran into the woods. Ashley would succumb to her injuries at the hospital.

The offender had multiple previous DUI/BUI arrests in his history with no convictions to our current understanding. On September 1, 2022, the offender entered a negotiated guilty plea to two counts of felony driving under the influence. He was sentenced to 13 years on each of the two counts, both sentences were suspended to 10 years. The sentences will run concurrently with him receiving credit for the 1,048 days he remained in jail since his arrest in October 2019. Ashley was a beloved mother, wife, daughter and sister. Her family was the most important thing in the world to her. She loved the water and spending time with her daughters at the pool, the lake, and the ocean. Ashley was very active in her church, and when she met Ken, she brought him into that aspect of her life. The winter that her twins were three months old, she would bundle up her three daughters and drive the 20 minutes to church in the freezing cold. She would carry in two infant car seats with Anlee walking alongside to a room in the back of the church. Her pastor asked why she brought the children to church in the c old when she could teach them at home. Ashley’s response was that God lives in her home, but his spirit was there in the church. She also wanted to teach the girls the importance of showing up. Ashley will be forever missed, especially by her daughters who are forced to grow up without a mother. In Ashley’s memory, along with so many others’, we push for a time, sooner rather than later, when every DUI is taken as the serious and dangerous offense that it is. South Carolina failed Ashley and her family. We can and must do better.

Executive Summary

The recent trends in South Carolina drunk driving fatalities are frightening and unacceptable, contributing to the fact that more people died on South Carolina roads in 2021 than in any year ever . Our relative standing to other states of our size are horrific and consistent. Every aspect of how we address drunk driving that is out-of-step with best practices and does not prioritize public safety contributes to the situation, and how first offense DUI arrests are handled in South Carolina is high on that list. The numbers in this report of how rarely people are being convicted after an arrest are not just disappointing, they are deadly. They contribute to a culture of viewing DUI as unimportant or just a “mistake” rather than a crime that jeopardizes ever y innocent person on the road and can affect any of us tragically in an instant. This report is a product of MADD South Carolina’s court monitoring program. MADD SC monitors the outcomes of first offense misdemeanor DUI cases in seven large South Carolina counties: 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 fourth report and shares findings based on cases we have followed since the beginning of 2019 that have come to a final disposition. Our data for Berkeley County showed 35% of 311 cases ended with a guilty conviction for DUI or the equivalent charge of Driving with an Unlawful Alcohol Concentration. Charleston County was 47% of 543 cases. Greenville County was 71% of 605 cases. Horry County was 30% of 513 cases. Lexington County was 42% of 598 cases. Richland County was 17% of 317 cases. Spartanburg County was 65% of 524 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. COVID-related court closures certainly impacted the time period of this report, but we did not see a consistent impact of how the numbers shifted since our last report. MADD’s 2021 Court Monitoring national report shows a combined conviction rate of 63% across 15 states with court monitoring data for that year. Clearly, South Carolina falls behind most of the nation.

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. It is reason able to connect our state’s low conviction rate with the fact that we are among the nation’s worst for drunk driving fatalities. D ata released by the National Highway Traffic Safety Administration (NHTSA) shows that while there were fewer cars on the road, South Carolina had a 14% increase in alcohol-related deaths, rising from 276 fatalities in 2019 to 315 in 2020. Truly, these are deadly results .

We call for change in the following areas:

• Support law enforcement officers and prosecutors to make themselves available for the administrative hearings that occur when someone refuses to give a breath test upon arrest. When officers show up and are prepared to explain why the person arrested should face the six-month license suspension stated by law, they ensure that person faces accountability, and there can be other benefits like people pleading guilty to the DUI in exchange for not getting the suspension. • 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. In 2020 and 2022, the South Carolina House of Representatives failed to pass a bill passed by the Senate that would have done this and also required these devices for all convicted DUI offenders.

• 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 onl y 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. An “all offender” ignition interlock law would be an obvious step. • Encourage adequate resources for DUI prosecution so that attorneys are prosecuting rather than officers. More aggressive prosecution of DUI cases is needed overall so that more offenders are held accountable with the appropriate penalties and not pled down to reckless driving charges.

• 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. They also need to protect the rights of pro se defendants while not going so far as to refuse any guilty pleas or advise those individuals on their defense. • 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. Steps should also be taken to improve motivation for doing excellent investigatinos. • 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, and teleconferencing services to simplify the logistics of court hearings that can sometimes prevent convictions.

Introduction

Year after year, South Carolina appears at the bottom of national rankings for drunk driving. Our 2020 MADD South Carolina Court Monitoring Report was titled Refusal to Change in part to acknowledge the long- standing tragic data and our state’s seeming acceptance considering that we make no major changes to how we address DUI. According to data released by the National Highway Traffic Safety Administration (NHTSA) in early 2022, alcohol-related deaths spiked 14% from 2019 to 2020. South Carolina also had a 14% increase in alcohol-related deaths, rising from 276 fatalities in 2019 to 315 in 2020, despite a 7% decrease in miles driven. This once again put us as 10th highest in drunk driving fatalities and fourth highest on a population rate basis. Sadly, in 2021 South Carolina had more overall traffic fatalities than any year in our history. Deadly Results . The title of this report has to reflect the seriousness of the situation and the connections that cannot be ignored between how South Carolina handles all DUI arrests and our tragic fatality numbers. When we do not care about holding people accountable after each and every DUI arrest, they often become repeat offenders causing devastation and grief that could have been prevented. Year after year passes with our state operating under the same problematic and out-of-date DUI statutes while other states demonstrate the life-saving impact of DUI reform. This is in spite of some outstanding efforts among many law enforcement and prosecution agencies, though we ask every stakeholder to do even more. Drunk driving is a serious crime. At MADD, we come to know many of the families impacted by this crime, 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 can never 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. We ask, and some days we scream: if the stories of real people and shocking numbers we have in front of us today, including the troubling convictions rate contained in this report, do not move us to change, will we ever find the motivation to save these precious lives lost needlessly year after year? Let’s get MADD and do something, South Carolina.

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 achieve d. 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

• To report information o n 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 w e 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 one of MADD South Carolina’s Court Monitoring Speciali sts. 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 da ta 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 was 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 was 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 2019 to July 2022. 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 fourth that MADD has generated from this project with the first report being released in 2017, the second in 2018, and the third in 2020. 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 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 and the Highway Patrol. In Lexington, the courts we focused on primarily heard cases written by the Lexington County Sheri ff’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.

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 is not sufficient to fully grasp the landscape of DUI prosecution and adjudication in these areas. During August 2022, MADD South Carolina held four “stakeholder roundtable” discussions that included stakeholders from all seven focus counties. Invitees included solicitor’s office staff, law enforcement, and key community partners. MADD staff presented key data to the attendees and then engaged in very valuable discussions about their impressions and additional information needed to understand the situations that led to what we saw in the data. These collective perspectives are shared in multiple places below, especially in our Focus Areas section.

Total Number of Cases Monitored

This report covers cases monitored between January 1, 2019 and July 1, 2022, and this period of time certainly was impacted by COVID-19 court closures and case delays. Though our efforts in some counties pre-date 2019, we chose to keep the data current and not go all the way back to our earliest efforts. Since 2019, we have now monitored 6,582 total cases in these counties, of which 3,424 cases have had a final determination and 3,158 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 that time. 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

315

131

71%

Charleston

552

256

68%

731

45%

Greenville

605

Horry

513

210

71%

Lexington

598

508

54%

Richland

317

844

27%

Spartanburg

524

478

52%

Data Analysis

Data from misdemeanor DUI cases were entered into MADD’s Court Monitoring database, which is utilized by Court Monitoring programs in nearly 15 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 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 incorrect information, it affects the accuracy and thoroughness of our work. It is a limitation that we have to work within.

Case Dispositions by County

Below, we share county specific data concerning the cases that have come to a final outcome.

Berkeley County

For the 311 cases with final outcomes we monitored in Berkeley County, 108 were found guilty, 109 were pled down to a lesser charge, and 94 were dismissed, dropped, found not guilty or disappeared from the public index for unknown reasons.

Charleston County

For the 543 cases with final outcomes we monitored in Charleston County, 255 were found guilty, 144 were pled down to a lesser charge, and 144 were dismissed, dropped, found not guilty or disappeared from the public index for unknown reasons.

Greenville County

Guilty

71%

Pled Down

22%

D/D/NG

n=605

For the 605 cases with final outcomes we monitored in Greenville County, 429 were found guilty, 131 were pled down to a lesser charge, 45 were dismissed, dropped, found not guilty or disappeared from the public index for unknown reasons.

Horry County

For the 513 cases with final outcomes we monitored in Horry County, 155 were found guilty, 205 were pled down to a lesser charge, and 153 were dismissed, dropped, found not guilty or disappeared from the public index for unknown reasons.

Lexington County

Guilty

42%

Pled Down

37%

D/D/NG

21%

n=598

For the 598 cases with final outcomes we monitored in Lexington County, 250 were found guilty, 224 were pled down to a lesser charge, and 124 were dismissed, dropped, found not guilty or disappeared from the public index for unknown reasons.

Richland County

Guilty

17%

Pled Down

32%

50%

D/D/NG

n=317

For the 317 cases with final outcomes we monitored in Richland County, 53 were found guilty, 103 were pled down to a lesser charge, and 160 were dismissed, dropped, found not guilty or disappeared from the public index for unknown reasons.

Spartanburg County

Guilty

65%

10%

Pled Down

D/D/NG

24%

n=524

For the 524 cases with final outcomes we monitored in Spartanburg County, 343 were found guilty, 53 were pled down to a lesser charge, and 128 were dismissed, dropped, found not guilty or disappeared from the public index for unknown reasons.

A Comparison of Results to Past Reports

This is the fourth MADD South Carolina report where we have shared conviction rates by county, but we will focus here on changes we have seen compared to the report released in December 2020, which represented case data from 2016 to summer 2020. Charleston, Horry, and Spartanburg Counties had the least changes in their dispositions, which is of note in part because it could be expected that the COVID-19 court closings might have had more of an impact on rates in some way. Compared to 2020, Lexington County had a slight decrease (four percentage points) in their conviction rate but had a much higher ratio of cases that were dropped, dismissed, or found not guilty relative to those that were pled down (5% and 49% in 2020 report). Lexington is one of the newer counties we monitor, and we have seen larger shifts between the first two reports when it is a newer county in our program. Berkeley County had a conviction rate that was seven percentage points higher (42%) in the 2020 report. The percentages of cases pled down went up eight percentage points. Greenville and Richland Counties had the most notable shifts in results since the last report. Greenville’s conviction rate had been 47% in the last report, 2 4 percentage points lower than this report shows. In discussions with our local stakeholders, there were two primary theories for this shift. One is that the thorough handing of magistrate- level cases by the 13 th Circuit Solicitor’s Office may in fact be leading to better results as of late. Second is that a substantial percentage of the cases that reached resolution during the COVID court closures were ones where the prosecution had a strong case

and could get a guilty plea. Cases that are being contested by the accused may still be awaiting a jury trial and therefore are not captured in these results. Richland County had a 30% conviction rate in our 2020 report, 13 percentage points higher than we now show. The shift was from DUI convictions to those that are dropped, dismissed, or found not guilty. It is uncertain what are all the factors leading to Richland now having a much lower conviction rate, but it was the county most impacted by court closures. The Chief Magistrate kept courts closed and then restricted operations returning to normal well past when other counties were resuming normal functions.

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 de scribes this as “deferred prosecution.” South Carolina does not have an option like this.

With that limitation acknowledged, the table above shows the various dispositions of DUI cases from 15 states, including South Carolina, that have MADD Court Monitoring. It shows 63% of those arrested are found guilty of DUI. Considering five out of seven South Carolina counties in our report show a less than 50% conviction rate, we believe it is safe to say that South Carolina as a whole has a conviction rate far worse than the national average.

Case Dispositions by Level of Prosecution Support

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” says that South Carolina is one of two states in the nation where police officers prosecute their own DUI cases. Given our experiences, we put the cases we monitored in Greenville, Spartanburg, and Lexington Counties under the category of “high prosecution support” areas because generally cases are assigned to an attorney prosecutor if there is not an early guilty plea. We also added our data for Mount Pleasant Municipal Court in Charleston County under this category because they have a full-time prosecutor that handles all DUI cases. 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 specifically monitor. Richland, Horry, Charleston (excluding Mount Pleasant Municipal Court) and Berkeley Counties were a mix of attorney prosecuted and officer prosecuted depending on the jurisdiction. We put these four counties into the “low prosecution support” category because a majority of the cases we monitored were officer prosecuted.

High Prosecution Support Areas

Low Prosecution Support Areas

As seen above, when a county has a higher level of prosecution support, the odds of getting a guilty conviction almost doubles. Officers prosecuting their own cases is often referenced as one of the main problematic issues with how our DUIs are handled in South Carolina. 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.

Average Defendant Gender and Age

Of the cases monitored, our data show that 74% of impaired driving cases involved male defendants. Our data also show that 59% of all defendants were between the ages of 21 and 39. Based on cases monitored, this information indicates that the male

population between the ages of 21-39 is a large contributor to our state ’s impaired driving problem. Additionally, 68 of the cases observed involved individuals under the age of 21. As part of our lifesaving mission, MADD knows that by preventing underage drinking today, we can end drunk driving tomorrow. Research shows that kids who start drinking young are seven times more likely to be in an alcohol-related crash. In addition, studies have shown that teens who do NOT drink alcohol until they are 21 are 85% less likely to become a drunk driver later in life than those who drink before age 14.

Why Cases Get Pled Down

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 l aw ( 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 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 moved toward a more reasonable standard, more needs to be done legislatively to correct this issue. 2. 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 despite the obstacles. 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. COVID likely exacerbated this. 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. 3. 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. 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. 4. Judges/Magistrates Not Favorable to DUI Convictions. Based on past experiences, 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. This was commonly repeated during our 2022 stakeholder roundtable conversations. In addition, an issue brought up in more than one of our roundtable discussions was regarding how judges handle pro se (defendant representing themselves) cases. While it is essential that the legal system, including judges, protect the rights of pro se defendants, there were descriptions of practices that seemed to us and others to reach beyond the line of what is appropriate. Specifically, we heard of some judges that simply refuse to accept guilty pleas, even when the pro se defendant has repeatedly indicated they understand their actions and are declining representation. In some other instances, there were reports of judges a cting as the defendant’s attorney, telling them what they should do in terms of a defense strategy. We believe the system works best when each component works within its role. This issue could suggest a need for additional training for judges on handling pro se defendants. 5. 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. 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.

Areas for Improvement for South Carolina

Based on everything we have learned, we offer the following as areas most in need of attention by the state.

Focus Area #1: Increase Focus on Implied Consent Hearings

Given how challenging it is to obtain a DUI conviction, made only worse by the impact of COVID on the courts, MADD is encouraged by the increased attention that some law enforcement agencies are giving to the implied consent aspects of a DUI arrest. Implied consent laws refer to the fact that when someone obtains a driver’s license, they agree to provide a breath sample to law enforcement if suspected of impaired driving. People do have the option of refusing in the moment, but that comes with a penalty — an automatic six-month license suspension. In South Carolina, we allow those who have had their license suspended for refusing, or for blowing over a .15 BAC, to keep driving if they contest the suspension and apply for a Temporary Alcohol Restricted License (TARL). Eventually, ranging from a few weeks to a few months, they will have a hearing before an administrative hearing officer to determine if the officer had proper justification for the traffic stop, followed all proper procedures, and the license suspension was correctly issued. The implied consent hearing is a separate process from the criminal case to determine whether the person broke the law by driving impaired, and they are common. SLED

data tell us that 41% of the people who were asked to give a breath sample upon arrest for DUI in 2021 refused. For a number of reasons, some law enforcement agencies do not attend these hearings meaning the person who refused will never actually serve the six-month suspension. However, some agencies that have committed to consistent attendance and preparation of these hearings have found favorable impacts. Knowing the accused is likely to have their suspension upheld, some defense attorneys will offer to plead guilty on the DUI criminal case if the prosecution will not seek the license suspension, thus increasing the conviction rate and saving future time preparing the criminal case. Officers also get valuable experience giving courtroom testimony with slightly less pressure than in a criminal case. Importantly, it also means the person arrested will experience some sort of penalty, regardless of the outcome of the criminal case, which should help with deterring future impaired driving. If more agencies put this attention on administrative cases, it could help with overall conviction rates and prevention of future DUIs. There may be more training and resources needed for this to happen in some areas.

Focus Area #2: Our Toothless “Refusal” Law

There are more issues with refusals in South Carolina. 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,” refusal 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 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 to encourage 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 Temporary Alcohol Restricted License 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 is 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 2021, Senate Bill 28 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 TARL. Despite passing the Senate by a 40-1 vote in 2021, the House Judiciary Committee never even gave the bill a hearing in all of 2022, 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.

Focus Area #3: 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 #4: Getting 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. We encourage readers, if they have not done so already, to return to the front of this report and read the dedication to the memory of Ashley Avant. Five prior arrests. Too little accountability. A young mother taken away from her family. This is an unacceptable failure. 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,

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