The missing word in Cindi Scoppe’s column today

I refer you to the ending of Cindi Scoppe’s column today, which explains that while we do need to spend more to upgrade our roads, their condition is not the greatest contributor to traffic fatalities in our state. She lists some of the other factors:

… The biggest problem: The Legislature refuses to treat drunk driving the way it treats other highway safety laws and the way all the other states treat it. Rather than making it illegal per se to drive with a blood-alcohol content of 0.08 percent, it practically begs jurors to conclude that a driver with a BAC of 0.08 percent, or higher, didn’t really look that drunk.

To understand how absurd our law is, imagine being clocked at 90 mph in a 55 zone but being found not guilty because you convinced a jury that you were in complete control of the vehicle the entire time. Our laws don’t even give you a chance to try that sort of defense — unless you’re charged with drunk driving.

Of course, drunk driving isn’t our only problem.

Distracted driving is a huge problem, but we don’t restrict cell-phone use — even among drivers who are so inexperienced that we don’t let them drive at night or with friends in the car.

Our death rates are high for motorcyclists, but we don’t require adults to wear helmets.

Elderly drivers are more dangerous than all but the youngest drivers, but we don’t require road tests or more frequent license renewals for older drivers. (We do require a vision test every five years, rather than the normal 10 years, but the 10-year standard is just asking for trouble for everyone.)

We prohibit the use of traffic and red-light cameras.

We don’t have particularly tough penalties for speeding in work zones.

And the list goes on.

It’s all an outgrowth of our resistance to anyone telling us what to do. And it all contributes, a lot more than the condition of our roads, to our deadly highways.

She left a word out of that penultimate sentence. She should have said, “It’s all an outgrowth of our childish resistance to anyone telling us what to do.”

Maybe she thought it would be redundant. Or maybe she didn’t want to unfairly malign children by using that modifier to explain the hard-headed, self-destructive, don’t-care-what-harm-I-do-to-others attitude that infects our politics, and keeps us from having sane, sensible laws that would help us be healthier, wealthier and wiser.

Why do I say “childish?” Because of my extensive experience with 2-year-olds, and then later with teenagers, whose insistence upon doing what they want to do, and doing it their way, without adult interference, is such a danger to them and others.

My grandson is 2, and up until know he has been a compliant child, receptive to adults’ caring influence. Now, he’s a sweet as ever, but his favorite word is “Me!” As in, he wants to fasten the straps on his car seat himself, which is worrisome. Fortunately, it hasn’t yet occurred to him to go without such a restraint — which makes him more mature than the sort of adult voter who keeps us from having reasonable laws in South Carolina.

21 thoughts on “The missing word in Cindi Scoppe’s column today

  1. Doug Ross

    “We prohibit the use of traffic and red-light cameras.”

    Those cameras have not been proven to be effective at doing anything but lining the pockets of the politicians who approve them and the companies that provide them. Here’s one story from yesterday about contract rigging in Chicago.

    “Karen Finley, one of several Redflex executives dumped amid the scandal, was indicted along with former city official John Bills and a longtime Bills friend accused of being the bagman in a $2 million bribery scheme that ran from 2002 until 2012, when the Tribune first disclosed Bills’ ties to the company.”

    There is no proof that these cameras do anything meaningful in terms of safety… they are just a revenue generator.

  2. Doug Ross

    As for the other items, here’s one libertarians view:

    – Enforcing a 0.08 blood alcohol limit is absolutely fine. People driving while intoxicated are a hazard to others. This is simple libertarianism – do no harm to others. But one of the reasons this WON’T happen is because of all the non-term limited lawyer legislators who make a fortune fighting DUI cases in court. Whatever happened to Ted Vick? Is he still trying to get the pebble out of his shoe?

    – Texting while driving. It’s unenforceable. You’d only catch a very, very small percentage of people who do it. And trying to define distracted driving will be a lawyer’s nirvana. Better to implement harsher punishments for drivers who cause accidents where it can be proven they were distracted.

    – Wearing motorcycle helmets. Nope. Some people are stupid. They assume the risk.

    – Road tests for elderly. Sure. It makes sense. Won’t happen because politicians fear backlash from elderly voters. Might be better for the DMV to implement a policy where a family member or physician can request a road test or for insurance companies to have the option to require a road test in order to rate drivers.

    – Speeding in work zones. How frequently are there accidents? Speeding is speeding. Extra fines won’t make any measurable difference.

    1. Bryan Caskey

      “Wearing motorcycle helmets. Nope. Some people are stupid. They assume the risk.” -doug

      I figured you, as a libertarian, would be anti-helmet, as it’s not a “harm to others” issue. Do you also extend this to seat-belts? What about to children?

      What if the law said you had to wear a helmet and wear your seat-belt until you were 18 or 21? For or against?

      1. Doug Ross

        Seat belts and helmets for kids, yes. For adults, no. And by no, I mean there should be no law against it. If medical and auto insurance companies want to implement a way to charge higher deductibles, etc. for cases where a seat belt or helmet was not worn in an accident, that’s fine. Requiring air bags in cars is fine also.

        An adult (defined by age 18 for simplicity’s sake) should be able to make whatever choices he wants to make and experience the consequences of those choices.

        1. Doug Ross

          And I am not opposed to the government educating the public on the consequences of certain behaviors. But, really, if someone doesn’t wear a motorcycle helmet, do you think they don’t understand that an accident could cause major head trauma?

  3. Bryan Caskey

    Yeah, I was about to say the same thing about red-light cameras. I’m with Cindi on everything else, though. I’m not sure it’s a “don’t tell me what to do” mentality that’s the obstacle, though. I don’t know of anyone who argues in favor of relaxing the penalties for traffic violations.

    Also, I’m not a criminal defense attorney, so I can’t really speak to the DUI issue she’s referring to. I was hoping that her piece would explain what the issue is, but it doesn’t. I kind of already thought that the violating the BAC limit was a violation, and I’m not aware of an exception to it along the lines of “Yeah, I was over the legal limit, but I was in control of the car” Again, I can’t really speak to this, but I would be surprised if a defendant can concede being over the legal limit and still obtain a not-guilty verdict.

    Don’t get me wrong, I’m not defending the law, I’m honestly not sure what her critique is. Does anyone have any specific idea of what Cindi is getting at with the DUI law criticism? I could go research the statute and case law, but maybe someone can just drop some knowledge on me.

    Other than the red-light cameras, sure. Increase the penalties for violations, put in a helmet law, more vision tests, make distracted driving illegal, all that.

    1. Brad Warthen Post author

      It’s not illegal per se. The defense attorney has wiggle-room to present evidence that, no matter what the machine said, the client was still in control. In other words, we have a sort of “I can hold my liquor” defense…

  4. Chris

    The people of South Carolina are generally recognized for being very respectful and considerate. But put them behind the wheel of a car (or on a motorcycle seat) and you’ll quickly note that being polite to others and respectful of the law takes a back seat.

    UPS Drivers almost always signal their intention to make a turn. In contrast, we see that most police cars have broken turn-signals.

    1. Kathryn Braun Fenner

      Charleston is supposedly the most polite city on the planet, but drive there? All bets are off!

  5. Bryan Caskey

    Ok, did some quick research. The answer to “Is it illegal per se to be .08 BAC?” is kind of yes and no.

    The DUI law: (SC Code Ann 56-5-2930) states: ” It is unlawful for a person to drive a motor vehicle within this State while under the influence of alcohol to the extent that the person’s faculties to drive a motor vehicle are materially and appreciably impaired, under the influence of any other drug or a combination of other drugs or substances which cause impairment to the extent that the person’s faculties to drive a motor vehicle are materially and appreciably impaired, or under the combined influence of alcohol and any other drug or drugs or substances which cause impairment to the extent that the person’s faculties to drive a motor vehicle are materially and appreciably impaired. A person who violates the provisions of this section is guilty of the offense of driving under the influence and, upon conviction, entry of a plea of guilty or of nolo contendere, or forfeiture of bail must be punished as follows…”

    Obviously, there’s no mention of any quantifiable standard. This seems to be where you can introduce evidence that you were not impaired. I get that. However, there’s another separate statute.

    SC Code 56-5-2933 states: “It is unlawful for a person to drive a motor vehicle within this State while his alcohol concentration is eight one-hundredths of one percent or more. A person who violates the provisions of this section is guilty of the offense of driving with an unlawful alcohol concentration and, upon conviction, entry of a plea of guilty or of nolo contendere, or forfeiture of bail must be punished as follows…”

    in the second statue, it’s a specific offense to drive if you’re over the limit. That’s the sole element of the crime. It doesn’t matter how wonderfully you’re driving. Obviously, you can’t be convicted of both of these crimes for the same incident, but we have a statute that allows for per se violations to be prosecuted.

    If my reading of the statute is correct, I don’t see what Cindi’s objection is, as it seems as though the legislature has created a per se violation. This makes sense to me, because you’re not required to blow into the breathalzyer machine if you don’t want to. (Your 5th Amendment Right). In a situation where the defendant fails to blow, they are depriving the state of the necessary evidence to prosecute under the per se statute. However, with our implied consent law, you lose your SCDL automatically by failing to blow, and you don’t get it back until after trial, which can be a long time. Accordingly, there’s a big downside to asserting your 5th Amendment right to not blow.

    Am I reading this wrong, missing something, or is Cindi a little off base here?

      1. Brad Warthen Post author

        Cindi calls your attention to the boldfaced part below:

        ​SECTION 56-5-2933.
        (J) Nothing contained in this section prohibits the introduction of:

        (1) the results of any additional tests of the person’s breath or other bodily fluids;

        (2) any evidence that may corroborate or question the validity of the breath or bodily fluid test result including, but not limited to:

        (a) evidence of field sobriety tests;

        (b) evidence of the amount of alcohol consumed by the person; and

        (c) evidence of the person’s driving;

        (3) a video recording of the person’s conduct at the incident site and breath testing site taken pursuant to Section 56-5-2953 which is subject to redaction under the South Carolina Rules of Evidence; or

        (4) 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.

        At trial, a person charged with a violation of this section is allowed to present evidence relating to the factors enumerated above and the totality of the evidence produced at trial may be used by the jury to determine guilt or innocence. A person charged with a violation of this section must be given notice of intent to prosecute under the provisions of this section at least thirty calendar days before his trial date.​

        That’s a big source of trouble (but not the only one). She says “This sort of language is not common to per se statutes in other states.”

  6. Bryan Caskey

    Well, I can kiiiiiiiiiiind of see why you’d have that provision, but frankly, I think it’s not even necessary to have it in the statute.

    Maybe in the one in a million chance where a machine was on the fritz or something, a person’s faculties would be maybe something a defendant would assert, but in all likelihood, the solicitor is going to be introducing evidence that the machine is working properly, was tested, all that.

    I just don’t see the problem with the defined elements of the crime here. The defendant can introduce whatever the heck he wants. Unless the defendant convinces 12 people that the machine didn’t work properly, he’s guilty.

    .08 = guilty

    I honestly don’t see a lot of juries buying the idea that because a person “looked OK” that the machine was faulty somehow.

    1. Bryan Caskey

      To me, that #4 is a “catch all” provision, that allows for special circumstances that the legislature may not be contemplating. I think they’re erring more on, this law doesn’t prohibit you from entering evidence in your defense, which is fine.

      Again, I read this as saying the evidence can’t be used to disregard the machine’s reading. The evidence can only be used to convince the jury that the machine didn’t work.

      If you believe the machine worked properly, defendant is guilty.

  7. Bryan Caskey

    I guess where I’m at on this whole thing is that I find Cindi’s piece to be misleading.

    Her statement of “Rather than making it illegal per se to drive with a blood-alcohol content of 0.08 percent, it practically begs jurors to conclude that a driver with a BAC of 0.08 percent, or higher, didn’t really look that drunk.” (emphasis mine)

    It’s very clear that there actually IS a per se law.

    Heck, the Summary Court bench book defines it as “DUI per se”. (Scroll all the way to the bottom of that link)

    To say that the legislature hasn’t enacted a per se DUI law is simply a misstatement of the law. It’s just not correct. It took me about 30 solid minutes of looking at the statute and thinking about in while eating my lunch at my desk to figure that out. (and I’m just a civil litigator, not a criminal defense attorney)

    If Cindi doesn’t like one of the provisions of allowing evidence into prosecutions of the DUI law, that’s cool. But she needs to say that. That’s a perfectly legitimate argument to have about this, and there is certainly a gray area. Maybe the law isn’t so great. Maybe if she had quoted some solicitors, and been up front about the fact that there IS a per se law, but maybe it’s not perfect, then I wouldn’t have a problem with the piece. Heck, that would have been a MORE CONVINCING piece.

    As it is, I find her piece inaccurate at best, but more appropriately labeled “misleading”. As every lawyer is always told by Judges: When you try to hide the bad facts in your case, you lose credibility. A good advocate addresses the bad facts head on. I wish Cindi had done that in this piece, rather than making me go into Matlock-mode to figure out what the law actually is.

  8. Brad Warthen Post author

    My understanding, from memory (and Cindi’s column of a couple of weeks ago sort of enforces this), is that in practice, it is sufficiently hard to convict of DUI in SC that police and prosecutors frequently opt for less-serious charges. In the anecdotal lede of that column, she tells of an incident in which the cop didn’t have video footage to help prove the subject was drunk, so he charged her with disorderly conduct instead.

    Again, my memory is imperfect — Cindi always wrote about this, and I’ve bothered her enough on a Friday (the worst day of the week at the newspaper) — but if I remember correctly, enforcers of the law have found it harder to get convictions under our laws than their counterparts in other states. And defense attorneys in the Legislature have made sure to leave their clients room to wriggle out of a conviction.

      1. Bryan Caskey

        See, now that would be a good opinion piece that I would love to read. “Prosecutors rarely use the per se DUI law because….” Give me some quotes from various solicitors about why they don’t use the per se law, what they think the effect is, how it could be modified to improve the criminal justice system. I would love to read that piece. Heck, I’m supportive of a per se DUI law that is enforceable.

        Rather, she just ignores the fact that there IS actually a per se law, and I find that very off-putting.

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