SPARTANBURG, S.C. (WSPA) – Thousands of Upstate drivers will be charged with DUI in 2022. They’ll be arrested and booked, but most will never be convicted, according to a study by Mother’s Against Drunk Driving. 

Of those who are convicted, 7NEWS found most will face little to no substantial penalty. For two months, 7NEWS analyzed thousands of DUI arrest reports and traced those cases through the judicial system.

The findings show just how easy it really is to get away with a first offense DUI.

First offense DUI has had tragic consequences in the Upstate.

Last November, on a Monday night, 7-year-old Aaliyah King was killed by a suspected drunk driver on White Horse Road in Greenville County.

Just four days earlier, 6-year-old Cameron Durham and his great-grandmother were killed on Highway 123 in Pickens County. The other driver was charged with felony DUI.

Ethan Rubenzer was killed on the way to school one Friday, a week before his 12th birthday. His mom, Patty, was driving when she was hit by an intoxicated driver.

“We were in the car, and the last conversation we had was he asked me if we could pack that night instead of the next day because we were going to wilderness for his birthday. We were celebrating,” she said.   

Ethan died the moment a man named Michael Kelley slammed into his mom’s car. Kelley was driving on drugs. This was his first DUI.

“He had just gotten his license a couple of years before. [He had] never been pulled over,” Patty Rubenzer said.

First offense DUI is a remarkably common crime. There’s no way to know how many Upstate drivers attempt it, but local police arrest thousands each year.

In 2019 and 2020, Troop 3 of the Highway Patrol, that’s most of the Upstate, made well over 4,000 DUI arrests. Greenville police arrested another 700, and Greenville County deputies made about the same number of arrests.

Police enforce DUI laws aggressively and, when asked, most said they do so just to make roads safer – if only for that night. 

The problem is what happens next. It’s not much.

On a Monday in East Greenville Summary Court, dozens of people will make a first appearance before a judge. They’re there for a wide range of, usually minor, offenses, which include everything from seatbelt violations to speeding. There will also be a handful of DUI cases. Judge Mark Edmonds will greet the assembled defendants, and state troopers will arrive at the front of the room.

“You have the opportunity to meet with the officer and see if you can negotiate something that you like better,” Edmonds said. “When they call your name, if you can just step up to the trooper, that’ll be your opportunity to talk about the case with that trooper, and however they can help you they will do that.”

A 7NEWS analysis of Greenville County cases over two years found this is about as far as most DUI cases ever go. The overwhelming majority of drivers are able to negotiate a deal with very favorable results.

In 2019, 72 DUI arrests made by Greenville County deputies were heard in Judge Edmonds court. About 85% of those drivers paid no fine at all, just court costs, usually about $500. In more than a quarter of cases, the charge was reduced to a lesser crime, like reckless driving.

The same analysis found other Greenville County magistrates weren’t much tougher and were equally likely to accept a lesser charge. 

Solicitor Walt Wilkins’ office prosecutes those DUI cases in which the driver requests a jury trial.

“If you walk in and you haven’t requested a jury trial and you don’t have an attorney, the cop will then negotiate with the actual charged individual for a resolution of the case. If he wants to plead guilty, the cop could actually plead the case down to a reckless driving, which is the next level down,” Wilkins said.

Wilkins said the cases are difficult to prosecute because of a complicated DUI law.

South Carolina requires officers to get nearly all of a traffic stop and arrest on camera. Things like: evidence of poor driving, the field sobriety test, reading of Miranda Rights and the alcohol breath test must be on camera in their entirety for an arrest to hold up in court.

Plus, impaired drivers have gotten smarter about avoiding the most serious penalties. By refusing both the field sobriety test and the breath test, they’re legally locked in at the lowest possible limit of DUI, .08BAC, no matter how impaired the actually were.

While all DUI convictions mean a suspended license, at a limit that low, drivers can simply take a 16 hour alcohol education course (now offered online by the Phoenix Center) and get a temporary license that all but eliminates the penalty.

“We have seen a significant increase in the amount of double refusals, meaning no field sobriety test and no blood alcohol test, so we have zero evidence other than bad driving and the officer’s observations during the case,” Wilkins said. “We feel the public is much savvier on what not to do if you’re pulled over for DUI.”

With DUI law, it’s less about the crime than the result. If someone gets caught before hitting someone or something, that’s lucky.

The first time Michael Kelley got a DUI, he’d killed Ethan Rubenzer. Now he’s serving 40 years.

There are some proposals already in the South Carolina legislature that would make DUI penalties much tougher. One – that would require an ignition interlock device in the cars of any driver who gets a DUI -passed 41-1 in the state senate. But it’s frozen in the house judiciary committee where the panel has refused to schedule it for debate.