Driving Under the Influence (DUI)

South Carolina DUI Attorney

DUI (Driving Under the Influence), commonly known as drunk driving, is legally defined as driving a motor vehicle on a road or highway while under the influence of an intoxicating substance. It is a simple law, with a surprisingly large gray area of actual DUI culpability.

The primary determining factors of DUI are whether the defendant was driving, whether what he was driving was a motor vehicle, whether he/she was on the road, and most importantly whether he/she was intoxicated. While some are more easily determined than others, the most vital question appears to be whether the defendant was actually intoxicated. This issue is at the core of the argument and presents the biggest challenge in dealing with the DUI statute.

Recently, new DUI statutes have been enacted to avoid this complicated intoxication issue. These statutes augment the law by not requiring a demonstration that the defendant was under the influence. Instead, the proof rests on a mere reading of a machine to determine the culpability of a suspected DUI driver. These statutes, often referred to as per se, define DUI as driving a motor vehicle on a road or highway with a blood alcohol level of approximately .08. The actual legal blood alcohol level varies from state to state.

The State must prove the following elements:

1. That you operated a motor vehicle
2. On a public highway
3. And you were under the influence of an intoxicant at the time of driving such that it impaired your judgment and ability to drive with a steady hand.

A few points to keep in mind:

• The State must show that you were impaired at the time of driving, quite often the test is taken a few hours later and, if you had consumed alcohol just before driving, the test would be higher than your actual level when driving. But this can also work against you - you may have had a higher alcohol level in your blood when you actually drove.
• There are many challenges to DUI charges - don't ever feel it is hopeless. Often, if the Solicitor or Prosecuting Attorney can be shown some weakness in his case, he will amend the charge to a non-DUI offense. This happens more often than people realize and is the real battleground for the defense.
• Having a BAC above the legal limit can be a separate charge, and it is considered strong evidence of intoxication. You should know, however, that you may be cited for DUI even if you are not tested at all. This would be rare, but possible. It is important because even if you successfully challenge the test, the State may still allege that you were under the influence, and the jury would have to decide whether or not you were intoxicated. The opposite could also be true: you may be driving just fine and not feel impaired at all (the State could even agree that is true) and you could still be cited for operating above the legal limit (now .08).

Common defenses

There are as many ways to defend a case as there are creative lawyers. However, I have compiled below a few of the classic challenges and strategies that can leverage your negotiating position with the Solicitor or Prosecuting Attorney and/or used at trial.

• Administrative suspension. You will be given a form that will allow you 10 days from the date of arrest to request an "Administrative Suspension Hearing." This is a very often overlooked hearing that will allow you to subpoena the arresting officer and get him locked into a version of events. Many attorneys either don't know about how to request and conduct these hearings, or don't even know they exist. At this hearing you may challenge whether proper notice about alternate test options was given, whether the "Informing the Accused" was read and, most importantly, if there was probable cause to make the arrest. This last one is the real focus of this hearing: you can lock the officer into his story about what he saw, where he saw it, how he conducted the field sobriety tests, and (hopefully) detail all of your conduct that actually showed sobriety (able to walk, talk, stand and understand directions, etc.)
  This hearing takes place at the DMV with a DMV employee (conveniently dubbed a "hearing examiner") presiding and making the decision. You should independently have a court reporter present to record the entire proceeding or, at the very least, tape record it. Otherwise, there will be no record of officer's statements. If the officer does not show after being subpoenaed, the Administrative Suspension is vacated, and you may continue to drive with your regular licence during the pendency of the case.
• Field Sobriety Tests. These are notoriously bad indicators of intoxication. Three tests are recognized by the federal DOT as accurate indicators of intoxication (only a BAC above .10). Many of these field sobriety tests, such as HGN (Horizontal Gaze Nystagmus), Walk and Turn, and One Leg Stand, were found to be only 65-77% ineffective, thereby leaving their results open to dispute in court proceedings. These tests are wrong (thus people are wrongly accused) nearly 1/3 of the time.
  Also, very few officers conduct these tests in accordance with established procedures: this reduces their accuracy even further. Most are "divided attention" tests - i.e., the police will force you to concentrate on multiple physical movements that are not natural for humans. A few comments on each will suffice:
  • Preliminary Breath Test. The results of this test are inadmissible at a trial. The jury will never hear about it, but the officer and the court may use it as part of the probable cause justification to arrest you. The machines used for this test, are often cheaply made and incorrectly administered by ill-trained police officers.
  • Horizontal Gaze Nystagmus (HGN): In this test, the officer passes a pen in front of your face and you are asked to follow it with your eyes. Supposedly, if your eyes exhibit a jerkiness (nystagmus) during the passes, it indicates intoxication. However, the officer will have to admit that nystagmus can, and does, occur naturally in many people, and that stress and bright lights (which are present at every traffic stop) can bring an onset of nystagmus.
  • Walk and Turn. The police officer will ask you to keep your hands at your side, walk heel-to-toe 12 steps (counting each aloud), turn and walk back. They will be looking for "clues," such as you are unbalanced during instructions, you stopped while walking, your heel and toe didn't touch, you used your arms for balance, you made an improper turn (often a "pirouette," like a ballet dancer) and you made an incorrect number of steps. This test asks you to make a very unnatural movement that few sober people can do. There are many challenges to this test: the slope of the road, presence of gravel, heavy clothing in the winter, high heels, passing traffic dangers, distracting squad lights as well as officer spotlights.
  • 1 leg stand. Only pelicans are physically qualified to do this test. The rest of the bipedal creatures have a great deal of difficulty, unless they are gymnasts or police officers who practice it every night by the roadside while arresting fellow citizens. They will ask you to put your feet together and then raise one foot and count up to 30 using "one thousand one," etc. They will record any swaying, using arms for balance, hopping and putting your foot down. The same test conditions that are troubling for the walk-and-turn, apply here.
  • Alphabet. This is not a recognized test, and can be challenged on that ground alone. This test should not be the part of any probable cause analysis. The police will ask you to state the alphabet without singing it. It sounds simple but invariably people miss a letter, get rattled, begin again, etc.
• BAC tests. Both breath and blood samples are used as evidence of your intoxication.
  • Breathalyzer. Challenges include whether the machine was maintained properly and was calibrated correctly, whether the operator (a cop) did the 20 minute observation period, or if the machine's design is flawed. All of these issues (and more) can create reasonable doubt that the test result is accurate. Also at issue is the physiology of the subject (you). The depth of your breaths and excess dissipation from your saliva will greatly affect the test results. Also RFI (Radio Frequency Interference), such as from police radios, may cast doubt on the test result.
  • Blood Test. This is more difficult to challenge. You should strongly question the procedures used for the blood draw (often the person drawing the blood is a mere medical technician). Also there may have been contamination with the chain of custody of the sample. Finally, the lab may not have used proper procedure or the analyst might not be sufficiently trained.