“It’s not against the law to drink and drive in South Carolina.”
That’s the line many defense attorneys give in opening statements of DUI trials across our state almost every day. And they’re right.
Equally disturbing to learn: Getting behind the wheel after consuming illegal drugs is not, in and of itself, illegal.
As the General Assembly looks again at the state’s DUI laws, we hope legislators will examine the use of illegal drugs by drivers on our roadways.
To convict someone of driving under the influence, it is not enough for us to prove the driver was drinking or even drugging. That’s right. Proof that a driver has used illegal drugs and gotten behind the wheel of a car is not enough to convict. The law requires that we prove that the person was driving “while under the influence” of alcohol, drugs or both to such an extent that his faculties were “materially and appreciably impaired.” The DUI law does not prohibit someone from driving “under the influence” even of illegal drugs, unless we can prove that the driver’s ability to drive was materially and appreciably impaired.
South Carolina’s Legislature has helped law enforcement and prosecutors keep our roads safer by creating a legal, permissible inference that drivers are “under the influence” when their alcohol concentration is a 0.08 percent or greater. If impairment cannot be proven and the alcohol level is 0.08 percent or greater, law enforcement and prosecutors may prosecute a driver for Driving with an Unlawful Alcohol Concentration (DUAC) instead of DUI. In other words, at a concentration of 0.08 percent, a driver is guilty of DUAC.
For all the thought and legislation governing people who drink and drive, our laws largely ignore those who use drugs and drive. Under our law, there is no legal inference that a drugged driver is “under the influence” or “materially and appreciably impaired.” A positive test for marijuana, cocaine, or any other drug is not enough to meet the requirements for conviction.
Furthermore, the Legislature has not even defined what amounts to a positive drug test and laboratories may use different thresholds. To compound these omissions, proof of a motor vehicle collision itself is not always enough to prove beyond a reasonable doubt that a driver was under the influence or impaired.
Prosecutors, law enforcement and jurors know that sober drivers can cause accidents by speeding, crossing the center line, etc. Every car crash does not rise to the level of criminal conduct. Sometimes an accident is just that: an accident.
The Legislature has addressed alcohol levels in drivers, but the difficult question remains of how much drugging is too much. Because drugs can stay in a user’s system long after having an effect or causing a “high,” the Legislature should give prosecutors and juries guidance.
It won’t be easy. In fact, the National Highway Traffic Safety Administration (NHTSA), the federal agency that influences DUI laws across the United States, has noted the difficulty in establishing a relationship between a person’s marijuana (THC) concentration and performance impairing effects. The NHTSA advises against predicting effects a person may experience based upon THC concentration alone. Even so, South Carolina must act to protect its citizens.
Fifteen other states have drugged driving laws that prohibit operating a vehicle with a measurable amount of drugs in one’s body, and 12 of those states apply a zero-tolerance standard. The creation of per se drugged driving laws in South Carolina makes sense when possession itself of many drugs is already illegal.
We are willing to work to establish legal standards for those who drive after using illegal drugs.
We need to put the “under the influence” and “materially and appreciably impaired” debate aside, define what it means to test positive for drugs, and create a per se law against driving after consuming drugs that already are outright illegal.
Scarlett Wilson is the solicitor for South Carolina’s 9th Judicial Circuit (Berkeley and Charleston counties). Greg Mullen is police chief for the city of Charleston.