The Scarlet Letters: D-U-I
By Marcelo Torricos II
Author’s Note: Before you dive into this article, I would like to clearly establish that I believe driving under the influence is a serious, reckless and selfish offense. With that being said, I do believe that there are inequalities in the legal system surrounding DUIs—that is the focus of this article.
“Thus the young and pure would be taught to look at her, with the scarlet letter flaming on her breast,—at her, the child of honorable parents,—at her, the mother of a babe, that would hereafter be a woman, —at her, who had once been innocent, —as the figure, the body, the reality of sin.”—Nathaniel Hawthorne, The Scarlet Letter.
Hawthorne was on to something. Although our communities no longer face the societal rigidity of hundreds of years ago, the idea remains: a past mistake can shadow you throughout life and, if it is damning enough, completely eclipse it. It is not the scarlet “A” that is as career crushing and reputation ruining as it once was. Now, those three “scarlet letters” that will always show up on your record, on a background check and can never be removed in South Carolina are D-U-I.
As I write this article, the State of South Carolina has no diversionary program for first-time DUI offenders. A DUI, therefore, may never be expunged from the offender’s record (outside of a pardon from the Governor).
Consider this: A 35 year-old mother of two with a clean record receives a DUI on her way home after one too many glasses of wine at a dinner party. She did not even realize she was over the limit. This charge will now be a major blemish on her record for the rest of her life.
On the other hand, drug dealers, people who commit check fraud and those who commit domestic violence all have options for diversionary programs. The man who tragically beats his wife has the opportunity to wipe his record clean, but the mother of two exemplified above will carry a DUI’s dark mark on her record forever. And there is nothing she can do about it under the current law.
As these other offenses, which are often times more “criminal” in nature than a DUI, may be eligible for expungement, I believe we should allow first time DUI offenders the chance to expunge the offense from their record through a diversionary program.
A DUI charge is dissimilar to other charges, in the sense that it does not discriminate. Anyone, at any age, can receive a DUI. It could be the 20 year-old college student on her way home from a party; it could be the 40 year-old father leaving happy hour after a day at the office; it could be a 65 year-old man driving home after a family dinner.
Other offenses in South Carolina that have diversionary programs are typically more “criminal” in nature and also tend to remain stagnant across certain demographics. Charges in South Carolina, such as possessing drugs or running from the police, have programs like pre-trial intervention, alcohol education and conditional discharge and are not being committed by the 35 year old mother of two exemplified above.
So why is this the case? Why can’t one rid themselves of a DUI conviction? South Carolina has organizations solely dedicated to eradicating drunk driving, and rightly so, since drunk driving killed over 300 people last year in our state. These organizations have put undue pressure on the court system and prosecutors that they cannot perform their jobs properly as a result. Every alleged DUI offender must either go to trial or plead guilty. These organizations, in spite of all the good they do, have severely hindered prosecutorial discretion.
We are in an era where there are no deals. There are no reductions. I have personally handled dozens of cases where the driver’s impairment was highly questionable and the evidence against my client was extremely weak, yet, when I approached the prosecutor’s office about the case, their response was almost always, “take it to trial and prove it”. This attitude creates several problems as trials are expensive and, living in a demographically conservative region, people often receive unfair trials as soon as the words “alcohol” and “driving” are involved in a case—even if evidence would indicate otherwise.
This is why prosecutorial discretion is so important. It is a safeguard that protects us all from unwarranted convictions. DUIs, like other offenses, should be analyzed on the individual, situational basis. Prosecutorial discretion allows a prosecutor to look at a file individually, use discretion and determine if the case can be prosecuted or if it can or should be dismissed. This acts as a safety net, so we are not charging people with convictions they should not be receiving. With so much pressure put on prosecutors to convict DUI offenders, they do not feel that they have the freedom to use their prosecutorial discretion in these cases.
To be clear, I do not believe drunk drivers should receive a “free pass”. Far from it. Driving under the influence is incredibly dangerous and shows a serious lack of judgment on the offender’s part. I do believe that there should be a diversionary program for which first-time offenders may be eligible, depending on the details of their case, to give them an opportunity to get the charge expunged.
I strongly encourage South Carolina legislators to form a diversionary program for first time DUI offenders. I believe part of South Carolina’s diversionary program for DUIs should include a stiff fine, mandatory attendance to Alcoholics Anonymous classes and Mothers Against Drunk Driving (MADD) impact panels, and the completion of community service hours. I have had several conversations with South Carolina Circuit Court Judges and Magistrate Judges who also believe there needs to be a diversionary program for first time DUI offenders, so I am not alone in this thought.
DUIs are serious offenses, and I encourage you to always have a designated driver or access to a driving service when you are drinking alcohol. With the advent of Uber and Lyft, there is no excuse for driving drunk. However, people will always make mistakes and DUIs are often one-time mistakes that have lifelong repercussions. Nobody is perfect. Mistakes happen. It is time to give each other a shot at a second chance.