1) If you only have one drink, are you guilty of drunk driving?
In order to be convicted of drunk driving (DUI) the prosecution has to prove (1) that you were actually driving under the influence of alcohol and/or drugs and 2) that you had while driving a blood alcohol content above .08 % which is the legal limit in the State of South Carolina.
A jury in the State of South Carolina must be able to say that your blood alcohol content (BAC) met or exceeded the legal limit of .08% or higher. If the prosecution can convince a jury that you were beyond the legal limit while driving then you can be convicted of DUI. The police officer that stopped you usually takes the stand to say that your behavior was consistent with the behavior of a person under the influence of alcohol, that you were stopped due to your behavior and that you presented sufficient proof to the officer that you were impaired. An example that is often cited is the field sobriety test. If you failed the test by falling down, not following (tracking) a pen with your eyes when asked or by failing to walk a straight line, the officer will present this information to the jury as evidence of your impairment at the time.
The standard of proof in a DUI case is the same as all criminal cases, that is, the prosecution must prove to the jury and the jury must agree with the prosecution that you were guilty of DUI beyond a reasonable doubt. If they are not sure that you were impaired or just think that you might have been impaired but can’t say so in their heart, then they must acquit you (let you go) by finding you not guilty.
What is reasonable doubt? Reasonable doubt is doubt which causes you to hesitate and say that you are not sure. The jury cannot infer your guilt, they must be able to stake everything on the fact that you were guilty, no matter what. So can you be guilty of a DUI after only one drink. Yes, if your blood alcohol was above .08%, you were driving impaired and the prosecution can prove it beyond a reasonable doubt.
2) Can a person under 21 be charged with a DUI?
Yes. If a person was driving while intoxicated, spotted and stopped by the police and failed one or more sobriety tests, the officer can charge that person with a DUI. The age is not important in the prosecution of the crime, only the circumstances surrounding the DUI matter in order to charge a person with the crime of DUI.
3) What are the minimum/ maximum penalties for a DUI/DUS/DWI?
Penalties for a first offense:
DUI-1st offense (BAC between .08% and .09%)
Jail time of between 48 hours and 30 days, with the option of community service at the discretion of the judge. Fines of up to $400 plus court costs and fee assessments. The loss of your drivers license for a minimum 6 months and the requirement of special SR-22 insurance.
DUI-1st offense (BAC between .10% and .15%)
Jail time of between 72 hours and 30 days, with the option of community service at the discretion of the judge. Fines of up to $500 plus court costs and fee assessments. The loss of your drivers license for a minimum of 6 months and the requirement of special SR-22 insurance.
DUI-1st offense (BAC of .16% or higher)
Jail time of between 30 days and 90 days, with the option of community service at the discretion of the judge. Fines of up to $1,000 plus court costs and fee assessments. The loss of your drivers license for a minimum of 6 months and the requirement of SR-22 insurance. Additionally, you are required to attend and complete the ADSAP (Alcohol and Drug Safety Action Program) which carries additional fees and assessments.
Penalties for a second offense:
DUI-2nd offense (BAC between .08% and .09%)
Jail time of between 5 days and 1 year. Fines of between $2,100 and $5,100 plus court costs and fee assessments. The immediate loss of your driving privileges for up to 60 days. The loss of your drivers license for a minimum of 1 year and the requirement of special SR-22 insurance.
DUI-2nd offense (BAC between .10% and .15%)
Jail time of between 30 days and 2 years. Fines of between $2,500 and $5,500 plus court costs and fee assessments. The loss of your drivers’ license for a minimum of 1 year and the requirement of special SR-22 insurance. Additionally, you are required to attend and complete the ADSAP (Alcohol and Drug Safety Action Program) which carries additional fees and assessments.
DUI-2nd offense (BAC of .16% or higher)
Jail time of between 90 days and 3 years. Fines of up to $3,500 and $6,500 plus court costs and fee assessments. The loss of your drivers’ license for a minimum of 6 months and the requirement of SR-22 insurance. Additionally, you are required to attend and complete the ADSAP (Alcohol and Drug Safety Action Program) which carries additional fees and assessments.
Penalties for a third offense:
DUI-3rd offense (BAC between .08% and .09%)
Jail time of between 60 days and 3 years. Fines of between $3,800 and $6,300 plus court costs and fee assessments. You will also lose your drivers’ license for 2 years unless your third conviction came within 5 years of your second conviction, in that case you will lose your license for four years and have the requirement of special SR-22 insurance.
DUI-3rd offense (BAC between .10% and .15%)
Jail time of between 90 days and 4 years. Fines of between $5,000 and $7,500 plus court costs and fee assessments. You will also lose your license for 2 years unless your third conviction came within 5 years of your second conviction, in that case you will lose your license for four years and have the requirement of special SR-22 insurance.
DUI-3rd offense (BAC of .16% or higher)
Jail time of between 6 months and 5 years. Fines of up to $7,500 and $10,000 plus court costs and fee assessments. Additionally, you are required to attend and complete the ADSAP (Alcohol and Drug Safety Action Program) which carries additional fees and assessments. You will also lose your license for 2 years unless your third conviction came within 5 years of your second conviction, in that case you will lose your license for four years and have the requirement of special SR-22 insurance.
Penalties for 4th offense and above:
DUI-4th offense (BAC between .08% and .09%)
Jail time of between 1 year and 5 years. A charge of Felony Drunk Driving. You will permanently lose your license in the State of South Carolina. High fines and fees set by the trial judge.
DUI-4th offense (BAC between .10% and .15%)
Jail time of between 2 years and 6 years. A charge of Felony Drunk Driving. Fines of between $5,100 and $10,100 plus court costs and fee assessments. You will permanently lose your license in the State of South Carolina.
DUI-4th offense (BAC of .16% or higher)
Jail time of between 3 years and 7 years. A charge of Felony Drunk Driving. You will permanently lose your license in the State of South Carolina. High fines and fees set by the trial judge. Additionally, you are required to attend and complete the ADSAP (Alcohol and Drug Safety Action Program) which carries additional fees and assessments.
Ignition Interlock System:
In addition to the DUI penalties as stated above, the court can order that ignition interlock devices be placed on vehicles driven by the convicted driver for a certain period of time. The ignition interlock device will measure BAC levels and prevents the car from starting if the driver tests positive for blood alcohol content.
Felony DUI with Injury:
If you injure or kill anyone subject to a DUI, you can be placed in jail for a period of time at the discretion of the trial judge, subject to applicable law, depending upon the nature and the severity of the injury to the other person. In some cases this can be a very substantial period of time of prolonged incarceration.
A DUI conviction remains on your permanent criminal record forever and can be used against you to deny you opportunities for jobs, schools and advancement in other areas of life. So it is important to call an attorney to get help today before its too late.
4) If my license is suspended, can my driving privileges be reinstated?
Yes. Depending upon the charge. When your license is suspended there is usually a period of time for the suspension period. After this suspension period, you can apply for your license to be reinstated by going to your local DMV (Department of Motor Vehicles) Office in your city and paying a reinstatement fee to get your license. You will have to provide proof of insurance and prove that all of your standard fines and fees to operate a vehicle in the State of South Carolina have been satisfied.
5) Can I refuse a breathalyzer test?
Yes. Every person who is pulled over for a DUI can refuse to take the BAC (Blood Alcohol Content) test. If you refuse to take the test however, your license to drive will be automatically suspended for a period of time based solely upon your refusal. You can request an administrative hearing in order to request to have a license to drive until your court date. This administrative hearing will cost an additional $150 in fees payable to the Administrative Hearing Office and is usually conducted by your attorney on your behalf with both the client and the attorney present for the hearing.
6) How does a DUI affect my insurance?
A DUI affects your insurance in exactly the same way every time, it makes it go up. The rate that you pay insurance is directly related to how many accidents and/or traffic violations that you have so the more violations, the more expensive the insurance. It cannot affect your insurance until you are convicted though, so it is important to get an attorney who can minimize or eliminate your charges. That is where your attorney’s expertise comes in. In the vast majority of cases, hiring an attorney can ultimately save you time and money.
7) What is the law on Expungement of a DUI/ DUS/ DWI?
In the State of South Carolina, the only way to have a DUI/ DUS/ DWI expunged from your record is to be found not guilty of the charge. Essentially, in order to have a DUI/DUS/ DWI expunged from your record you must, in most cases, be found innocent of the charge of DUI/ DUS /DWI. If you are found not guilty of one of these crimes then expungement can be done. It is very technical but here is the law:
South Carolina Code of Laws Section 17-1-40 (A) says and I quote:
“Destruction of records where charges dismissed; fee.
(A) A person who after being charged with a criminal offense and the charge is discharged, proceedings against the person are dismissed, or the person is found to be innocent of the charge, the arrest and booking record, files, mug shots, and fingerprints of the person must be destroyed and no evidence of the record pertaining to the charge may be retained by any municipal, county, or state law enforcement agency.
Expungements may be obtained through the Pre-Trial Intervention Program (PTI) which is available only to first time offenders of minor charges or by “conditional discharge” also available to first time offenders of minor charges. A conditional discharge simply says that you agree not to get into any more trouble or have any more charges for a period of time. If you are not rearrested in that time period, your charges are dismissed. Unfortunately, expungments are not given in DUI/ DUS and DWI cases. So these cases cannot be expunged other than by being dismissed.
8) What is the South Carolina Drivers License Point System?
In the State of South Carolina, everyone starts out with 12 points on their license the day they receive it from the DMV (Department of Motor Vehicles). These points are taken away slowly when we get an infraction or are charged with a traffic violation. For example, a conviction for the minor traffic violation of speeding (10 miles and under the speed limit) carries a fine of $50 plus court costs and fine assessments and 2 points off of your license. Now, that person would have 10 points left on their license. In most instances, the first 2 points taken off of your license will not increase your insurance, but anything after the first two points will raise your car insurance rates. A point stays on your license for one year, then it is dropped and you go back to your original points. The more points you have against your license, the more time it takes to clear them. Here is a sampling of infractions and the points they generate against your license:
Reckless driving – 6
Passing stopped school bus – 6
Hit-and-run, property damages only – 6
25 m.p.h. or above the posted limits – 6
Disobedience of any official traffic control device – 4
Disobedience to officer directing traffic – 4
Failing to yield right of way – 4
More than 10 m.p.h. but less than 25 m.p.h. above the posted limits – 4
Passing unlawfully – 4
Turning unlawfully – 4
Driving through or within safety zone – 4
Failing to give signal or giving improper signal for stopping, turning, or suddenly decreased speed – 4
Driving on wrong side of road – 4
Following too closely – 4
Operating with improper brakes – 4
No more than 10 m.p.h. above the posted limits – 2
Shifting lanes without safety precaution – 2
Improper dangerous parking – 2
Failing to dim lights – 2
Operating with improper lights – 2
Operating a vehicle in unsafe condition – 2
Driving in improper lane – 2
Improper backing – 2
There are other infractions which carry their own set of points against your license. Any infraction has the potential to increase your auto insurance. We can usually help you with any major or minor traffic violation and help get you back on the road.
9) How does the prosecutor decide which cases people to prosecute?
The prosecutor can prosecute any case which he or she feels is winnable in court. Typically, it is left to the individual prosecutor to determine if a case is taken to court “as charged” or a recommendation is given. Usually, the prosecutor and the defense attorney have a negotiation conference to discuss a charge and how it can be disposed of. After that conference, it is up to the defense attorney to proceed to a jury trial on behalf of his client or suggest a plea bargain to his client if it is in the client’s best interest. The decision of what to take, a plea or a trial, is the client’s choice. It is up to the defense attorney to represent the client and advise them of what is best in their professional opinion but to adhere to the client’s wishes after the client makes their choice of a trial or a plea.
10) What is the difference between parole and probation?
Parole is one way of completing a criminal sentence of incarceration while probation is a criminal sentence that gives the defendant the chance to be monitored and trusted not to commit a crime in exchange for the opportunity not to go to jail. If a person violates their parole or probation, they can be incarcerated or re-incarcerated for up to the maximum amount of their sentence. For example, if a person is sentenced to 5 years suspended to 5 years probation, that person does not have to go to jail, but rather is monitored by the office of probation, pardon and parole for the State of South Carolina. If they commit another crime or do not comply with the terms and conditions of probation, including paying their supervision fees and reporting to their probation or parole officer, they can be violated by that officer and resentenced by the trial judge to finish or serve all or part of their time in prison depending on when and what crime was committed. If a person commits another serious crime, they can be given time on that charge, plus violated for years for the past charge and have to spend additional time in jail. The parole board however considers cases for people who are already in jail. Usually, an incarcerated inmate would have a lawyer apply for them to have a hearing before the parole board. At the hearing, the members of the parole board would consider the inmate’s time and offenses they were charged with and how serious they were. They would also hear from the alleged victims of their crimes and consider their feeling on early release. The board would also hear from the inmate and consider factors such as prison overcrowding and rehabilitation of the inmate. If parole is granted, the inmate is released and placed on parole and essentially monitored until the end of their sentence. In both circumstances, parole and probation can be revoked if the defendant commits another crime or violates the terms and conditions of parole or probation. If revoked, the person must serve their time in jail.
Most courts have rules that prohibit disclosure of grand jury proceedings. The rules typically apply to the government attorneys, the grand jury members, and the court personnel. Violators of the rules can be held in contempt of court if a case against them is proven. However, proving that the leaked information came out of the grand jury proceeding and identifying exactly who made the prohibited disclosure is difficult in most cases.
Another challenge to keeping the proceedings secret arises because the prohibition against disclosure often does not apply to a person subpoenaed to appear before a grand jury. Witnesses are free to discuss their testimony with the media or with anyone else, unless the judge expressly orders them not to.
Persons who are the subject of a grand jury proceeding are not entitled to any notice regarding the scope of the investigation or the nature of the incidents under consideration. They are generally not allowed to have an attorney present with them in the grand jury room, but may be permitted to leave from time to time to consult with an attorney outside the grand jury room.
Probation is a criminal sentence; parole is one way of completing a criminal sentence of incarceration. In most jurisdictions, first-time offenders are considered for probation, particularly if their offense was nonviolent. A person placed on probation is typically given a jail or prison sentence that is suspended as long as the person abides by the terms and conditions of probation. Common terms require the person to contact a probation officer once a week and to work, go to school, or look for work. Other terms can include required attendance at alcohol treatment or narcotic-abuse programs and educational classes on such subjects as anger management or good driving. The length of probation and its terms are enumerated at the sentencing and once the person has completed the terms of probation, he or she is free of court supervision.
Typically, an offender has been sentenced to an indeterminate or range of years in prison. After the offender has served the minimum amount of time authorized, the parole board decides if the offender is ready to be released from incarceration to finish out the sentence on parole. Parole boards consider the nature and seriousness of the crime, the views of the victim, the progress the offender made in prison, how crowded the prison is, and whether the offender has a someplace to go in the community. If parole is granted, the offender will have to abide by terms and conditions similar to those for probation for a specified period of time. If he or she completes the parole period, the criminal sentence is discharged.
Both probation and parole can be revoked if the offender commits another crime or seriously violates one of the conditions of release. The revocation proceeding requires written notice to the offender, an opportunity to explain and call witnesses, an impartial decision-maker, and a written decision stating the reasons for revocation. If parole is revoked, the parolee goes back to prison and serves the remainder of his or her sentence in jail or prison.