DUI: Drinking and Driving is Illegal is a Myth


Misinformation as to South Carolina DUI law is more than common. I refer to these items of misinformation as DUI “myths,” and on occasion, they pose a threat to freedom and justice. One myth is that it is illegal to drink alcohol and drive. The current problem is that many law enforcement officers now believe this myth, and are enforcing the DUI law in conformance with the myth, as opposed to the law. It is understandable that given the dedication of officers, the zeal they have to protect and serve, and the gritty situations they often must witness, that some officers would opt to keep anyone from driving who has consumed alcohol. However, this ignores the law, as well as potentially punishes responsible Americans who are harmlessly enjoying their lives and their freedom by having an alcoholic beverage and driving while not impaired by the alcohol.

Certainly, there are others who as well believe it should be illegal to drink any amount of alcohol and drive. In fact, there are those who believe it should be illegal to drink alcohol altogether. However, it is fundamentally wrong, unconstitutional and dangerous to disregard the actual law and enforce what one believes should be the law.

It is difficult not to conclude that law enforcement proceeds as if it is illegal to drink alcohol and drive. Television broadcasts in the form of public service announcements / commercials by law enforcement agencies regularly and expressly state as much. The broadcast generally depicts a uniformed officer seemingly ready to arrest any who gets in his way. He advises the viewing audience that: “If you drink and drive, we will catch you . . . and you will go to jail.” I have seen this identical sentiment high atop the city on billboards.

What is the problem with such a statement? Well, to start, it is simply not the law of South Carolina. What is illegal is Driving under the Influence of alcohol, drugs, or a combination thereof (DUI), and there is a huge, and obvious, distinction between drinking and driving and DUI.

South Carolina Code, Section 56-5-2930(A), states that:

“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.”

Additionally, “Faculties” [as referenced in the above statute] must include both mental and physical faculties, as the South Carolina Supreme Court explained in the case of State vs. Sheppard, 288 S.C. 464 (1966).

So, while the fact that an individual consumed alcohol and drove an automobile is not a violation of the law, the real threat to the public is not that they misunderstand the law, it is that law enforcement has moved from merely misstating the law to apparently enforcing this myth as law.

More frequently, I see in my practice of criminal law a traffic stop demonstrating this observation. For example, a traffic stop is initiated for speeding, improper license tag, weaving, or any number of minor traffic violations, and if the driver has consumed alcohol, jail is almost certainly around the corner regardless of whether the driver is “impaired.” The officer will generally note the “odor of alcohol,” and have the driver exit the vehicle. This conduct ignores the fact that the odor of alcohol can, at most, simply indicate that an individual may have consumed alcoholic. The odor of alcohol is irrelevant as to the quantity of alcohol consumed.

Once the driver is removed from the vehicle, he can generally expect not to reenter the vehicle. At this juncture, field sobriety tests will be administered, not, as once was the case, to determine if an individual is impaired, but because these tests are designed to make an individual look impaired. Remember, as stated above, to violate the DUI law, one’s mental and physical faculties must be materially and appreciably impaired. The common field sobriety tests include such activities as the Walk and Turn test and the One Leg Stand test, both tests including very specific and detailed instruction on precisely how to walk, pivot, and turn. Often, the one leg stand test, where the individual holds up one foot to a specific height, requires the individual to hold this position for anywhere from 10 seconds to 20 seconds, or often until the officer says stop. Further, the instruction phase prior to the tests consists of a fairly long list of rules to follow while taking the test. The point is that neither of these tests can fairly be said to gauge an individual’s normal faculties, because no one normally engages in such activities. While claiming to test an individual’s normal mental and physical faculties, the officer is actually requiring an individual to attempt a series of abnormal activities.

Therefore, the attempt at these tests will lead to arrest, incarceration, the posting of a significant monetary bond, a nice picture in any one of many “jail bird” newspapers and websites, and significant attorney fees, for an effective criminal defense attorney, and a long wait for one’s day in court and vindication. The root of all the above very often resulting from one’s decision to enjoy a glass of wine with dinner, or a beer with an old friend, or an alcoholic beverage at one’s book club meeting. The fact that an officer learns, by way of a routine traffic stop for any one of many minor traffic violations, that the driver has ingested any amount of alcohol creates a very high likelihood of arrest, jail and all that goes with that.

Based on legal rulings over the years clearly holding that driving is a privilege and not a right, I can see no impediment to the state legislature, if they so desire, making it illegal to drive after having any alcoholic to drink. However, as that has not occurred, the practice of arresting and incarcerating an individual for drinking and driving when not impaired must stop. Perhaps the first step should be to discontinue the widespread propaganda contained in the “drinking and driving” advertising campaigns, which can only serve to encourage law enforcement to continue this practice, although, maybe that is its purpose.