D. Traffic Offenses
1. Introduction
Chapter 5 of Title 46 of the South Carolina Code sets forth numerous regulations, offenses and penalties pertaining to traffic safety. While all offenses are of statutory creation, some have common law principles as a basis. S.C. Code Ann. § 56-5-30 provides that all provisions of the chapter are to be uniformly applicable throughout the State, but allows local authorities to enact "additional traffic regulations" so long as they do not "conflict with the provisions of this chapter."
Several of the prohibited acts constitute serious criminal offenses. Section 56-5-1030 provides that willful interference with traffic control devices, which results in injury to another, is a felony with punishment of up to ten years incarceration and/or a fine of $1,000. If death results, the punishment increases to that of voluntary manslaughter (not more than 30 years). Most of the offenses, however, involve traffic regulations and are usually traffic/magistrate court offenses.
This section will discuss the offenses of driving under the influence of drugs or alcohol and felony driving under the influence of drugs or alcohol. First, however, this chapter will examine a recent case shedding light upon the Supreme Court's interpretation of the scope of the statutes pertaining to traffic safety.
Section 56-5-20 states that the provisions of the Uniform Act Regulating Traffic on Highways "refer exclusively to the operation of vehicles upon highways, except: (1) When a different place is specifically referred to in a given section; and (2) That the provision of Articles 9 and 23 shall apply upon highways and elsewhere throughout the State." Stone v. State (City of Orangeburg), 313 S.C. 533, 534, 443 S.E.2d 544, 545 (1994). In Stone, the Supreme Court, in a per curiam opinion, construed the scope of Title 56 broadly. The circuit court reversed Stone's magistrate court conviction for leaving the scene of an accident, which occurred in a parking lot. Although the violation clearly fell under § 56-5-20(2)'s Article 9 provision, a later, more specific statute appeared in conflict. Section 23-1-15, enacted to expand police jurisdiction over parking lots, provided that jurisdiction was expanded only for parking lots that had posted signs notifying the public of the jurisdiction. As the lot in Stone had no sign, the lower court found no jurisdiction. The Supreme Court reversed. The Court recognized the general rule that ordinarily specific statutes prevail over general ones. It found, however, that application of this rule would lead to an absurd interpretation if § 23-1-15 were construed to exclude parking lots, when the Legislature clearly intended to expand application of the Act to such lots.
2. Driving Under the Influence and Driving With An Unlawful Alcohol Concentration
a. DUI Generally
In 1998 and 2000, the Legislature modified the definition of the offense of Driving Under the Influence using language similar to that used in State v. Sheppard, 248 S.C. 464, 150 S.E.2d 916 (1966). The new statutory definition is:
(A) 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.....
S.C. Code Ann. § 56-5-2930 (Supp. 2012).
"Under the influence" relates to the effect any substance has upon the mental and physical faculties of the operator of a motor vehicle. "One is under the influence, within the meaning of the statute, when the ingestion of one or more of the substances listed therein has resulted in the impairment of his facilities." State v. Sheppard, 248 S.C. at 466, 150 S.E.2d at 916-17 (1966). It is of no consequence that the defendant drives under the influence of more than one substance. The statute prohibits driving while under the influence of one or several substances, and therefore, only one offense is committed. Driving a motor vehicle while under the influence is prohibited on private as well as public roads. State v. Allen, 314 S.C. 539, 431 S.E.2d 563 (1993).
"One is under the influence, within the meaning of the statute, when the ingestion of one or more of the substances listed therein has resulted in impairment of his faculties. 'Under the influence' means sufficiently under the influence as to impair the ability of such driver to operate the vehicle with reasonable care." State v. Kerr, 330 S.C. 132, 143, 498 S.E.2d 212, 217 (Ct. App. 1998) (citations omitted) (cert. denied, February 5, 1999). In explaining the "reasonable care" standard to a trial jury, the judge should not suggest that the driver must be able to operate the vehicle in the same manner as someone "who ha[s] not drunk any intoxicating beverage." Id. at 144, 498 S.E.2d at 218. The issue is not whether the operator can drive the vehicle in the same manner as someone who has not been drinking or that the driver be drunk or intoxicated. The proper question is whether the driver is impaired to the point that he cannot operate the vehicle in a prudent and safe manner with due regard for the safety of himself and others. Id.
As indicated above, subsequent to Kerr, the statutory definition of DUI was amended specifying adopting the "materially impaired" requirement. The "materially and appreciably impaired" language should be used when instructing a jury on the standard to be proven. However, Kerr's reasoning and the use of the "reasonable care" standard is still appropriate when explaining the level of impairment required to be demonstrated by the evidence.
The term "vehicle" in § 56-5-2930 should be broadly interpreted. Even a moped is a vehicle as contemplated by the DUI statute. State v. Singleton, 319 S.C. 312, 460 S.E.2d 573 (Ct. App. 1995). Any type of moving vehicle, the operation of which is covered by Chapter 5 of Title 56, is a vehicle under § 56-5-2930.
The operator must be in the act of driving the vehicle to violate the statute. Simply operating the vehicle's systems, while not actually being in motion, is not sufficient. "We now hold that within the meaning of section 56-5-2930, the word 'drive' requires the vehicle to be in motion to constitute the offense. This requirement may be met by either direct or circumstantial evidence." State v. Graves, 269 S.C. 356, 364, 237 S.E.2d 584, 588 (1977). Incidental movement of the vehicle without an affirmative act by the driver is not sufficient to establish the element of driving the vehicle.
Proof of the offense, as with any other criminal offense, may be established by a number of methods. Direct and circumstantial evidence is equally valid, and most cases involve a combination of both. For a number of years, there existed the mistaken concept that, unless the arresting officer personally observed the defendant driving, no arrest could occur because the offense was a misdemeanor committed outside the officer's presence. See State v. Mims, 263 S.C. 45, 208 S.E.2d 288 (1974). This issue was authoritatively laid to rest in the case of State v. Martin, 275 S.C. 141, 268 S.E.2d 105 (1980). In Martin, the issue involved whether the trial court correctly granted a new trial based upon the admission of the breathalyzer test under S.C. Code Ann. § 56-5-2950. The trial court had found the initial arrest illegal, because it was a warrantless arrest for a misdemeanor committed outside the officer's presence. The South Carolina Supreme Court reversed, holding:
We, therefore, conclude from the foregoing statutes and decisions that, while generally an officer cannot arrest, without a warrant, for a misdemeanor not committed in his presence, an officer can arrest for a misdemeanor when the facts and circumstances observed by the officer give him probable cause to believe that a crime has been freshly committed.
Martin, at 145-46, 268 S.E.2d at 107 (emphasis in original).
In State v. Morgan, 282 S.C. 409, 319 S.E.2d 335 (1984), the Court held that a case based primarily upon the defendant driver's admissions was sufficient to submit the case to the jury. See also State v. Sawyer, 283 S.C. 127, 322 S.E.2d 449 (1984). The Court of Appeals has also found that circumstantial evidence of intoxication is sufficient to deny the defendant's motion for a directed verdict in the DUI case of State v. Goode, 305 S.C. 176, 406 S.E.2d 391 (Ct. App. 1991).
The Legislature made significant changes to the DUI laws in the 1998 session, including: a .002 tolerance policy on a minor's use of alcohol, § 56-1-286; implied consent for felony DUI requiring the suspect to submit to chemical, blood and urine testing or a combination of the tests, § 56-5-2946; and creating a collateral crime of child endangerment for DUI, DUAC, Felony DUI or failure to stop for a blue light if there is a child under the age of 16 in the car, § 56-5-2947. These changes are addressed in more detail in sections that relate to the subject of the amendments.
b. Driving With An Unlawful Alcohol Concentration (DUAC)
The Legislature, in the 2000 and 2003 sessions, established and then amended the new offense of Driving with an Unlawful Alcohol Concentration (DUAC) (.008% or more). See S.C. Code § 56-5-2933 (Supp. 2012). In creating the new, alternative offense, the Legislature did not do away with the existing DUI statute, but supplemented it with a separate new offense. DUAC carries the same penalties as DUI and is an easier-to-prove method for regulating the operation of motor vehicles while imbibing alcoholic beverages.
Persons arrested for DUI may...
