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.
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