Mar 11, 2012 | DUI & DWI, Uncategorized
Below is a great summary of NC DWI laws published by the NC Department of Crime Control and Public Safety. The attorneys of Reeves, Aiken & Hightower, LLP, believe such information is key to learning as much as you can if you have been recently charged with DWI and are seeking basic facts. As you can see, the penalities for a conviction in NC are harsh, even for first time offenders. In fact, NC has some of the strictest DWI laws in the nation. We have highlighted some of the most disconcerting portions of the law. In addition to the stigma of being a convicted “drunk driver,” there can be significant consequences if convicted, including court costs, fines, SR-22 insurance, and possibly even jail time. We encourage you to review as much information as possible and then consult an experienced NC DWI attorney as early as possible. Call us today for a private consultation about your particular case at 704-499-9000. For even more information about our lawyers and their credentials, visit our firm website at www.rjrlaw.com.
Here is the NCDCCPS summary:
Information Concerning Alcohol and Driving While Impaired
Before 1999, North Carolina already had some of the strictest drinking and driving statutes ever adopted in the United States. The Governor’s DWI Initiative has made those regulations even tougher.
In December 1998, the cars of repeat offenders are being seized & sold with the money given to the local school system. In excess of 8,000 vehicles have been seized since then. Starting in the year 2000 any person who is convicted of DWI and has their drivers license reinstated will not be able to drink and drive. Instead of an alcohol concentration of 0.08, these drivers will lose their license if they have limits of 0.04 or higher, depending upon their driving record and if they were charged and convicted after 1 July 2001. An ignition interlock system where the car will not start if the driver has been drinking will be required for some repeat offenders. The repeat offenders are being targeted and for good reason.
In 1998, 469 people died in alcohol-related crashes on North Carolina highways. Another 10,629 were injured. The North Carolina State Highway Patrol arrested nearly 40,000 people for driving while impaired (DWI) in 1998 and more than 43,000 the year before that. The combined DWI arrests for all law enforcement agencies in North Carolina totaled nearly 80,000 for each of those two years, respectively. Though they pale in comparison to the human loss, the financial costs in lawyer fees, court costs, fines, increased insurance rates, and the like to a person convicted of DWI are also great. They range from $6,000 to $8,000 over three years. The bottom line: Never drive after drinking any amount of alcohol! (Emphasis added)
In North Carolina, it is illegal to drive a vehicle while noticeably impaired or with an alcohol concentration of 0.08 or higher. When driving a commercial motor vehicle, the limit is 0.04. The most significant aspects of the state’s new DWI law make punishment more severe for the impaired driver in general and the repeat offender in particular.
For offenders who fall into one of the five levels of misdemeanor DWI, Level I being the most serious and Level V the least, the likelihood of spending time in jail has increased.
Level V
Punishable by a fine up to $200 and a minimum jail sentence of 24 hours and a maximum of 60 days. A judge can suspend the sentence but upon completion that the driver spend 24 hours in jail, perform 24 hours of community service or not operate a vehicle for 30 days.
Level IV
Punishable by a fine up to $500 and a minimum jail sentence of 48 hours and a maximum of 120 days. A judge can suspend the sentence but upon completion that the driver spend 48 hours in jail, perform 48 hours of community service or not operate a vehicle for 60 days.
Level III
Punishable by a fine up to $1,000 and a minimum jail sentence of 72 hours and a maximum of six months. A judge can suspend the sentence only upon completion that the driver spend at least 72 hours in jail, perform 72 hours of community service or not operate a vehicle for 90 days.
Level II
Punishable by a fine up to $2,000 and a minimum jail sentence of seven days and a maximum of one year. A judge CANNOT suspend the minimum sentence.
Level I
Punishable by a fine up to $4,000 and a minimum jail sentence of 30 days and a maximum of two years. A judge CANNOT suspend the minimum sentence.
Level I and II drivers are repeat offenders, persons whose license are revoked, impaired drivers, impaired drivers who are transporting young children and impaired drivers who hurt someone in a crash. Impaired drivers must complete a substance abuse assessment and comply with any recommended treatment as a condition for having their drivers license restored at the end of the revocation period.
Felony DWI
For Habitual DWI offenders, drivers who have had three prior DWI convictions within the past seven years, DWI becomes a more severe felony. But more importantly, the Habitual DWI statute now mandates a minimum active jail term of one year — a sentence that CANNOT be suspended. Offenders must also go through a substance abuse program while in jail or as a condition of parole.
Seizure and Forfeiture of Vehicles
The Governor’s DWI Initiative takes away from repeat DWI offenders the means to drive while impaired; namely, their cars. Under the new provision, a law enforcement officer can seize a driver’s car if the officer charges that person with DWI and that person was driving while his or her license was revoked due to a previous impaired driving offense. The seizure happens at the time of the arrest and NOT after the case has come to trial. (Emphasis added)
If a court convicts the driver of DWI and of committing the offense while driving with a revoked license due to a previous impaired driving offense, the judge will order the vehicle forfeited. The school board can then sell the vehicle and keep the proceeds, sharing the money with any other school systems in the county, or keep the car for its own use. The law does allow vehicle owners to get their cars back if they were not the driver convicted of DWI but only if they satisfy the court that they are an innocent party. (Emphasis added)
Zero Tolerance for Commercial Motor Vehicle Drivers
It’s unlawful for the operator of a commercial motor vehicle to drink and drive. The first offense results in a 10 day disqualification to operate a commercial motor vehicle. The second or subsequent offense revokes the drivers license to operate any vehicle.
Zero tolerance for school bus and school activity bus drivers and child care vehicle drivers drivers.
It is unlawful for school bus and school activity bus drivers and child care vehicle operators (day care van etc.) to drink and drive.
Offenders Under Age 21
Prior to the enactment of the new statutes, North Carolina had already taken a zero-tolerance stance against drivers who were under the legal drinking age who nevertheless drank or used drugs illegally and then got behind the wheel. People under age 21 simply cannot drive with any alcohol or illegally-used drugs in their systems — period. Any amount of alcohol will result in an immediate 30 day pretrial revocation. If an underage drinking driver refuses to take such a test, he or she now need only have the smell of alcohol on the breath to be convicted of driving after drinking. Offenders will have their licenses revoked for one year but can get limited driving privileges instated by a judge if the driver was at least 18 years old at the time of the offense and did not have a prior conviction.
Drug Testing
The Initiative also recognized North Carolina’s inability to prosecute and convict someone for driving while impaired by something other than alcohol. Under the new provision, law officers can now order chemical tests for drugs. It also amends the old law to allow for the revocation of a driver’s license if he or she refuses to take such a test.
Drivers License Revocation
All persons charged with DWI who refuse to take an Intoxilyzer test or has results of 0.08 or more, 0.04 if commercial motor vehicle, or under age 21 and the results are above 0.04, will have their license revoked immediately for 30 days. There is a limited driving privilege available after 10 days. (Emphasis added) Upon conviction of DWI for first offense, the license is revoked for one year. A limited driving privilege may be granted by the judge, but only if the driver did not hurt anyone, did not have a child under sixteen years of age in the car at the time of the drunk driving, and the driver obtains a substance abuse assessment. In order to have a license restored at the end of one year, the driver must go to treatment or school as recommended by the assessment. Upon conviction of a second offense within three years, the revocation is four years.
Refusing a Test
A driver who is stopped by a Trooper or other officer for certain alcohol-related offenses will be requested to submit to a breath test or blood test or both to determine alcohol concentration or the presence of drugs in the blood. The results of the test will be used in court.
If the driver refuses the test, an immediate 30-day revocation is imposed and an additional one-year revocation is imposed after an opportunity for a hearing.
Even if the driver is found not guilty of DWI in court, the one-year revocation is imposed for refusing the test.
A limited driving privilege may be granted but only after a six-month revocation period. (Emphasis added)
Mar 11, 2012 | DUI & DWI, Uncategorized
Here is the first issue that comes up in every new DWI case – “how can I get my license back?” “I have to have my license to get to work.” We understand, and our firm will help you as part of our DWI representation. The article below provides an excellent overview of what is required and what to expect. The DWI trial attorneys of Reeves, Aiken & Hightower, LLP, applaud First Step Services for its easy to read summary and efforts in helping those individuals charged with DWI in NC. Although based in the Raleigh area for now, we hope they will soon expand into our Charlotte market.
For more information about our firm and what we can do to help you, please call us at 704-499-9000 for a private consultation with one of our DWI attorneys. Or, visit our website at www.rjrlaw.com.
Here is the outstanding post:
A North Carolina DWI Assessment is required of everyone who is convicted of Driving While Impaired in the state of North Carolina. You cannot receive a Limited Driving Privilege without a DWI Assessment. DWI assessments and groups can only be conducted by facilities licensed by the state of North Carolina. Each of these licensed facilities must have a North Carolina DWI Provider Code. Getting an assessment and treatment by a substance abuse professional does not necessarily mean that professional has a North Carolina Provider DWI license.
First Step Services, LLC is fully licensed by NC DWI Services and will assist you with your assessment in a professional, confidential and timely manner. First Step will often complete an assessment the day you call to request an appointment.
Why Get Your DWI Assessment Done as Soon as Possible?
In NC, a DWI Assessment is required prior to receiving a Limited Driving Privilege.
Shorten the period of time you can’t drive during your “Civil Revocation.”
Complete the North Carolina Division of Motor Vehicles DWI Assessment and Treatment requirements.
A DWI Assessment is a Mitigating Factor during your trial and can reduce the level of punishment, possibly helping avoid active jail time.
Know in advance where you stand with your DWI Substance Abuse requirements.
If you have your DWI Assessment at First Step, we will bill your insurance for any counseling that may be required, saving you money. First Step is one of the few companies that will bill your health insurance for DWI groups. Your cost at First Step will be much lower than at agencies that don’t accept insurance. Choose First Step Services and save.
Don’t be misled by mailed or other notices that say you must go to any particular agency for a DWI assessment. You can choose ANY licensed NC DWI agency you like.
A DWI Assessment is an alcohol abuse and drug abuse assessment consisting of a clinical interview and a structured DWI assessment questionnaire to determine if a person has a problem with alcohol or drugs. There are a few different assessment types that are used by different NC DWI programs.
Possible outcomes of the DWI assessment are alcohol or drug dependence, alcohol or drug abuse, or no alcohol or drug “handicap.” The DWI assessment and related paperwork take approximately one hour and a half.
Allow at least 1 1/2 hours for the DWI assessment when you schedule your appointment with First Step. You can leave with all the paperwork you need for your attorney, court or the NC Division of Motor Vehicles.
PROGRAM PLACEMENT CRITERIA
(From the NC DHHS DWI Services and Wake County Court Services Homepages)
The DWI Assessment results will assign you to one of the following levels of group or class.
There are five placement levels for DWI substance abuse treatment in North Carolina. There are a minimum number of contact hours and minimum lengths of time a person must be involved. These are now codified into a new section 122C-142.1 of the General Statutes: “Substance abuse services for those convicted of driving while impaired, or driving after drinking by person under 21.”
State Rules require that a Substance Abuse assessment is valid for only 6 months. Treatment or ADETS must be started prior to 6 months from the date of the assessment or a whole new assessment will be required at a full cost of $100.
Level I- DWI Education (Alcohol & Drug Education Traffic School):
First DUI/DWI conviction (Total lifetime)
Arrest BAC of .14 or less
Did not refuse breath test
Has no substance abuse diagnosis as determined by a thorough alcohol and drug use evaluation
Must be a minimum of sixteen contact hours completed in no less than 5 sessions.
Level II-DWI Short-term Treatment:
More than 1 DUI/DWI lifetime
Refused breath test
BAC of .15 or greater
DSM-IV diagnosis of Substance Abuse
Meets Level I ASAM (American Society of Addictions Medicine) program placement criteria.
A minimum of 20 but less than 40 contact hours lasting a minimum of 30 days
Level III-DWI Intermediate Level Treatment:
Meets criteria for DSM-IV Substance Dependence Diagnosis
Meets Level I ASAM program placement criteria
Minimum of 40 but less than 90 contact hours, minimum of 60 days duration
Level IV-Intensive Outpatient Treatment:
DSM-IV diagnosis of Substance Dependence, moderate to severe
Meets Level II ASAM program placement criteria
A minimum of 90 contact hours with a minimum duration of 90 days
According to ASAM, to be considered intensive outpatient, this requires at least 3 sessions and 9 hours per week in treatment. This program may be preceded by a brief inpatient stay for detoxification or stabilization of a medical or psychiatric condition.
Level V-Inpatient/Residential Treatment:
DSM-IV diagnosis of Substance Dependence, severe
Meets Level III or IV program placement criteria
Upon discharge from inpatient treatment, a person has to enroll in an approved continuing care or outpatient program to meet the 90-day time frame. There should not be any significant period of time between inpatient or residential treatment and beginning the 90 days follow up. There should also be no resumption of alcohol or drug use, even in small amounts prior to the 90 day follow up. If there is more than a couple of weeks between residential treatment and beginning the follow up or if there has been any substance use, the DWI client will likely have to begin a new treatment program.
NC law allows up to 15 days credit for inpatient treatment in place of mandatory active sentence. However, an inpatient treatment facility can admit a person to inpatient treatment, ONLY, if that person meets the ASAM criteria for this level of treatment. This is true, even if the person wants to pay for this in full out of his own pocket.
Failure to follow the ASAM criteria can result in a facility’s losing its Medicare or Medicaid accreditation and puts in jeopardy payments by private insurers. Admission to inpatient treatment is based solely on medical or psychiatric necessity, not on a legal requirement or personal preference! (From the DHHS DWI Services)
(ASAM refers to the criteria established by the American Society of Addictive Medicine.)
We must consider the following during the assessment:
• A copy of your driving record from the DMV. The North Carolina Certified Driving Record costs $11.00. It must be signed or stamped by the NC DMV. If you can’t get one, First Step will order one online for you. If we can’t get it that way, we will go to the DMV for you.
• Verification of your Breathalyzer reading. You will probably have this with your ticket. This can also be obtained from your attorney, the Clerk of Court or possibly from the North Carolina DMV.
• Fee payment of $100 for the assessment in cash or money order. If writing a check, you will have to wait 14 days for the check to clear to receive results.
• Come to the assessment alcohol and drug free. If you are “high” or have alcohol on your breath, you will be turned away and will be charged for the time the counselor reserved for your assessment.
A NC DWI Substance Abuse Assessment is required by law for all those convicted of DWI in North Carolina. Getting a DWI assessment prior to court is a mitigating factor at the trial and could lessen the level of punishment you receive.
Education or substance abuse treatment is required of everyone convicted of Driving Wile Impaired. Depending on the level recommended by the assessment, classes or treatment may last from 1 week to 90 days or more.
If you have your DWI Assessment at First Step, we will bill your insurance for any counseling that may be required, saving you money. First Step is one of the few companies that will bill your health insurance for DWI groups. Your cost at First Step will be much lower than at agencies that don’t accept insurance.
Enrolling in the recommended treatment before court is an advantage at the trial.
Many attorneys are now recommending that you enroll at the time of your assessment.
First Step provides DWI and substance abuse assessments in the evening and on Saturday. The state of NC requires that a DWI provider charge $100 for the DWI assessment. First Step charges no administrative fees or other charges of any type except for out of state transfers.
To schedule your appointment in Raleigh, call (919) 833-8899. You can pay by either money order, credit card or cash; Garner (919 329-9400; Durham (919) 419-0229. Insurance may be used to assist with paying for DWI counseling, treatment, or groups.
Before the results of your assessment can be finalized, you will need to bring in written proof of your Breathalyzer reading (BAC) if you were arrested for DWI. You can also obtain a copy from the clerk’s office or have your attorney fax verification to us.
NC DWI law requires a certified copy of your driving record be reviewed at the DWI assessment. If you have a North Carolina driver’s license this can be obtained in room 108 at the DMV located at 1100 New Bern Avenue in Raleigh. First Step staff will pick up your NC driving record and court records if you need that service.
DWI Assessments “508s” are completed online at First Step Services, speeding up the turn around time.
First Step Services Durham
3329 Chapel Hill Blvd, Suite 201
Durham, NC 27707
(919) 419-0229 Fax: (919) 490-3708
Mar 10, 2012 | DUI & DWI, Uncategorized
This recent article highlights some of the controversies surrounding North Carolina’s newest and most sweeping changes to its already strict and harsh DWI laws. Let’s be frank. It is going to be very difficult to get a fair trial now in NC. The “mystery box” now rules. We are going to be convicting defendants based on “voodoo science” that even the police officers and prosecutors themselves cannot explain. The breahalyzer is a machince, not an “instrument.” And like every other machine ever invented, it has flaws and a “margin of error” in its “readings.” And, with high use and improper maintenance, it is going to make mistakes and give false readings. But, just to be clear, brand new, right out of the box, no one can fully demonstrate how it actually does what it is supposed to do. The “magical solution” upon which all results are based is made up of….well, only the manufacturer knows. The exact chemical compound is proprietary.
I agree with Bill Powers. This latest law minimizes the need for judges and juries in NC. The BA reading is all the State needs to convict now. The penalties for a first time, no accident, no injury DWI were harsh already, but now, will be financially devestating to most hard working people. Let’s also remember that the “legal limit” has steadily been arbitrarily reduced, without any significant additional research on human physiology. Originally, the legal limit was 0.15, nearly double the current standard. Then, it was 0.12, and for years and years, it was 0.10. Even now, there are calls to lower the standard again to 0.06. Apparently, no one is supposed to be able to have a glass of wine with dinner or a beer with a friend. The new law in response to a truly tragic DWI death case appears to go too far while attempting to “close loopholes.”
In our DWI practice at Reeves, Aiken & Hightower, LLP, we represent those individuals who have found themselves caught up the maze of a first time DWI arrest. Most have had a calculated number of drinks and felt that they were perfectly fine to drive home safely. They are hard working people who would never endanger their fellow citizens or put their driving privilieges at risk. It goes without saying that no one wants truly drunk drivers on our roads. However, justice requires much more than this new law mandates. Persons not guilty of actually driving while impaired are going to be convicted wrongfully and swept away in the current hysteria. The otherwise law-abiding citizens of our state can only hope that the NC appellate courts will take a more balanced and fair approach.
If you have been charged wrongfully under this new law, call us today for a private consultation at 704-499-9000. And for more information about our law firm and attorneys, please visit our website at www.rjrlaw.com.
Tougher N.C. DWI Law To Make Convictions Easier
CHARLOTTE, N.C. —
People caught drinking and driving in North Carolina will find it tougher to beat the case in court thanks to a new law that went into effect Friday.The law is one of the toughest in the country, and it makes it easier for prosecutors to get convictions in driving while impaired cases.Many people, particularly those in groups like Mothers Against Drinking and Driving, have felt that drunken drivers get caught out on the roads, only to get away in the courts.Robert Yoho supports the new law. He lost his oldest son to a drunken driver two years ago. Since then he’s been telling anyone who’ll listen about the pain caused by drinking and driving, as well as pushing for the new, tougher law that essentially makes a blood alcohol reading of 0.08 a guilty verdict.Yoho considers the change a victory for him.“Everybody knows they make that choice (to drink and drive),” he said.
But the new legislation is already raising questions.
“We’ve gone too far,” said Bill Powers, a defense attorney. “No one likes drunk driving. I don’t like drunk driving. I’m married, I have a child.”
Powers says the law goes too far because it short-circuits a legal system that is supposed to play out in the courtroom.
“Really we don’t need judges anymore. We don’t need juries anymore. They can just go to court and have to find them guilty without listening to the facts,” he said.
Bruce Lillie, an assistant district attorney, says he disagrees.
Lillie supervises the prosecutors who handle driving while impaired cases in Mecklenburg County. He says the new law is one of the toughest in the country, but it is not taking anyone’s rights out of the courtroom.
“What it’s doing is it is closing loopholes – guilty or not guilty,” he said.
Prosecutors say you can still come to court and challenge how a DWI arrest was made and whether the machine was accurate, but defense attorneys believe the legislation will probably end up before a judge on constitutional grounds. For now – it’s the law.
That new law also lists more than a hundred drugs, including prescription drugs and their basic ingredients that are enough to find a driver guilty of DWI. It also gives prosecutors the ability to challenge rulings that go against them on technicalities in DWI cases
Mar 8, 2012 | DUI & DWI, Uncategorized
This SC Supreme Court case addresses the distinction between the criminal and DMV aspects of a DUI arrest. On the criminal side, a failure to follow the implied consent statute will result in exclusion of evidence at trial. On the DMV side, however, the Court declined to reach a similar outcome. The critical difference involves “rights” which must be protected during a criminal proceeding versus the “privilege” of operating a motor vehicle which can be regulated by the Department of Motor Vehicles (DMV). Even if the criminal charges are ultimately defeated, there may still be civil consequences on your ability to drive. Better make sure your DUI attorney understands these crucial elements and how they interact. There is too much at stake to risk an inexperienced criminal lawyer.
At Reeves, Aiken & Hightower LLP, our seasoned attorneys have over 70 years of combined trial experience in both civil and criminal courts. We focus our criminal practice on DUI and DWI cases in both South Carolina and North Carolina and are available by mobile phone in the evenings, on weekends, and even holidays. Our lawyers are licensed in both states and are aggressive criminal trial attorneys. We are not afraid to go to Court and often do. Don’t settle for a lawyer who only wants to reduce your DUI charges to reckless driving. We welcome the opportunity to sit down and personally discuss your case. Compare our attorneys’ credentials to any other firm. Then call us today at 803-548-4444 for a private consultation. Or visit our firm’s website at www.rjrlaw.com.
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Suchart Taylor, Petitioner,
v.
South Carolina Department of Motor Vehicles, Respondent.
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal From Berkeley County
R. Markley Dennis, Jr., Circuit Court Judge
Opinion No. 26637
Heard October 8, 2008 – Filed April 20, 2009
AFFIRMED
C. Bradley Hutto, of Williams & Williams, of Orangeburg, C. Rauch Wise, of Greenwood, Desa Ballard and P. Christopher Smith, Jr., both of West Columbia, and Michael Sean O’Neal, of N. Charleston, and Reese I. Joye, of Joye Law Firm, of N. Charleston, for Petitioner.
General Counsel Frank L. Valenta, Jr., Deputy General Counsel Philip S. Porter, and Assistant General Counsel Linda A. Grice, all of Columbia, for Respondent.
JUSTICE WALLER: We granted a writ of certiorari to review the Court of Appeals’ opinion in Taylor v. SC Dep’t of Motor Vehicles, 368 S.C. 33, 627 S.E.2d 751 (Ct. App. 2006). We affirm.
FACTS
Petitioner, Suchart Taylor, was involved in an automobile collision on I-26 in Berkeley County. A police officer arrived on the scene to find Taylor in his pickup truck being treated by paramedics. The officer smelled alcohol inside the vehicle and, when he attempted to speak with him, Taylor seemed disoriented and had heavy mouth injuries; he was unable to stand or perform field sobriety tests.
Taylor was taken to the emergency room, where he was advised of his Miranda rights and arrested for DUI. The officer determined Taylor’s mouth injuries would prevent him from taking a breath test, so he requested a blood sample. The officer read the implied consent form aloud to Taylor, but did not provide him with a written copy of the form. Taylor refused the blood sample and refused to sign the implied consent form; he was therefore issued a notice that his driver’s license would be suspended for ninety days.
Taylor filed for an administrative hearing to challenge the license suspension. The hearing officer upheld the suspension. Taylor petitioned for judicial review contending the license suspension was invalid because he had not been provided with a written copy of the implied consent law, as required by S.C. Code Ann. § 56-5-2951 (2006). The trial court agreed and reversed the license suspension. The Court of Appeals reversed the trial court’s ruling; it held Taylor was not prejudiced by the lack of a written copy of the implied consent form because he was read those rights aloud.
ISSUE
Did the Court of Appeals properly hold that Taylor was not prejudiced by the lack of written notice of the implied consent law?
DISCUSSION
The Implied Consent Statute, S.C. Code Ann. § 56-5-2950(a) (2006), provides that a person who drives a motor vehicle in South Carolina is considered to have given consent to chemical tests of his breath, blood, or urine to determine whether the person was driving a motor vehicle while under the influence of alcohol, drugs, or a combination of alcohol and drugs. The statute provides, in pertinent part:
No tests may be administered or samples obtained unless the person has been informed in writing that:
(1) he does not have to take the test or give the samples, but that his privilege to drive must be suspended or denied for at least ninety days if he refuses to submit to the tests and that his refusal may be used against him in court;
(2) his privilege to drive must be suspended for at least thirty days if he takes the tests or gives the samples and has an alcohol concentration of fifteen one hundredths of one percent or more;
(3) he has the right to have a qualified person of his own choosing conduct additional independent tests at his expense;
(4) he has the right to request an administrative hearing within thirty days of the issuance of the notice of suspension; and
(5) if he does not request an administrative hearing or if his suspension is upheld at the administrative hearing, he must enroll in an Alcohol and Drug Safety Action Program.
S.C. Code Ann. § 56-5-2950(a). (Emphasis supplied). Subsection 56-5-2950(e) provides that the failure to follow policies or procedures set forth in § 56-5-2950 will result in the exclusion from evidence of any tests results, “if the trial judge or hearing officer finds that such failure materially affected the accuracy or reliability of the tests results or the fairness of the testing procedure.” Notably, neither section (a) nor section (e) addresses the issue of license suspension for the failure to comply with the procedures set forth therein.
S.C. Code Ann. § 56-5-2951(a), governs the Department of Motor Vehicle’s (DMV) suspension of a driver’s license for refusing to submit to a test or for certain levels of alcohol concentration. The statute states that the DMV “shall suspend the driver’s license . . . of . . . a person who drives a motor vehicle and refuses to submit to a test provided for in Section 56-5-2950;” the statute gives an offender thirty days in which to request an administrative hearing. S.C. Code Ann. § 56-5-2951 (B) (2). The hearing must be held within thirty days and is limited to a determination of whether the person:
(1) was lawfully arrested or detained;
(2) was advised in writing of the rights enumerated in Section 56-5-2950;
(3) refused to submit to a test pursuant to Section 56-5-2950; or
(4) consented to taking a test pursuant to Section 56-5-2950 (and several conditions relating to administration of the test).
S.C. Code Ann. § 56-5-2951(F) (1-4). We find nothing in section 56-5-2951 which mandates re-issuance of the driver’s license if one, or all of the above factors is not met. If the Legislature had intended the lack of written notice (or any other factor) to be a fatal defect, it could have said so in the statute. Giannini v. SC Dep’t of Transportation, 378 S.C. 573, 664 S.E.2d 450 (2008) (if Legislature had intended certain result in a statute it would have said so). Accord S.C. Dep’t of Motor Vehicles v. Nelson, 364 S.C. 514, 523, 613 S.E2d 544, 549 (Ct. App. 2005) (requirements for suspension for refusal to consent do not include written notice of implied consent statute).
We hold the criterion in § 56-5-2951(f) are simply factors which the DMV may consider in determining whether to uphold a suspension, i.e., a prejudice analysis. Given that nothing in § 56-5-2951 provides for mandatory re-issuance of a driver’s license upon review of these factors, we find an examination of the four factors with an eye toward prejudice is the proper inquiry. Accordingly, the Court of Appeals properly applied a prejudice analysis. Given that it is undisputed Taylor was advised of the implied consent warning, the Court of Appeals properly found he suffered no prejudice from the officer’s lack of written notice. Accordingly, the Court of Appeals’ opinion is affirmed.
AFFIRMED.
TOAL, C.J., and Acting Justice Billy A. Tunstall, concur. BEATTY, J., dissenting in a separate opinion in which PLEICONES, J., concurs.
JUSTICE BEATTY: I respectfully dissent. Section 56-5-2950(a) of the South Carolina Code specifically states no tests may be administered or samples obtained unless the person has been informed in writing of certain provisions of the section. S.C. Code Ann. § 56-5-2950(a). It is undisputed that Taylor was not “informed in writing.” In my view, the Department of Motor Vehicles cannot suspend a driver’s license because driver refused to take a test that the law enforcement officer was not authorized to administer.
The South Carolina Legislature specifically set forth a pre-condition that must be met before any tests may be administered. Section 56-5-2950 is unambiguous and its meaning and intent are clear. The Court may not simply ignore it. I would reverse the decision of the Court of Appeals.
PLEICONES, J., concurs.
Mar 6, 2012 | DUI & DWI, Uncategorized
This SC Supreme Court case addresses an issue we encounter routinely as we practice in both South Carolina and North Carolina. Whenever you are arrested for DUI in one state, that arrest is supposed to be communicated back to your “home” state. If you refuse to submit to the breathalyzer, your driving privileges are immediately suspended for six (6) months in SC and twelve (12) months in NC. In order to regain your license, you may have to resolve the various requirements in both states. This case stands for the proposition that due process and fundamental fairness applies to this interest. Although the Courts make a critical distinction between “rights” in criminal courts and “privileges” in civil DMV hearings, the characterizations are rendered moot when it comes to the legal proceedings involved in both forums. Better make sure your DUI attorney understands these crucial differences and is willing to fight for you in court. There is too much at stake to risk an inexperienced lawyer.
At Reeves, Aiken & Hightower LLP, our seasoned attorneys have over 70 years of combined trial experience in both civil and criminal courts. We focus our criminal practice on DUI and DWI cases in both South Carolina and North Carolina and are available by mobile phone in the evenings, on weekends, and even holidays. Our lawyers are licensed in both states and are aggressive criminal trial attorneys. We are not afraid to go to Court and often do. Don’t settle for a lawyer who only wants to reduce your DUI charges to reckless driving. We welcome the opportunity to sit down and personally discuss your case. Compare our attorneys’ credentials to any other firm. Then call us today at 803-548-4444 for a private consultation. Or visit our firm’s website at www.rjrlaw.com.
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Charles R. Hipp, III, Respondent,
v.
South Carolina Department of Motor Vehicles, Appellant.
Appeal from Charleston County
Michael G. Nettles, Circuit Court Judge
Opinion No. 26588
Heard December 4, 2008 – Filed January 26, 2009
AFFIRMED
General Counsel Frank L. Valenta, Jr., Deputy General Counsel Philip S. Porter, and Assistant General Counsel Linda A. Grice, all of Blythewood, for Appellant.
Michael A. Timbes, of Thurmond, Kirchner & Timbes, of Charleston, for Respondent.
PER CURIAM: South Carolina Department of Motor Vehicles (SCDMV) appeals the order of the circuit court enjoining it from suspending the driver’s license of Respondent Charles R. Hipp, III (Respondent) as a consequence of Respondent’s 1993 Georgia conviction for driving under the influence (DUI). We affirm.
FACTS
Respondent was arrested and pled guilty to DUI in the State of Georgia in 1993. At the time of the arrest, Respondent was a South Carolina resident attending college in South Carolina, and a driver licensed by the South Carolina Department of Motor Vehicles (SCDMV). As a result of his plea, Respondent paid a fine to the State of Georgia and fulfilled other conditions required by Georgia. In 2005, twelve years after his conviction, Respondent received notice from the SCDMV that his South Carolina driver’s license was being suspended as a consequence of his 1993 Georgia DUI conviction. Respondent filed a declaratory judgment action asking the court to enjoin suspension of his license. The circuit court issued an order enjoining the SCDMV from suspending Respondent’s driver’s license.
ISSUE
Did the circuit court err in enjoining the suspension of Respondent’s driver’s license?
STANDARD OF REVIEW
“Actions for injunctive relief are equitable in nature.” Shaw v. Coleman, 373 S.C. 485, 492, 645 S.E.2d 252, 256 (Ct. App. 2007). In actions in equity this Court may find facts in accordance with its own view of the preponderance of the evidence. Id.
ANALYSIS
The circuit court cited three grounds for enjoining suspension of Respondent’s driver’s license: (1) that the applicable statute is ambiguous; (2) the doctrine of laches; and (3) that suspension twelve years after conviction violates the “fundamental fairness” required by due process. We find the circuit court’s conclusion as to fundamental fairness to be persuasive and so, affirm.[1]
A person’s interest in his driver’s license is property that a state may not take away without satisfying the requirements of due process. Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed2d 90 (1971). Due process is violated when a party is denied fundamental fairness. City of Spartanburg v. Parris, 251 S.C. 187, 191, 161 S.E.2d 228, 230 (1968).
This Court addressed facts similar to those in the case at hand in State v. Chavis, 261 S.C. 408, 200 S.E.2d 390 (1973). While we found fundamental fairness was not violated by suspension after a one-year delay, we allowed that there might be circumstances under which it could be soundly held that the State had no right to suspend a driver’s license after a lengthy delay. Id. at 411, 200 S.E.2d at 391. We find in the instant case the extreme circumstances contemplated by Chavis.
While we do not intend to set forth a bright line rule, we find that imposition of a suspension after more than twelve years delay, where Respondent bears no fault for the delay, is manifestly a denial of fundamental fairness.[2] Though neither dispositive nor directly applicable to the instant case, we note that Title 56 of the South Carolina Code, which addresses “Motor Vehicles,” is replete with ten-year limitations for purposes of sentence enhancement and keeping record of convictions. See, e.g., S.C. Code Ann. §§ 56-1-746 (for purposes of determining a prior offense for sentence enhancement of alcohol-related offenses, only convictions within ten years of the date of the most recent violation are considered prior offenses); 56-1-1340 (violation convictions shall be entered in the records of the SCDMV for a period of ten years); 56-5-2940 (for sentence enhancement of convictions for operating motor vehicle under influence of alcohol or drugs, only those violations which occurred within ten years preceding date of last violation constitute prior violations); 56-5-1990 (in determining time of suspension of driver’s license, only violations which occurred within ten years of the last violation shall constitute prior violations).
CONCLUSION
We agree with the circuit court that under the unique circumstances of this case, the attempted suspension of Respondent’s driver’s license twelve years after conviction constitutes a denial of fundamental fairness. The order enjoining suspension is therefore
AFFIRMED.
TOAL, C.J., WALLER, PLEICONES, BEATTY and KITTREDGE, JJ., concur.
[1] Having found the circuit court’s decision supported by its finding that Respondent was denied fundamental fairness, we do not address the remaining grounds. See Wilson v. Moseley, 327 S.C. 144, 147, 488 S.E.2d 862, 864 (1997).
[2] It should be noted that neither Respondent nor SCDMV is at fault for the delay. The unexplained delay in reporting the 1993 violation appears to be solely attributable to the inaction of the State of Georgia.
Mar 1, 2012 | DUI & DWI, Uncategorized
In a recent story reported by WJBF News Channel 6 posted on February 16, 2012, there is an apparent effort to “close the loophole” which allows DUI defendants to drive mopeds despite not being able to get a regular driver’s license during a suspension period. At the risk of seeming flippant, I always thought driving a moped was part of the rehabiliation process. The jokes alone would seemingly deter future bad conduct. Nevertheless, the legislature is taking active steps to deprive accused drivers from using mopeds to get around or go to work. Truly drunk drivers should be arrested and punished, especially if they injure or kill innocent victims. However, as a practicing DUI attorney, I regularly meet good, hard working individuals who have gotten caught up in the current DUI hysteria after having a drink with dinner or a beer with a friend. If you drive with any amount of alcohol on your breath and are stopped, you are going to be arrested and spend the night in jail no matter what you say or do. If you attempt to perform field sobriety tests, you will invariably fail and be arrested. If you decline any question or test, you are going to jail. You get the idea here. The best advice, pre-DUI arrest, is to simply not drink at all before driving. Even though that is not what the laws requires, it is the only protection available to prevent a wrongful DUI arrest.
At Reeves, Aiken & Hightower LLP, our seasoned attorneys have over 70 years of combined trial experience in both civil and criminal courts. We focus our criminal practice on DUI and DWI cases in both South Carolina and North Carolina and are available by mobile phone in the evenings, on weekends, and even holidays. Our lawyers are licensed in both states and are aggressive criminal trial attorneys. We are not afraid to go to Court and often do. Don’t settle for a lawyer who only wants to reduce your DUI charges to reckless driving. We welcome the opportunity to sit down and personally discuss your case. Compare our attorneys’ credentials to any other firm. Then call us for a private consultation. www.rjrlaw.com.
Here is the story:
Columbia, SC –A South Carolina Senate committee has approved a bill that would close a loophole in the state’s DUI law that has allowed people to drive mopeds while drunk.”It seems strange, but some magistrates have agreed that the law exempted mopeds from DUI laws,” says Sen. Larry Grooms, R-Bonneau, chairman of the Senate Transportation Committee. “So we’re absolutely closing that loophole.”
The problem is that state law does not consider mopeds to be motor vehicles. The state House passed a bill last year that would change that, to treat mopeds as motor vehicles in all circumstances. But Sen. Grooms says the House bill would lead to some unintended consequences, like allowing mopeds on Interstate highways, even though by definition a moped can’t go more than 30 miles per hour on level ground.
Mopeds are often associated with DUIs, because people who lose their driver’s licenses because of drunken driving can still drive a moped. State law says, “a person must possess a valid driver’s license … or a valid moped operator’s license … except that a person whose driver’s license has been suspended for a period of six months or less is not required to obtain a moped operator’s license or possess a valid driver’s license during the period of suspension.”
The Senate version of the bill would not change that. Sen. Grooms says, “The Senate amendment classifies mopeds as a motor vehicle only in the section of law dealing with driving under the influence.”
Moped driver Taylor Harrison, of Greenville, thinks closing the moped DUI loophole is a good idea. “Because a moped is essentially a motorcycle just powered down a little bit less. So if you drink and drive while on it, it still can be as dangerous as drinking and driving while on a motorcycle or something else,” he says.
But Billy Campbell, owner of Hawg Scooters in Columbia, says he doesn’t see a need for the change. “Clearly they don’t get all the DUI drivers,” he says. “So why are we going after mopeds?”
He says only the driver of a moped is likely to be hurt in a moped DUI accident. “There’s not going to be some mopedist that runs into a family and kills anybody,” he says.
The bill now goes to the full Senate floor, where Sen. Grooms expects it to pass. If it does, since senators changed the House version, the two bodies will have to reach an agreement on a final version.
