No one talks about “DUI loopholes” except law enforcement and victim’s advocates – what is a “DUI loophole” exactly, anyway?

South Carolina’s DUI laws are not perfect, but they were carefully drafted with input from defense lawyers, prosecutors, and victim’s rights organizations to balance the interests of everyone involved – we must:

• Protect the rights of drivers who are often wrongfully accused of DUI;
• Protect other motorists on SC’s highways; and
• Enforce SC’s laws in a way that is fair and unbiased.

Do SC’s DUI laws have “loopholes” that allow drunk drivers to get away with driving impaired?

What is a DUI Loophole?

What is a “legal loophole,” and why do advocacy groups like MADD claim that SC has “DUI loopholes” that allow defendants to get away with drunk driving?

What’s a Legal Loophole?

A “legal loophole” is what police and prosecutors call it when a case is dismissed because a constitutional right or statutory right has been violated by the police.

Wait, that doesn’t sound right. Isn’t a loophole a sneaky way to get away with committing a crime?

I suppose it depends on who you ask – if you care about the constitution and a fair judicial system, there aren’t any “loopholes,” just courts enforcing the law and police, prosecutors, or victim’s advocates complaining…

Black’s Law Dictionary defines a loophole as an ambiguous rule or law that allows a person to avoid the law’s intended purpose:

Without violating its literal interpretation, an allowed legal interpretation or practice unintentionally ambiguous due to a textual exception, omission, or technical defect, evades or frustrates the intent of a contract, law, or rule.

Wikipedia has a similar definition – an ambiguity or inadequacy in a law that be used to avoid the law’s purpose:

A loophole is an ambiguity or inadequacy in a system, such as a law or security, which can be used to circumvent or otherwise avoid the purpose, implied or explicitly stated, of the system. It would be thus connected with a well-known in civil law legal systems intra legem gap, interpretational gap or indeterminacy gap.

Originally, the word means an arrowslit, a narrow vertical window in a wall through which an archer could shoot.

So, Why Does MADD Keep Talking About DUI Loopholes?

First, MADD will continue to push for ever-harsher DUI laws and penalties nationwide. It’s their reason to exist – once they have persuaded every legislature in the nation to pass zero tolerance laws where drivers are convicted based on probable cause for the odor of alcohol, they will probably start lobbying for the death penalty for DUI convictions.

For MADD, as well as some victim’s advocates, law enforcement, and prosecutors, any law that requires dismissal because of a procedural failure is a “DUI loophole.” So, what are these loopholes?

What is the SC DUI Loophole?

The part of the SC DUI law that MADD is complaining about is the mandatory videotape requirements found in SC Code Section 56-5-2953. It’s really not that difficult – the law requires that an officer record a DUI stop, and the recording must:

• Begin no later than the officer’s blue lights are activated (this is automatic in patrol cars, easy enough);
• Include any field sobriety tests;
• Include the arrest; and
• “Show the person being advised of his Miranda rights.”

If there is a reason the officer cannot record – if it is impossible under the circumstances or if the equipment malfunctions, it is excused if the officer submits an affidavit explaining why there the recording was not possible.

In City of Rock Hill v. Suchenski, and later cases, the SC Supreme Court held that the language in 56-5-2953 is unambiguous – if the officer does not comply with the mandatory requirements and a valid affidavit is not submitted, the remedy is dismissal.

Why Do We Have Videotaping Requirements in SC?

The purpose of requiring officers to record DUI stops is so that prosecutors, judges, and jurors can have solid evidence of a defendant’s intoxication.

It’s to protect the officer and to help ensure convictions with reliable evidence.

It’s also to protect you and me – believe it or not, some police officers are not truthful, exaggerate, or do not have a clear memory months or even years after a traffic stop. With a recording, everyone can see what happened.

What’s the Truth?

Biased media reports that claim DUIs are being dismissed on “technicalities” or because of a “DUI loophole” are doing a disservice to the citizens of SC and they are capitalizing on the fear-mongering of groups like MADD.

Let’s look at some of the article’s claims:

Taylor was asked to recite the alphabet, starting with E and ending with X.

This is not a valid field sobriety test approved by NHTSA.

There are three “standardized” field sobriety tests that have been approved by NHTSA after research and testing revealed that they provide some indication of a person’s level of impairment. Although none of them are reliable standing alone, when used in conjunction with one another they can give an officer some idea as to whether a person is safe to drive:

• The horizontal gaze nystagmus test (HGN), which is not sufficiently reliable to be admissible in SC unless it used in conjunction with the other two tests;
• The one-legged stand; and
• The walk-and-turn test.

NHTSA found that the other tests that were in use at the time, including recitation of the alphabet, closing your eyes and touching your nose, counting on your fingers, and others, were not reliable and therefore should not be used unless the standardized tests cannot be completed due to physical injury or other reasons.  

Less Than Half of DUI Arrests End in Conviction

First, should we ask what percentage of any criminal arrest ends in conviction for the offense charged? Shouldn’t we put that claim into perspective?

MADD’s SC executive director says, “But find me a person who thinks that less than half the people arrested for DUI weren’t really impaired when they were driving. I don’t buy it.”

I buy it. I believe that less than half of the people arrested for DUI weren’t really impaired when they were driving, based on what I’ve seen in my DUI defense practice.

Maybe he means, less than half the people had nothing to drink – in my experience, police will often arrest people and charge them with DUI if they smell like alcohol. If they later pass the breathalyzer, officers will say they must have been high on drugs. If they pass a drug test as well, what then?

Regardless, his complaint is that cases get dismissed when police officers don’t follow the law. As state representative Todd Rutherford said in the article, “So what law enforcement wants is for us to change the law and bend it, so that they can then abide by it? I’m confused.”

Cases are Dismissed When Officers’ Equipment Malfunctions (No)

A Kershaw County Deputy is quoted as saying,

“I’ve got him admitting, ‘I drank too much.’ I even got him to say, ‘I should not have been driving.’ Man, that’s a slam-dunk case,” he said. “But because my in-car (microphone) battery was getting low, it skipped, and I missed the Miranda rights.”

That sounds frustrating for a police officer. And, maybe a great story to tell your cop friends at the station. Except, the DUI law has an exception written into it for when an officer’s equipment malfunctions – all the officer needs to do is submit an affidavit explaining why the equipment did not work, and the failure to videotape is excused.

So, what really happened?

Changing the Videotape Requirement from “Must” to “Should” Will Fix the Problem (No)

Of course it will – if the statute says “should” instead of “must,” no officer is going to record a DUI stop. They are only recording DUI stops because they know that, if they don’t, the case will be dismissed.

They are only half-a** recording DUI stops as it is, and then complaining that cases are dismissed because they are not following the law. So, what problem would that fix? If the problem is, “they are making me record DUI stops and it’s a pain,” I suppose that would fix it.

But, isn’t the problem how to fairly administer the state’s DUI laws and get convictions of guilty suspects without ruining the lives of people who are not DUI yet who are arrested anyway?

What Would Fix the Problem?

Provide more and better training for police officers. Get rid of officers who can’t follow the law. When police officers comply with the requirements of SC’s DUI laws, which are really not that complicated, officers will make quality DUI arrests and people who are truly guilty of DUI will be convicted more often.

If we did not have a videotape requirement, we would not see the poor-quality arrests that are being made, and more people who are innocent of DUI would be convicted.

Myrtle Beach DUI Defense Lawyers

Your Myrtle Beach DUI defense attorney at Coastal Law will review all the evidence in your case and move to dismiss your case if the officer did not comply with the mandatory videotaping requirements.

Call Coastal Law now at (843) 488-5000 or contact us through our website for a free consultation today.