LETTERS TO THE EDITOR > Page 1, 2
A Privilege, Not a Right
I wonder if the South Carolina Law really says that DUI offenders give up the right to trial by jury?
Oregon, like many other states, has an implied consent law, which states, in effect that if you want a license to drive in Oregon, you agree to submit to a breath test (or UA) when requested by an officer of the law, who has probable cause to believe that you are driving under the influence.
Now if you test at .08 or above (or .04 if you have a CDL -- or test positive for any amount of alcohol if you are under 21 years of age), and it is your first offense, your license will be suspended for 90 days. (One year suspension if you refuse the breath test.)
These "administrative sanctions" or administrative suspensions take place because you have given your implied consent. There is no trial involved at this point, but you are give a 15-day window to apply for a DMV hearing to fight the suspension.
If the suspension is upheld by the hearing officer, you may be eligible for a hardship permit after the first 30 days of the suspension.
When you are arrested for DUI following a breath test failure, you may be incarcerated, released on bail, or released on your own recognizance. This is no different than many other misdemeanor arrests.
When you appear in court, you are given the opportunity, if it is your first DUI in the past 10 years, to apply for Diversion -- that is, Diversion from prosecution, where you agree to do a treatment program, pay all fees, and to refrain from drinking and driving for the next 12 months -- a kind of bench probation.
Notice at this point you are not convicted of anything. If you complete Diversion satisfactorily, your case is dismissed and there will be no record of a DUI conviction. (There will be a record of a breath test failure or refusal and also a notation that you were on Diversion for 12 months.)
You have a right to a trial at any point. You do not have to opt for Diversion. If you feel that you are not guilty can you argue the case, at which point -- as with every trial -- evidence will be introduced, witnesses will be called and so on.
I suspect that this is the way DUI legal per se law are in most states -- the breath test failure is ground for suspension, a person is eligible for an administrative hearing, and above all, ultimately, no one is denied a right to a trial.
If this is correct -- and I haven't read the South Carolina proposed legislation -- I suspect what people are objecting to is the immediate administrative suspension of the license. Well, tough. Driving has been determined not to be a constitutional right, but a privilege. And if one of the conditions of getting a license is implied consent, that's the way the privilege works.
I remember all too well our pre-libertarian days in the early 1980s when drivers had no implied consent, when drivers could beat a DUII simply by getting an attorney who would negotiate a plea to a lesser charge. I have seen people from that era who had 15 DUI arrests or more, and who never had a license suspension once, not one time.
In Oregon, anyhow, those days are over. No more plea negotiations for DUI.
You can introduce evidence at a trial that there was no probable cause for being stopped by an officer. You can introduce evidence that you were not "intoxicated". You can challenge the breathalyzer.
Most DUIs don't go to trial because it's too expensive -- and, most likely, drivers are guilty. (Not all, must most, in my experience -- guilty at least of driver over the legal limit.)
Should the legal limit be lower? Canada thinks so. Should it be higher? People who like their booze think so. If there is no legal limit -- if there is no level at which a person can be determined to be driving under the influence, then what?
Your editorial raises some interesting issues, but it doesn't propose any solutions -- what is the alternative to the DUII legal per se position? Back to the good old days, no presumptive limit, let them drink and drive, and let's all take our chances?
Mark Worden
I think anyone caught driving under the influence is just as guilty as a
person possessing a loaded wepon and first offenders should be jail. After
all the life you save could be my child and God forbid my child were injured
or killed by someone under the influence I would be the judge and excutioner
so help me God.
Tommy G.
Criminal Offense
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