Jun 26, 2012 | DUI & DWI, Uncategorized
South Carolina, for whatever reason, has two statutes that the state can use to charge you for essentially the same offense: driving drunk. The first and more traditional is DUI, driving under the influence. The second is somewhat newfangled and is symptomatic of the trend of trying to convict as many people as possible, with as little process as possible, of driving drunk: DUAC, driving with an unlawful alcohol concentration.
DUI requires as an element that the driver actually have been impaired, that question goes to the jury. DUI does require some evidence that the defendant have been under the influence of alcohol or other drugs, but there needn’t be a blood alcohol concentration test of any kind. Like impairment, the question of whether the impairment was caused by drugs or alcohol goes to the jury.
DUAC merely requires that the blood alcohol concentration of the defendant have been 0.08% or above and that he or she have been operating a motor vehicle. As such, DUAC requires that there have been some sort of BAC test like a breathalyzer test.
Serious DUI/DUAC Attorneys
If you have been charged with any drunk driving offense, contact the attorneys at Reeves, Aiken & Hightower. Browse our website, and compare our credentials with those of attorneys at any other firm. Then, call us at 877-374-5999 or contact us at this link for a private consultation.
Jun 21, 2012 | DUI & DWI, Uncategorized
For anyone who has been charged with driving under the influence, we know that charge alone is seriou. But, a felony DUI charge is even more so. Not only has the person charged allegedly caused serious harm or the death of another, but they also face much steeper penalties, including possible mandatory prison time.
What is Felony DUI?
A felony DUI charge in South Carolina requires that the person charged have:
- Operated a vehicle under the influence of drugs or alcohol or both, and
- Did something else against the law, whether traffic law or duties imposed by the court, for example, failed to maintain lane or acted negligently, and
- Proximately causes great bodily injury or death to a person other than himself, including passengers, pedestrians, and other motorists
The first element sounds like DUI, but unlike DUI, the statute does not mention that the drugs or alcohol must impair the ability of the driver to drive safely.
The second element allows individuals who are under the influence, but do nothing wrong, to escape a serious felony DUI charge. For example, a driver who was under the influence, who otherwise was following the law, and killed a driver who was turned left in front of him, probably would be able to escape a Felony DUI charge. Why? They breached no legal duty. The other driver was entirely at fault.
The third element contains two problems: Proximate causation and “great bodily injury.” What in the world do either of those phrases mean?
Proximate causation basically means legal causation, not factual causation, but causation that will be recognized by law for a certain purpose. Here, you can imagine that
- if one driver breached a legal duty like crossing the white line on a two lane road, and
- that action spooked a driver in the oncoming lane, and
- that driver hit a tree and died,
the driver crossing the white line could have actually caused the death, but even if that person was under the influence, we don’t want to charge them with felony DUI. However, if someone dies of complications within 3 years of a “great bodily injury” as defined below, the death may meet proximate causation.
Great bodily injury for the purpose of felony DUI is an injury that “creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” SC Code § 56-5-2945.
Penalties
The penalties for conviction of a felony DUI depend on whether there was a great bodily injury or a death.
For causing great bodily injury:
- 30 days to 15 years mandatory imprisonment, in state or federal prison, not local jail,
- $5,000 to $10,100 mandatory fine,
- driver’s license is suspended for the term of imprisonment plus three years.
For causing death:
- 1 year to 25 years mandatory imprisonment, in state or federal prison, not local jail,
- $10,100 to $25,100 mandatory fine, and
- driver’s license is suspended for the term of imprisonment plus five years.
As you can see judges have very little latitude in felony DUI for mercy.
Another small caveat: the local prosecutor can choose to charge someone who can otherwise be charged with felony DUI with involuntary manslaughter or reckless homicide.
Serious Attorneys for a Serious Charge
If you have been charged with felony DUI, contact the attorneys at Reeves, Aiken & Hightower. Browse our website, and compare our credentials with those of attorneys at any other firm. Then, call us at 877-374-5999 or contact us at this link for a private consultation.
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Jun 18, 2012 | DUI & DWI, Uncategorized
As DUI law has developed in South Carolina and as public opinion has increasingly turned against individuals who find themselves with DUI charges, the penalties for DUI convictions and consequently DUI pleas have gotten stricter. The state legislature has taken increasing amounts of discretion away from judges to sentence based on the merits in each case and the character and individual traits of each defendant.
Today, there is mandatory minimum sentencing for every DUI based on past DUIs and the blood alcohol content at the time of arrest.
| BAC: |
Less than 0.10% |
0.10%-0.15% |
0.16% or more |
| First Offense |
- 6 month license suspension
- $400 Fine
- 48 hours jail or public service up to 30 days jail
|
- 6 month license suspension
- $500 Fine
- 72 hours jail or public service up to 30 days jail
|
- 6 month license suspension
- $1,000 Fine
- Minimum 30 days jail up to 90 days jail
|
| Second Offense |
- 1 year License suspension
- $2,100-$5,100 Fine
- Jail – 5 days to 1 year
|
- 1 year license suspension
- $2,500-$5,500 Fine
- Jail – 30 days to 2 years
|
- 1 year license suspension
- $3,500-$6,500 Fine
- Jail – 90 days to 3 years
|
| Third Offense |
- 2 year license suspension
- $3,800-$6,300 Fine
- Jail – 60 days to 3 years
|
- 2 year license suspension
- $5,000-$7,500 Fine
- Jail – 90 days to 4 years
|
- 2 year license suspension
- $7,500-$10,000 Fine
- Jail – 6 months to 5 years
|
| Fourth (and later) Offense |
- Permanent license revocation
- Jail – 1 to 5 years
|
- Permanent license revocation
- Jail – 2 to 6 years
|
- Permanent license revocation
- Jail – 3 to 7 years
|
For first time DUI’s, the court may offer public service instead of jail time, but the court cannot make you accept public service instead of jail. Also, for first time DUI’s, the legislature has directed the courts to allow those convicted of DUI to serve their public service or jail time in such a way as to avoid interfering with employment, such as on the weekends.
In second and subsequent DUI offenses, the court will order that an ignition interlock device be installed in the defendant’s car at the defendant’s expense, upon conviction.
In addition to these minimum sentences, prosecutors are not allowed to bargain DUIs down to a wet reckless charge, which is allowed in some states. These sort of charges involve acknowledging that alcohol was involved, but in a charge less serious than DUI but more serious than reckless driving. Plea bargaining is still possible, but on different terms than in other states.
Keep in mind also that the DMV is required to collect and publish the names of all those whose licenses have been revoked due to DUI convictions.
The DUI attorneys of Reeves Aiken & Hightower LLP stand ready to fight for you if you have been charged with DUI in SC. We encourage you to visit our website at www.rjrlaw.com and compare our attorneys’ credentials to any other firm. You can then call us toll-free at 877-374-5999 or contact us by email for a private, confidential consultation to review your particular case.
Jun 17, 2012 | DUI & DWI, Uncategorized
South Carolina is now trying to increase penalties for those arrested and charged with DUI in the state. A new bill which is currently proposed in SC is aiming to pose higher penalties for those arrested for DUI. Currently in SC drivers who are arrested for DUI and refuse to take the breathalyzer test will lose their driver’s license for 90 days. If the new bill passes if a driver refuses to take the test he will have his license suspended for 1 year. However if a driver does take the breathalyzer test the length of the driver’s license suspension will vary depending on his BAC at the time the breathalyzer is administered. Other parts of the bill that are proposed will increase jail time for DUI depending on the driver’s BAC. In SC right now penalties for DUI may range from 48 hours to 5 years in prison. Under the new bill if a driver blows between .08 and .010 he will spend 48 hours in jail while those who blow a 0.16 or above on a 4th offense or more will face 7 years in prison. While the law should punish those who are posing a hazard while driving, potential issues with the proposed law may unfairly enforce stricter punishment on those who may not deserve a harsher penalty such as losing the ability to driver for 1 year.
The DUI attorneys of Reeves Aiken & Hightower LLP stand ready to fight for you if you have been charged with DUI in SC. We encourage you to visit our website at www.rjrlaw.com and compare our attorneys’ credentials to any other firm. You can then call us toll-free at 877-374-5999 for a private, confidential consultation to review your particular case.
South Carolina DUI Bill Aims to Step Up the Fight Against Drunk Driving in the State
A proposed South Carolina DUI bill would mandate one-year driver’s license suspensions following breath test refusals, align DUI penalties with rising BAC levels on a tiered system of severity, and dramatically change the DUI laws in the state.
A subcommittee of the S.C. Impaired Driving Prevention Council unanimously passed a DUI bill on January 22nd which would up the ante for a South Carolina breathalyzer refusal from the current penalty of a 90-day license suspension to a one-year suspension. If the bill passes the full council, it could be introduced to the state legislature by early February, according to an online story of The State.
Specifically, the proposed drunken driving bill would attempt to stiffen South Carolina DUI laws that many critics feel are some of the weakest in the country and have contributed to the state having top-ten death rates in alcohol-related crashes in the past.
Under the new bill:
- DUI penalties would increase with blood alcohol levels and the number of offenses. For example, a first time offender who registers a BAC of 0.08% (the legal limit in all 50 states) but less than 0.10% would spend 48 hours in jail. Fourth and subsequent offenses of driving with a level of at least 0.16% would face seven years in prison. Current South Carolina DUI penalties range from 48 hours in jail to five years in prison, regardless of BAC levels.
- Failing a breathalyzer test would mean different lengths of driver’s license suspensions based on BAC. The proposed bill would automatically suspend a driver’s license for two months for any suspect who blows a 0.10% or higher. Current South Carolina DUI law mandates an automatic 30-day suspension for suspects who register BAC levels of 0.15%. Under the new DUI bill, the suspension would be six months for BAC levels at 0.20% or higher.
- DUI language would be changed. Current South Carolina DUI law makes it illegal to be “driving under the influence”. The new bill would change the language to “operating under the influence,” which some opponents believe would allow a person who is sitting in a parked but running car to be stopped on suspicion of DUI.
- South Carolina police would not be required to warn DUI suspects about self-incrimination before administering breath and field sobriety tests.
Like most pieces of legislation, the 27-page South Carolina DUI bill has its proponents and opponents. Jeff Moore, Chairman of the council subcommittee that drafted the bill, said in The State story that he believes the legislation can make a difference if passed. One South Carolina DUI lawyer complained in the story that the bill would be unfair to certain types of suspects.
Regardless of these conflicting opinions, the new South Carolina DUI bill reflects an increased effort by the state to crackdown on drunk driving. South Carolina Governor Mark Sanford recently called for tougher DUI laws in his State Address.
This proposed bill is a good example of how proposed changes to DUI laws in not only South Carolina but many other states are commonly seen at this time each year, and how drunk driving is an issue requiring constant attention, monitoring and progress.
Copyright © 2012 TotalDUI, LLC. (as licensee). All rights reserved
Jun 15, 2012 | DUI & DWI, Uncategorized
Before we get started, let’s all remind ourselves that nobody should drink and drive. For whatever reason though, myths about how to fool the breathalyzer and breath tests generally are popular stuff. But the thing is, almost all of these myths are just that: myths, stories people made up to have something to talk about.
The only way to be sure to pass a breathalyzer test is to not drink alcohol before taking one. Some of the supposed methods of fooling the test though are
- eating breath mints
- sucking on a penny
- eating garlic
- eating onions
- eating mustard (the yellow stuff, not greens)
- swallowing chewing tobacco
- having salted peanuts in your mouth, and
- chewing activated charcoal.
What all of these myths ignore is how breathalyzers actually work and how the test is actually administered. They just involve guesswork about how you would think a breathalyzer would work. You might think:”I can smell the alcohol on someone’s breath, and if someone is chewing mints, I cannot smell as much alcohol. Thus, chewing mints must change the breathalyzer reading.” That simply isn’t the case though. Breathalyzers, both the main unit at the police statioin and the portable handheld kind used by arresting officers, work by detecting the presence of alcohol in the breath. They do this through chemical reactions that result in a color change in a liquid (the ones at the station) or an increase in electrical charge (the ones in the field).
Whether you have extraneous chemicals in your breath is irrelevant to the mechanism of the test.
A couple variables that individuals can affect do change the results of the tests though. Since all breath tests rely on the amount of alcohol in the breath, and your lungs contain a good deal of breath, the approimate amount of alcohol contained in that air can be changed briefly by you. If you hold your breath for a long time before blowing, your Blood Alcohol Content (BAC) reading will be slighyly higher (more time for alcohol to get into that breath). If you hyperventilate before blowing, the BAC reading will be slightly lower. Of course, you should just take this as a fun fact because the effect of hyperventilating before a breath test is relatively small, driving under the influence is dangerous, and the consequences of a DUI conviction are severe.
The DUI attorneys of Reeves Aiken & Hightower LLP are experts in DUI and are ready to fight for you. We encourage you to visit our website at www.rjrlaw.com and compare our attorneys’ credentials to any other firm. You can then call us toll-free at 877-374-5999 for a private, confidential consultation to review your particular case.
Jun 6, 2012 | DUI & DWI, Uncategorized
One of the most frequently asked questions in DUI/DUAC law is whether or not to give a breath sample. All to often people think that if they just blow into the breath machine, have a BAC of less than .08, the Officer will just let them go home. However, the vast majority of the time, this is usually the exception rather than the rule. More often than not, those people who think they are ok to drive or under .08 are usually astounded by the results printed out by the datamaster. The simple fact of the matter is you should not blow unless you haven’t been drinking at all. Depending on your metabolism and body type, even one drink could be one to many to put you over the limit. The truth is that your probably going to spend the night in jail regardless of your Breath Alcohol Concentration.
But, a DUI case goes far beyond the night you are arrested and asked to give a breath sample. A DUI case is a marathon rather than a sprint. You have to look beyond that night and at the overall big picture that once you’re released for jail the next morning, you’re still going to have to go to court. You’re going to spend the night in jail… but a high BAC could send you back when your case goes to trial.
So then if the answer is to never blow unless you haven’t been drinking, clearly the answer must be that you should refuse to give a sample. It’s not as simple as simply refusing the test… It’s all in how you do it.
When you are taken into the datamaster room for a breath sample, everything you do and say is being video recorded. This means that everything you do and say will be seen by a jury at trial. So when you’re in the datamaster room you should play to the camera and in essence to the jury. A jury is made up of people just like you and odds are they don’t know anymore about a DUI then you. So, you can’t just simply say “I refuse”. That makes it look like you have something to hide. A jury will be wondering why you refused the test if you weren’t under the influence. Instead, you should ask the Officer questions such as: How does the machine work?, How does it actually measure my BAC?, when is the last time the machine was calibrated?, when is the last time the machine was inspected?, How often is this machine serviced?, ect. Then you should finally end with “I’m a little worried about giving you a sample because I’m not really sure how it works… but I’ll give you a sample if you can promise me that this machine is always 100% accurate”. Of course, the Officer can’t do that because nothing is 100% accurate. A jury will relate to your questions and wondering the same things themselves. By asking questions such as these, the jury will put themselves in your shoes and ask themselves if they would give a sample in the same situation.
In the end, you should refuse to give a sample… but make it look like you’re not refusing. The DUI attorneys at Reeves Aiken & Hightower LLP stand ready to help you if you have been arrested and charged for DUI, BUI or DUAC. Before hiring an attorney, you should carefully check out their credentials and actual experience. For more information about our lawyers, please visit our website at www.rjrlaw.com. Or to schedule a confidential consultation about your particular case, please call us directly at 877-374-5999.
