Most people do not consider the possibility that they could be arrested for DUI. Many people think that being arrested for DUI is something that happens to other people—a colleague’s relative or a stranger whose mug shot they see splashed all over the news and the internet. Unless a person who drinks never drives, or a person who drives never drinks, there is no guarantee that they might not be arrested for DUI and find themselves in jail not just charged with DUI, but Felony DUI.
What is the difference between DUI and Felony DUI? Years of potential prison time for one.
Up to Twenty-Five Years in Prison?
Maybe someone left a party at a neighbor’s house just around the corner from home. Or perhaps, after happy hour, they decided to head home because they did not have that much to drink. Yet, they had no idea what their BAC or blood alcohol concentration was or a way to determine that. How would they know that?
One the way home, something unexpected happened—a texting pedestrian crossed the street in front of them that they did not notice until it was too late. Or, as they passed through an intersection on a green light another car appeared out of nowhere in their path.
A crash occurred. Someone was severely hurt—maybe fatally injured. What followed this driver’s shock, alarm and attempts to assess what happened, was the arrival of police officers and EMS teams.
When arriving officers learned that the accident involved serious injury or death and detected that this driver had been drinking, an accident became a Felony DUI investigation. From that moment on, a man simply heading home feared that his new home could be a state prison. His nightmare began.
What Makes DUI a Felony DUI?
In most states, including South Carolina, the offense of driving under the influence (DUI) is a misdemeanor. A DUI is a Felony DUI when there is evidence:
- Of physical harm to another person that results in:
- Great bodily injury, or
- Death, and
- That the driver violated one or more traffic offenses, and
- That the acts of the driver are the proximate cause of the serious bodily injury or death of another.
In short, a person can be arrested for Felony DUI when an officer concludes there is probable cause that the person was driving a motor vehicle anywhere in South Carolina, was under the influence of alcohol or drugs, violated a traffic law, and his driving and impairment was the proximate cause of the serious bodily injury or death of another.
What is “proximate cause”?
“Proximate” comes from the Latin word for “nearest.” In this context, proximate cause means that a driver’s action is the nearest, direct cause of an injury or death. In other words, if the act of the driver had not taken place, the injury would not have occurred.
What constitutes “great bodily injury”?
Under the South Carolina Felony DUI law, the definition of “great bodily injury” is defined as bodily injury which is life threatening, causes permanent disfigurement, or results in the loss or impairment of the function of any bodily function or organ. To arrest a person for Felony DUI in this instance, an officer must conclude that there is probable cause that great bodily injury occurred in addition to the other elements of Felony DUI.
Felony DUI Penalties
Our legislature enacts criminal laws and associated punishments. Applying these laws, courts must sentence those persons who either pleaded guilty to a criminal offense or who are found guilty by a jury at trial.
When enacting punishments for crimes, a primary factor the legislature considers is the seriousness of the offense. The level of severity can stem from consideration of the degree of injury to a victim of a crime. As opposed to DUI, punishment for Felony DUI is enhanced if a person is convicted of causing serious bodily injury to a victim or their death. The punishment is substantially enhanced.
If an individual has either pled guilty or has been found guilty of Felony DUI, a court must then determine the appropriate punishment. While a state court is never required to disclose how it determines what sentence to impose, many factors come into play. Courts consider the person’s arrest and conviction record, if any, his post-arrest rehabilitation efforts, evidence his attorney presents in mitigation, victim impact and other factors.
The court’s primary sentencing guide is what South Carolina law provides as to the offense of conviction. In the case of Felony DUI, possible sentences are set forth as a range of prison time. These ranges apply to both types of Felony DUI, serious bodily injury and death. Expectedly, they differ considering that one is based on injury and the other on death.
Punishment for Felony DUI Where Serious Bodily Injury Occurs
Where serious bodily injury occurs, South Carolina law provides for a prison sentence of not less than thirty days and not more than fifteen years (which cannot be suspended; probation cannot be granted) and a fine of not less than $5,000 nor more than $10,000. The SC Department of Motor Vehicles will suspend the individual’s license for the period of incarceration imposed plus three years and require the installation of an Ignition Interlock Device (IID) on the person’s vehicle before he or she can drive again.
Punishment for Felony DUI Where Death Occurs
Where death occurs, South Carolina law provides for a mandatory minimum prison sentence of at least one year but no more than twenty-five years (which cannot be suspended on probation) and a fine of not less than $10,000 nor more than $25,000. Additionally, the individual is not eligible for parole. The SC DMV will suspend his or her license for the period of incarceration imposed plus five years. Before the person can drive again, he or she will have to install an Ignition Interlock Device in the vehicle.
Punishment for Multiple Counts
In circumstances where the acts of a driver prosecuted for Felony DUI cause serious bodily injury or death to more than one person, a driver can be charged with a “count’ of Felony DUI for each person who is injured or dies. The law provides that a court, upon conviction of the driver, must sentence the driver on each “count” of conviction.
When imposing sentences on multiple counts of conviction, a court can order that the sentence for each count run concurrently or consecutively. Concurrently means that all sentences run or are considered served at the same time. Consecutively means that the sentence on each count must run in sequence. If a person were sentenced, for example, to two 20-year sentences, ordered to be served consecutively, the first 20-year sentence would have to be served and when completed, the second 20-year sentence would begin. If ordered to be served concurrently, both of the 20-year sentences would be considered to be served at the same time.
Felony DUI Defense
Being arrested for DUI can be an intimidating and overwhelming experience. It is not uncommon for a person who has never been in trouble with the law to find himself or herself in handcuffs charged with DUI or Felony DUI.
Considering that almost every DUI or Felony DUI involves breath or blood testing, a defense lawyer’s knowledge of the complexities and vulnerabilities of these testing methods is critical to preparation and presentation of an effective defense of a client.
Breath testing in South Carolina is accomplished by the use of one machine, the Intoximeter DMT Datamaster formerly produced by the National Patent Analytical Company in Mansfield, Ohio. Not only has Mr. Kulp visited the factory, he attended a three-day factory course a few years ago. During that course, the science of infrared spectroscopy was covered as well as the physiological interaction of ethanol and the human body.
Mr. Kulp has learned over years of study and research that results produced by this machine should not necessarily be taken at face value. This machine is designed to measure the quantity of ethanol in human breath (vapor) and, using software code, convert an electronic value into an estimate of the amount of ethanol in blood (a liquid).
The DMT analytical software code has never been effectively or independently tested. Efforts to obtain independent testing of this code have been strongly resisted by SLED and the manufacturer of the machine. The excuse presented is that the company’s “trade secrets” would be made public. The defense bar, who recognizes the necessity for testing the software, have offered to take every step to protect these “secrets” from disclosure during any independent testing. Those offers have been rejected. Mr. Kulp will address this issue in detail in future blog posts.
In the arena of blood alcohol testing, which is more frequently an aspect of a Felony DUI case than a DUI case, collected blood samples are tested for the presence and quantity of ethanol using various laboratory methods. Many hospitals use an enzymatic method. Forensic laboratories test samples using gas chromatography and mass spectrometry analysis.
Blood and breath alcohol sample testing results are a critical component of the prosecution’s case. In DUI and Felony DUI cases, a criminal defense lawyer must have the knowledge and skills to scrutinize every aspect of testing from the collection of samples to the production of testing results. A defense lawyer must to be able to convincingly explain testing complexities to a court and potentially, to a jury.
Einstein is reported to have said, “You cannot say that you understand something unless you can explain it to your grandmother.” That perspective applies to alcohol testing in DUI and Felony DUI cases. A defense lawyer must be capable of challenging any courtroom suggestions that the testing process must be accepted as accurate and reliable because the science behind the testing is “too complicated.” There have been occasions where state witnesses, without scientific degrees, have “explained” the science employed in the testing process in such a convoluted way that Einstein himself couldn’t follow the 132 word sentence offered in testimony.
Mr. Kulp does not accept DUI cases just because a prospective client calls, walks in the firm door or is referred by another lawyer. He has prosecuted and defended thousands of DUI cases since prosecuting his first DUI as Charleston City Prosecutor in 1980. He has defended clients charged with Felony DUI involving serious bodily injuries and deaths.
Consider Hiring Us As Your Counsel and Advocate
Mr. Kulp is one of seven Board Certified Criminal Defense Attorneys in South Carolina certified by the National Board of Trial Advocacy. He was certified in 1999 and has been recertified twice since. This certification authorizes him to present himself as a specialist in criminal defense in South Carolina. Lawyers who are not board certified are prohibited from holding themselves out as specialists.
For the last ten years, Mr. Kulp has been designated as a DUI/Criminal Defense “SuperLawyer” on the recommendation of his peers.
With nearly 40 years of collective experience in criminal law as a former judge, prosecutor, FBI Special Agent, and defense attorney, Mr. Kulp is committed to pursuing the best possible outcome for clients under the facts and circumstances of their case and the applicable law.
Make an appointment to meet face to face to discuss your case with Mr. Kulp. He reviews cases without charge. As he has said many times, “It is essential to meet with prospective clients personally. Only then can I adequately assess their case and present evidence of my extensive knowledge and experience in DUI and Felony DUI defense.”
Call 843-853-3310 or complete our online form to arrange an appointment as soon as possible.