DUI and The Right to Counsel – The Lovely Law Firm
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DUI and The Right to Counsel

What is the DUI Exception to the Constitution?

Have you heard of the “DUI exception to the Constitution?”

Most people have not, because it’s not really a thing. Except, it is in South Carolina. The law just doesn’t call it that nor will you find it in any written appellate opinion…

If you are pulled over on suspicion of DUI in SC, you will not enjoy all the legal protections that are promised by the Bill of Rights. Politicians give DUI a special place in their “get-tough-on-crime” campaigns. Lobbying groups such as Mothers Against Drunk Driving relentlessly push for harsher penalties and legislators are listening.

And, SC appellate courts have steadily carved out exceptions to some of our most basic constitutional rights in driving under the influence cases.

DUI and The Right to Counsel

The Sixth Amendment to the Constitution guarantees the right to counsel at every critical stage of a criminal proceeding.

Except when you are pulled over in SC on suspicion of drunk driving. When a cop asks you to take a breath test or give a blood sample, you have no right to counsel, according to the courts. Is the moment when a police officer asks you to give them evidence that they will use to convict you not a critical stage of the proceeding?

If you try to assert your right to counsel at that critical stage of their investigation by saying you won’t take a breath test until your lawyer is present, you have legally “refused” the test, and your license will be suspended under SC’s implied consent law.

DUI and Self Incrimination

The Fifth Amendment protects you from being forced to give evidence against yourself.

Except when you are pulled over in SC on suspicion of drunk driving. If an officer asks you to give a breath sample (translation: give evidence against yourself), you can refuse – but you will probably lose your driver’s license, and you could have to attend alcohol education course before you can get it back. You also may have to put an ignition interlock device in your car.

The courts have said these consequences are not “punitive” in nature – they are administrative and therefore do not violate the Constitution. This is what we lawyers call a “legal fiction-” an assertion that is accepted as true by the courts, even though it is not, to achieve a desired result.

DUI and voluntariness

If a police officer takes a statement from you, even if you have been read Miranda rights, your statement can be excluded from trial if it is not given voluntarily. Legally, if you give a statement while you are intoxicated, it’s not voluntary.

Except (are you noticing a pattern here?) when you are pulled over on suspicion of DUI. The state is alleging that you are so intoxicated that your ability to drive is materially and substantially impaired. But, at the same time, they are saying that the statements you made and your decision to take a breath test – while drunk – are voluntary.

I have never seen a statement by a DUI defendant excluded because they were allegedly intoxicated. I have also never seen a breathalyzer result excluded because the defendant’s decision to blow in the machine was not made voluntarily. And yet, the state’s theory in every case is that the defendant was severely intoxicated…

Myrtle Beach DUI Defense Lawyers

If you get pulled over on suspicion of DUI, the deck is stacked against you from the start. You will not get many of the legal protections that are supposed to be guaranteed by the Constitution, because the courts, politicians, and advocacy groups have decided that DUI enforcement is more important than your constitutional rights.

If you have been charged with DUI or DUAC in Myrtle Beach, Conway, or the Horry County area, call the SC DUI defense attorneys at the Lovely Law Firm now at (843) 839-4111 or fill out our online form to set up a free consultation about your case.

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