Vice Squad
Sunday, August 08, 2004
Undoing the Federal Anti-Drunk Driving Mandate

In early July, Delaware became the final US state to adopt a law that will make a blood-alcohol content (BAC) of .08 the standard for per se drunk driving offenses. (Not all such state laws have entered into effect yet.) As with the "national" minimum drinking age of 21, the .08 standard was effectively imposed upon the states by the credible threat of federal "blackmail," the withholding of highway funds from states who didn't come along. Prior to the federal pressure, many states used .10 as the per se standard.

Today's Charlotte Observer has a fascinating article (registration required) of how South Carolina's official .08 standard is circumvented in practice -- to the point that police rarely will charge drivers under the per se statute, preferring to use an older anti-drunk driving law instead. One reason that the per se law has not been effective is that a conviction carries with it a six-month loss of driving privileges, while a refusal to take the BAC test only results in a 90-day suspension, and even that can be liberalized in practice. The per se law, as written, includes a fair number of defendant-friendly provisions, among which is the ban on using the per se law in conjunction with a drunk-driving checkpoint. Further, per se doesn't really mean per se in South Carolina, as the Observer article explains:
Unlike the laws in other states that make it illegal to drive with a blood alcohol concentration of 0.08 or higher, South Carolina adds a list of other factors that a jury can consider. These include:

* Videotape evidence of the person's conduct at the arrest scene and when the DataMaster test is administered.

* Results of sobriety tests given by the arresting officer.

* "Any other evidence of the state of a person's faculties to drive which would call into question the results of a breath or bodily fluid test."

Although those same arguments can be raised in a case brought under the old DUI law, the new law says drivers can demand that the judge read them to the jury. The judge must also instruct jurors that "the totality of the evidence produced at trial may be used by the jury to determine guilt or innocence."
In the last (approximately) three and a half years, South Carolina state troopers "wrote 728 tickets charging drivers with violating the per se law, but 32,205 tickets under the old DUI law, which leaves it up to jurors to decide whether someone was too drunk to drive."

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