What is a Felony DUI under South Carolina law? 

One of the most frequent questions we are asked by new DUI clients is whether a DUI charge is a felony or a misdemeanor. Understandably, given the intense negative media focus about the dangers of impaired driving, many assume a DUI arrest must be a felony, and they are potentially looking at prison time. Fortunately, a “regular” DUI charge is only a misdemeanor. However, a conviction or plea will result in a permanent criminal record. There is no current provision under the law to ever have a DUI expunged from your record. And, given the political climate, no such law is envisioned as no politician wants to sponsor a bill that will be depicted as “helping drunk drivers.” So what makes one arrest a misdemeanor and another a felony? Serious bodily injury or death changes everything as we will explain further below. For now, just be aware how easy it is to find yourself in even more serious trouble if you take a chance and get behind the wheel after having a drink with dinner or beers with friends at the game. Even if you are not truly “impaired” under DUI standards, you can be charged with a felony DUI if you have an accident with another vehicle and cause serious injury or death. Or, in single vehicle accident cases, you can face prison time if your passenger is seriously hurt or dies. We know this area of DUI law is important to you. Consequently, we will outline what the law provides and then show you the actual statute for your own review. A felony DUI is most serious, and you should retain experienced DUI defense counsel as quickly as possible after being charged.

To be convicted of a felony DUI charge in South Carolina, the prosecution must prove the following elements:

• 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 very similar to a DUI, but unlike a misdemeanor DUI, the statute does not mention that the drugs or alcohol must also impair the ability of the driver to drive safely. Under this law, your blood alcohol concentration (BAC) may even be below the 0.08% presumptive level. Nevertheless, if alcohol and/or drugs play any role, this first element is satisfied for a felony DUI.

The second element, as written, may allow individuals who are under the influence, but do nothing else wrong, to escape a serious felony DUI charge.  For example, a driver while under the influence who kills a driver who suddenly turns in front of him will probably not be charged with a felony DUI charge. Why?  Because the impaired driver broke no other law and breached no other legal duty.  The other driver was at fault. However, an arresting officer may elect to charge you with following too closely, failure to yield, or reckless driving to meet this element of the felony DUI charge. These charges are legally vague and can apply to many typical driving situations. Under the law, for example, taking your eyes off the road for an instant to change radio stations is technically “reckless driving.”

The third element contains two prongs: “proximate causation” and “great bodily injury.”  What do these phrases mean? Proximate causation basically means legal causation, not factual causation, that will be recognized for a certain purpose. In the previous example, the impaired driver arguably would still not be charged with felony DUI because the other driver abruptly turned in front of an oncoming car and caused the accident. Although impaired, the impairment was not the “proximate cause” of the crash.

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.” In serious automobile accidents, it is not unusual for someone to lose a body part or organ. This scenario would certainly qualify for a felony DUI. Also, pursuant to the statute, if someone dies of complications within 3 years of a “great bodily injury” as defined below, that death would meet the proximate causation standard. 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 little sentencing discretion in felony DUI cases. One last caveat: the local prosecutor can elect to charge someone with either felony DUI or , in the alternative, involuntary manslaughter or even reckless homicide.

For those individuals who want to read the actual statute for themselves, it is reproduced below, in relevant part:

SECTION 56-5-2945. Offense of felony driving under the influence; penalties; “great bodily injury” defined.

(A) A person who, while under the influence of alcohol, drugs, or the combination of alcohol and drugs, drives a motor vehicle and when driving a motor vehicle does any act forbidden by law or neglects any duty imposed by law in the driving of the motor vehicle, which act or neglect proximately causes great bodily injury or death to a person other than himself, is guilty of the offense of felony driving under the influence and, upon conviction, must be punished:

(1) by a mandatory fine of not less than five thousand one hundred dollars nor more than ten thousand one hundred dollars and mandatory imprisonment for not less than thirty days nor more than fifteen years when great bodily injury results;

(2) by a mandatory fine of not less than ten thousand one hundred dollars nor more than twenty-five thousand one hundred dollars and mandatory imprisonment for not less than one year nor more than twenty-five years when death results.

A part of the mandatory sentences required to be imposed by this section must not be suspended, and probation must not be granted for any portion.

(B) As used in this section, “great bodily injury” means bodily injury which 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.

The Department of Motor Vehicles must suspend the driver’s license of a person who is convicted or who receives sentence upon a plea of guilty or nolo contendere pursuant to this section for a period to include a period of incarceration plus three years for a conviction of Section 56-5-2945 when “great bodily injury” occurs and five years when a death occurs. This period of incarceration shall not include any portion of a suspended sentence such as probation, parole, supervised furlough, or community supervision. For suspension purposes of this section, convictions arising out of a single incident shall run concurrently.

(C) One hundred dollars of each fine imposed pursuant to this section must be placed by the Comptroller General into a special restricted account to be used by the Department of Public Safety for the Highway Patrol.

Links: National College for DUI Defense, SC Association of Criminal Defense Lawyers