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By RICK BRUNDRETT
Editor’s note: This is the third story this week in a series of articles on DUI issues facing South Carolina. The first two stories can be found here and here.
A heavily amended, drunken-driving reform bill that died in June is expected to be reintroduced in some form when the Legislature reconvenes in 2027.
But whether pro-prosecution and defense-friendly lawmakers can reach any final compromise next year remains to be seen.
In a recent interview with The Nerve, Sen. Greg Hembree, R-Horry, and a former longtime solicitor, said he expects Sen. Tom Davis, R-Beaufort, who was the bill's main sponsor, to reintroduce proposed reforms, adding that he would help Davis, who is a real estate attorney and the Senate Labor, Commerce and Industry Committee chairman, in drafting new legislation.
“We’re starting with the conference report,” Hembree said. “It won’t be exactly the conference report – the bill that is pre-filed – but what we intend to do is to take that as a starting point and put some polish on some spots. There were some areas that were not quite right.”
Hembree, who is the Senate Education Committee chairman, said he hopes the 46-member Senate can get a new bill to the 124-member House by the end of next January or early February, noting: “I know the Senate Republican Caucus is very interested and determined to do reform. I think the Senate overall is interested in reform, not just us. I think the Democrats recognize the problems, too.”
But fundamental differences remain among stakeholders contacted by The Nerve.
“I’m going to be honest about what the problems are in the state and what’s contributing to these problems,” said Stan Overby, a veteran DUI defense lawyer and former prosecutor who is a member of the South Carolina Association of Criminal Defense Lawyers (SCACDL) and serves on its legislative committee.
He added, though: “I’m not going to just put it on a bunch of faceless individuals who are accused of DUI. … This is a crime that anybody can commit – doctors, lawyers, judges, nurses, teachers, legislators.”
Said Lisa Catalanotto, an attorney and executive director of the state agency known as the S.C. Commission on Prosecution Coordination (SCCPC): “In general, there needs to be a simplification of the law, and to allow law enforcement and prosecutors to do their job.”
“The problem is the DUI law that’s developed since 1991 is a defense attorney’s dream because it creates all these loopholes,” said Barry Barnette, the 7th Circuit solicitor for Spartanburg and Cherokee counties.
Longtime victim advocate Laura Hudson, who is the executive director of the South Carolina Victim Assistance Network (SCVAN), said she believes law enforcement overall does a “great job” making DUI arrests statewide, though she added that relatively light treatment of repeat offenders by prosecutors and judges has hurt officers’ morale.
“I don’t know how they keep on arresting the same people,” Hudson said. “They get tired of it because nothing significant happens to these people, so they’re very demoralized.”
Steven Burritt, the regional executive director of the South Carolina, North Carolina and Tennessee affiliates of Mothers Against Drunk Driving (MADD), said in the end, victim advocates and law enforcement agencies opposed the failed bill primarily over a House proposal that only officers who are certified “drug recognition experts” (DREs) could determine probable cause for blood draws of drivers suspected of being under the influence of drugs – a growing problem statewide.
“We barely have 100 of them (DREs) in the state,” he said. “A lot of law enforcement agencies could not live with that. They were like, ‘This will sink all of our drug-driving cases.’”
Burritt continued: “The rest of us were sort of like, ‘But there’s so much good stuff we’ve been wanting for 20 or 30 years.’ So it really came down to, how good do you think the good stuff is to live with really awful one or two new pieces? And some people couldn’t do it, and some of us were like, ‘It might still be better overall.’”
Long legislative road
The initial version of the Senate bill (S.52) was filed on Dec. 11, 2024, formally introduced on Jan. 14, 2025, and referred to the Senate Judiciary Committee, where it stayed for the remainder of the 2025 legislative session. This year, the full Senate in January voted to put the bill on “special,” or priority, order, and unanimously passed it with amendments in early February.
“The original Senator Davis bill, when he filed it, it had maybe 12 or 13 things, and to us, that was like, ‘I can’t believe there’s so much in one bill,’” Burritt recalled. “And then the Senate got a hold of it the first three weeks of session, and they tripled it in size.”
The House amended the bill further and unanimously passed it at the end of April but didn’t agree in mid-May to subsequent changes made by the Senate. A six-member conference committee was appointed to work out differences between the chambers’ versions; panel members included Hembree and Sens. Brian Adams, R-Berkeley, and Deon Tedder, D-Charleston; and Reps. Jeff Johnson, R-Horry, who was the chairman of the House Judiciary Criminal Laws Subcommittee, and subcommittee members Robby Robbins, R-Dorchester; and Seth Rose, D-Richland.
After the conference committee, however, couldn’t agree over a month on a compromise version, it sought “free” conference powers under chamber rules to rewrite the bill. But that would have required two-thirds approval from both chambers, which the Senate failed to pass on June 25, effectively killing the bill.
Despite both chambers unanimously passing their respective bill versions earlier in the year, “it sort of all fell apart on that last day,” Burritt said.
The Legislature runs on a two-year cycle; given this year was the second year of the cycle, any bill that didn’t pass would have to restart from the beginning of the approval process in 2027.
Five of the conference committee members are attorneys. Robbins, who, like Hembree, is a former top solicitor, and Rose practice DUI defense among other types of cases, according to their respective law firms’ websites.
Hembree, who served as the 15th Circuit solicitor for Horry and Georgetown counties from 1999-2012, confirmed to The Nerve that he currently practices DUI defense along with his two law firm partners, though he noted in a written response about his role as a lawmaker: “Many of my views are pro-public safety. They are not in my financial best interest.”
Robbins, a former longtime deputy solicitor in the 1st Circuit, which covers Calhoun, Dorchester and Orangeburg counties, and who served as the solicitor in 2004 after being appointed by then-Gov. Mark Sanford to fill a vacancy, didn’t respond to The Nerve’s written recent request for an interview.
Hudson, of SCVAN, said she became angry during the conference committee debate after listening to statements by Robbins, Rose and Tedder “about how slack law enforcement was.”
“It wore the rest of the enamel off my teeth,” she recalled. “It’s all I could do not to stand up and scream, ‘It’s not law enforcement; it’s the courts and the influence of defense attorneys on the courts.’”
Areas of agreement
The initial version of S. 52 would have made a number of changes to the state’s DUI laws, including, for example:
· Allowing sentences combining both fines and jail time for misdemeanor driving under the influence (DUI) and driving with an unlawful alcohol concentration (DUAC); current law permits only specified fines or jail sentences, but not both.
· Giving judges the authority to require convicted defendants to participate in DUI victim impact panels.
· Removing a current restriction on the requirement to install an ignition interlock device, which prevents drivers from starting their vehicles if they have been drinking, during pending contested administrative hearings on license suspensions.
· Creating new crimes of second-degree felony DUI causing moderate bodily injury, felony reckless driving causing great bodily injury and reckless driving causing moderate bodily injury.
· Allowing judges to require drivers convicted of felony DUI causing death or disability of parents or guardians to pay child support as restitution during the defendants’ probation.
· Expanding the list of medical professionals authorized to draw blood samples to include phlebotomists and emergency medical technicians.
· Increasing the length of driver’s license suspensions for refusing to take breath tests.
· Banning the suppression of law enforcement video recordings at incident and breath test sites if officers “substantially” complied with the recording requirements under the law.
The House and Senate eventually agreed on some proposals, including increasing DUI penalties and creating a new felony “moderate injury” DUI crime. Both chambers also would have allowed first-offense DUI and DUAC offenders to participate in pre-trial intervention (PTI) programs, which can result in the dismissal of charges if successfully completed.
‘Nobody likes needles’
But differences remained between the chambers’ versions, notably the debate surrounding “drug recognition experts” (DREs). Under the final House version, an officer could request a driver suspected of being under the influence of drugs only if probable cause was established by a certified DRE; the final Senate version didn’t include that requirement.
The May Senate version of the bill also included THC – the active ingredient in marijuana that produces the intoxicating “high” – as well as THC variations, in the section of the DUI law authorizing arrests for driving while “materially and appreciably impaired.”
Police officers can ask under the state’s “implied consent” laws that those suspected of driving under the influence of drugs take urine or blood tests, though they can’t require those tests without a search warrant.
DUI defense lawyer Overby said although “virtually every toxicologist, every defense attorney and every prosecutor all agree that those urine samples, as far as evidence is concerned, are not the best form of evidence to be presented,” he has concerns about expanding who can take blood samples from drivers and where those draws can be done.
Overby, a partner in the Cole law firm, which has offices in Anderson and Greenville, noted he would be opposed to any draws done at roadside traffic stops and generally wouldn’t want them done later at jails, either.
“Nobody likes needles overall,” he said. “I find that the sheer roadside nature – what they proposed – would be coercive. I think it’s coercive in a jail setting as well.”
Seventh Circuit Solicitor Barnette said he supported a Senate proposal that would have allowed an officer who had “reasonable suspicion” that a driver was under the influence of drugs to immediately ask for a blood draw at a medical facility instead of having to typically wait until after a breath test, which measures alcohol concentrations, though not the presence of drugs.
He also said he would ban hospitals from denying requests to do blood draws, which they legally can do now, adding, though, that it hasn’t been an issue in his circuit, which covers Spartanburg and Cherokee counties.
“You have to take them usually to the next county or another hospital – and look at how much time you’re losing,” Barnette said, noting that blood samples in misdemeanor cases must be taken within three hours of arrest. “It’s been a nightmare for troopers and for law enforcement to get somebody just to draw the blood sample.”
“The slow walking can seem like a deliberate delay,” added Megan Jameson, the S.C. Commission on Prosecution Coordination’s legislative counsel. “When you finally get the sample, it has significantly less scientific value.”
Overby said he supports changing state law to specifically allow summary court judges – magistrates and municipal judges – to issue electronic search warrants, referred to as “e-warrants,” to obtain blood draws, as well as conduct recorded, virtual meetings with officers seeking blood draws. He contended those changes would allow blood tests to be taken more quickly at hospitals or medical facilities and make it more likely to get accurate results.
Other big differences
Stakeholders in the DUI debate also have differing views in a number of other areas.
Overby, for example, said he opposes a legislative proposal that would have required defendants convicted of DUI to obtain a yet-to-be-created $300,000 surety bond to drive, in addition to having special “SR-22” insurance required under existing law. Instead, he said he supports proposals raising the current mandatory minimum liability coverage levels for convicted DUI offenders.
Asked what he would like to see included in a new DUI-reform bill next year, Sen. Hembree said he would ban what prosecutors contend effectively is a requirement that Miranda warnings – the constitutional right to remain silent and have an attorney – be given before any DUI arrest is made, which generally is done at the time of arrest for alleged crimes.
“You don’t have to give Miranda on a murder case,” said Hembree, who, as a former longtime solicitor, tried death penalty and other murder cases. “That’s absurd you would have to do it on a DUI.”
“South Carolina is the only state in the entire country that requires Miranda warnings to be read before an arrest on any charge,” said Catalanotto, the Commission on Prosecution Coordination's executive director. “And then in South Carolina, the only charges that do require a pre-arrest Miranda are DUI and DUAC.”
State law generally requires police to video record Miranda warnings, field sobriety tests, and breath tests given typically at jails – with specific requirements during the recording process – though a recording violation under state law generally doesn’t result in the dismissal of the charge or suppression of evidence if the officer submits an affidavit that there was an equipment malfunction or if the suspect faced a medical emergency.
Barnette, the 7th Circuit solicitor, questioned video recording requirements, though he noted he believes that officers should record drunken driving arrests.
“Why are we requiring videotaping just on DUI cases?” he said. “I have tried death penalty cases without any videotape on certain issues.”
For Burritt, MADD’s regional executive director, allowing drivers charged with first-offense DUI or DUAC into pre-trial intervention (PTI) programs is something that “we can live with,” though he acknowledged the proposal was not something his organization was “pushing for.”
Under state law, PTI programs run by solicitors generally allow nonviolent, first-time offenders to have their charges dropped if they complete certain requirements during the program period – often around a year – such as substance abuse counseling or treatment, or restitution to victims.
Defendants whose charges are dropped can apply to have their criminal records on those cases removed from public viewing, a process known as “expungement” – as The Nerve reported in the first two stories of this series.
DUI and DUAC offenses currently are specifically excluded from PTI eligibility. Burritt told The Nerve that if those crimes became PTI-eligible, drivers charged with first offenses could be required to attend victim impact panels; complete substance abuse counseling or treatment sessions; and have ignition interlock devices installed on their vehicles, which currently is required for various time periods upon conviction of DUI or DUAC charges.
“Since we’re not already convicting people, at least it’s getting people the punishments that will keep them from doing it again,” he said. “On paper, are we like, ‘Yes, that’s one of the best parts of S. 52?’ No, so I have it sort of in my neutral section, but it’s hugely impactful.”
On a historical note, Hudson, SCVAN’s executive director, said she believes lawmakers who are defense attorneys for years have hindered strengthening public safety laws.
“The fact is that defense attorneys have too much influence with magistrates and with people they elect to the bench,” she said, “and they turn around and make the laws.”
“That’s what happened on S. 52,” Hudson added. “Law enforcement got so disgusted with it that the bill died because the bill was worse than what we have.”
Brundrett is the news editor of The Nerve (www.thenerve.org). Contact him at 803-394-8273 or [email protected]. Follow The Nerve on Facebook, Instagram and X (formerly Twitter) @thenervesc.
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