You are simply leaving the restaurant. Then, flashing bright, blue lights appear in your rearview mirror. You pull over. The handcuffs come out. You go to jail. Then, the breath test machine is in front of you, and you are asked to blow.
You thought it could never happen to you, but it has. You have been arrested for DUI and have been taken to jail.
Long before you bond out of jail, your questions pile up. You want to know everything about DUI law. And you want your questions answered by someone who knows DUI law and who has tried many DUI cases. As someone who has practiced DUI law for over 31 years, I am here to help. This is what we do. DUI Defense.
Common Questions & Answers About DUI
We have been answering client posed questions about DUI charges for years. We assembled a list of the most frequently asked questions below. If you happen to have a question that didn’t make this short list, call us. We are always happy to answer questions about this area of criminal defense as well as other areas of criminal law.
If you or someone you know has been charged with drinking and driving and need answers… keep reading!
1. Are DUI and DWI the same thing?
So to speak. In South Carolina, the offense has always been termed “DUI.” Other states refer to basically the same offense differently. In some states, the offense can be called “DWI,” or Driving While Intoxicated.
2. Is DUI a criminal offense?
Absolutely. While the DUI charging document itself is a blue traffic ticket, the answer to this question is still yes. DUI is a criminal offense which can carry jail time if you are convicted.
There are also “administrative” penalties which can be imposed by the Department of Motor Vehicles (DMV). Administrative penalties include suspension of your driver’s license or your privilege to drive in SC (if you are licensed in another state at the time of your arrest); a requirement to attach an alcohol ignition interlock device; completion of ADSAP (Alcohol Drug Safety Action Program); and other costly and time-consuming requirements.
3. Is a DUI charge a misdemeanor or a felony?
Both. It depends on the DUI offense you are charged with.
First, second, and third DUI offenses are misdemeanors, carrying $400 to $10,000 in fines, and anywhere from 48 hours to five years of jail time, as well as anywhere from a six-month to four-year license suspension period, depending upon the level of DUI conviction.
A fourth or subsequent DUI is a felony, which, upon conviction, can carry a minimum of one to seven years of prison time and permanent driver’s license revocation.
4. Are DUI checkpoints legal?
Although twelve states have chosen to outlaw DUI checkpoints, South Carolina DUI checkpoints are legal.
The 4th Amendment to the US Constitution restricts any police intervention with a citizen’s movement that constitutes a “seizure” (albeit usually a brief seizure in a roadblock context.) A roadblock or license checkpoint is a “seizure” of a citizen driving the public roads. The 4th Amendment mandates that seizures must be “reasonable.” What is “reasonable” or not has been defined by appellate courts over the years.
A warrant obtained by police to seize a person is considered “reasonable.” But warrants are not used in roadblock situations.
So, what makes a police-conducted roadblock reasonable when police do not obtain a warrant? Our appellate courts have established guidelines for trial courts to apply this standard. Guidelines include the following.
The police cannot set up a roadblock anywhere they like. They must establish that there is a basis for a roadblock that is related to traffic safety. A fundamental way for the police to do this is to rely upon traffic safety statistics which establish a logical basis for the motoring public to be “seized.” For example, if records establish that a high number of accidents are associated with a particular intersection, that location may warrant a need for enhanced traffic enforcement a roadblock provides.
It is unconstitutional for police to stop cars randomly. If a roadblock is set up, each car in the path of travel must be stopped and driving documents checked. Courts have ruled that it would be unreasonable for police to only stop cars they subjectively conclude need to checked. This would afford the police a discretion the constitution does not authorize.
Records of all roadblock activity must be kept to determine if the site location selection was supported by existing statistics.
A supervisor must be present to oversee the roadblock operation.
The duration of the stop of all cars must be brief so as not to impede the traffic flow of law abiding drivers. A driver may only be detained longer if there is “reasonable suspicion” of the commission of a crime. This is the law that applies to roadblock/DUI cases.
The roadblock must be publically announced. The law enforcement agency planning a roadblock operation must announce the location of the operation. Frequently, agencies meet this requirement by publishing this information or asking media sources to do so. While it has been suggested that this defeats the purpose of enforcement of highway safety by advising the public where not to travel, other opinions offer that this goal is met indirectly, by publishing a reminder that officers are out in force and in number “policing” driver compliance with traffic laws. Rather than deciding not to drive to that location after consuming an excess of alcoholic beverages, a driver may elect to not drink at all, simply not drive or stay at home.
If you are stopped at a roadblock, you will be asked to present your driver’s license, proof of insurance and registration for the vehicle you are operating. If during the course of the officer’s examination of the validity of those documents, he or she observes facts that support not their mere suspicion of DUI, but facts establishing reasonable suspicion that a driver is under the influence of alcohol or drugs to the extent that his or her mental faculties to drive are materially and appreciably impaired, an officer may then proceed to a field investigation of his reasonable suspicion that the driver is impaired.
What might those facts be? Usually, in a roadblock situation, driving ability is not an issue. Cars approach the roadblock in cue and wait in line. An officer participating in a roadblock operation does not have the opportunity to observe a driver’s ability to drive such as when he or she is following a car and notices that it is weaving across the roadway.
The officers are trained to look for objective clues of impairment which collectively form reasonable suspicion that the driver is impaired and that further investigation is warranted. Common, noted police observations include bloodshot eyes, slurred speech, open containers with alcoholic beverages in plain sight in the vehicle, among others. Only when facts derived from this field investigation form probable cause may a law enforcement officer arrest a driver for DUI.
5. Will a DUI charge affect my car insurance?
Yes, it can! One of the ways it affects car insurance is that a vehicle liability insurance document, SR-22, is required by the DMV for drivers convicted of DUI during the period of suspension. SR-22 may be required for well past a period of suspension, for as much as three years from the date of the suspension. This type of insurance is known as “assigned risk.” It may be more costly than ordinary coverage.
6. Do DUI charges transfer from state to state?
Yes. SC is a member of the Interstate Driver’s License Compact, which is an agreement among states to exchange driver information when a home state driver is charged with and convicted of a motor vehicle related offense in another state. If a state DMV receives information that one of its drivers has been convicted of a traffic offense in another state, it may apply penalties to its driver. This depends upon the laws of the home state.
Another important aspect to this question regards how a state “counts” previous DUI convictions within a period of time. In SC, a person can be charged with DUI 2nd, if within ten years they have been convicted of a previous DUI. The point is that most states nowadays do not limit charging a person with DUI 2nd or greater only if a prior DUI occurred in their states. Most state laws provide that a DUI conviction in any state within a specified period of time can support a charge of 2nd or greater DUI.
In short, yes. A DUI conviction will follow you.
7. Are DUI charges public record?
Yes, DUI charges are public record. Unfortunately, the internet has brought forth an industry which culls these public records which they publish for profit. Despite the presumption of innocence that applies to arrested persons, this is legal. Arrest records are public. The arrest and jailing of citizens must be public record. Secret arrests are not allowed in our country, thank goodness.
8. Does a pending DUI charge show up on a background check?
Yes, pending and convicted DUI charges will appear on a background check. (See above.) When charges show up on a background check they can affect your life dramatically. While charges do not equal convictions, being charged alone can have a stigmatic effect when appearing in a background check. Information is now a commodity. Arrest data not resulting in conviction is subject to expungement where those public records are maintained. However, expungement orders do not apply to private entities selling information which was acquired when the information was public. It is complicated and in my opinion, is unfair.
9. Will a DUI conviction affect my employment?
Yes. A DUI conviction can affect your current and future employment options. Many employers will not hire anyone convicted of DUI based on the perception that you may be a safety risk to people and property, particularly if your drive a company car, or your job involves entering private homes. As a result, insurance companies may increase rates for an employer if driving is a part of your job description.
If your profession requires you to possess a license (teaching license, law license, nursing license or similar), the state may revoke or suspend your professional license. The SC Labor, Licensing and Regulation Division may also require you to participate in substance use and abuse evaluation and treatment.
10. How long does a DUI charge stay on my record?
In SC, the criminal conviction will remain on your record forever. For purposes of a DUI charge being “enhanced” to a successive offense such as DUI 2nd or greater, only previous violations occurring within ten years of the date of your current DUI arrest can be used as predicate offenses.
Additionally, the SC DMV provides driver’s records either for the past three years or up to ten years.
11. Can a DUI charge be expunged in SC?
Currently, SC DUI convictions cannot be expunged. A DUI “charge” not resulting in conviction can be expunged. For DUI 1st offense charges that end in dismissal or acquittal, our law requires the clerk of court to prepare and process an expungement order.
12. Can DUI charges be dismissed or dropped?
Our law authorizes prosecutors to dispose of any criminal charge as he or she sees fit so long as when doing so, he or she does not commit mis or malfeasance. Plea bargaining is an indispensable part of our criminal justice system. Dockets are overcrowded and courts are woefully underfunded. If every criminally charged person demanded a jury trial, the system would shut down. This is an accepted fact.
For this reason, cases must be concluded or “moved” (not one of my favorite words) without trial.
A trial-experienced DUI lawyer’s job is to fully develop a client’s defense in his or her particular case under the facts of the case and the law that applies. DUI law is unique among S.C.’s criminal offenses. For example, while billboards project that our highways are governed by zero tolerance on drinking drivers, that is not what the law provides.
For example, our law provides that a breath or blood alcohol reading of .05 of 1% or less means that a person charged with DUI is conclusively presumed to NOT be under the influence of alcohol. DUI is the only criminal law in S.C. that provides for post-arrest exoneration on the occurrence of an event, in this example, a breath alcohol reading of .05 of 1% or less.
As such, the importance of undermining the accuracy of any breath or blood alcohol measurement is critical to a well-prepared DUI defense. What I could offer a 60 Minutes episode about the reliability of the breath alcohol test results would take 60 hours.
Equally important, is attacking the accuracy of this reading considering that our law provides for enhanced punishment tied to a breath/blood alcohol reading.
Yes. DUI charges can be defended and considering the impact a conviction brings, should be.
13. Can DUI charges be reduced to reckless driving?
While reckless driving is not a “lesser included offense” of DUI, within the prosecutorial discretion addressed above, a DUI can be dismissed and a plea can be entered for some other traffic offense supported by the facts of the case. What constitutes a “win” in a DUI defense case varies from case to case and client to client. Our goal is to seek the best outcome under the facts of the case and the law that applies.
14. Can a DUI charge be dismissed by the judge?
Not actually. A judge can grant defense motions which might “gut” the prosecution’s case resulting in the prosecutor dismissing the case or engaging in plea bargaining. Such motions could be to suppress evidence. However, at trial, a judge can grant a defendant’s motion for a directed verdict of not guilty upon failure of the prosecution to prove the case.
15. Do I need a lawyer to handle a DUI charge?
Any person charged with any criminal offense needs a lawyer. A DUI charge comes with harsh penalties worth fighting to attempt to avoid. The aftermath of a DUI conviction can be devastating. You could lose your license, causing you to become dependent on others and/or public transportation. You could lose your job, or worse, you could face jail time.
The Bottom Line
Being charged with a DUI is much more than getting a traffic ticket. The Rules of Ethics provide that a lawyer is allowed to distinguish himself from other lawyers if he can substantiate that distinction. Thirty-one years of experience in DUI defense is distinguishing. Kulp & Elliot is here to help.
Should you or someone you know find yourself accused of driving under the influence, call us today at 843-853-3310 for a free, face-to-face, detailed case review, or complete our online contact form.