DUI ignition interlock bill passes SC House

“Emmas Law” passed the House yesterday with a unanimous vote, and is expected to pass the Senate as well.  The law will require drivers to have an ignition interlock device for 6 months following a DUI 1st offense conviction with a BAC of greater than .15, and it will require an ignition interlock device for 2 years following a DUI 2nd offense conviction, regardless of the BAC level.

I’m ambivalent about requiring interlock devices for persons who are convicted of DUI, provided the devices are accurate (I don’t know that they are) and that they are mandated only for a definite period of time, such as the 6 month and 2 year requirements in this particular bill.  There are some nutcases out there who would like to require every person to have an ignition interlock device on their car, or require car manufacturers to install them on every car – that is untenable.

Of course, no DUI-related article in any self-respecting publication could forgo the obligatory slap at DUI lawyers, using the word “loophole” at least once:

South Carolina’s current DUI laws contain numerous loopholes that let people charged with DUI delay or avoid trial, get off with light sentences and resume driving quickly. Representing accused and convicted DUIs is a booming, $100 million-plus annual business for attorneys in South Carolina. About 30,000 people are arrested each year for DUI.

“Loophole” translates to “constitutional protection” or anything that is written into a law to protect ordinary people from over-zealous or over-reaching government officials.  Our current DUI law was carefully crafted by defense lawyers, prosecutors, and legislators to create a balance between aggressive DUI enforcement and protection of our rights.  The newest amendments to our state’s DUI laws increased penalties dramatically, with mandatory minimum sentences of up to 3 years and maximum sentences of up to 7 years, with a system of graduated penalties based on BAC level and prior offenses.

If you think that DUI defense lawyers are not necessary, consider that our state continues a system of rewards (not quotas), including shiny new cars, for law enforcement officers who make the most DUI arrests – not convictions, but arrests, without regard to the quality of the cases or whether the person arrested was actually guilty.

If you think that the only persons charged with DUI are hopeless drunks who are carousing the highways while liquored up, you are wrong.  I have handled cases where officers charged a person whose BAC was 0.00 and who then passed a blood test as well.  I have handled many cases where the person had a drink or two drinks and was well below the “legal limit.”  Some officers will charge a person if they smell alcohol, regardless of how many drinks the person had.  Whether you drink one half of one beer or 12 beers, it smells the same on your breath.

It is not against the law to drink and then drive, nor should it be.  It is against the law to drink to a point where your faculties to drive are materially and appreciably impaired – when your reflexes are impaired to the point where you are a danger to others on the highway.  The videotaping requirement in S.C.’s DUI law is not a “loophole” – it is a necessary check on an officer’s ability to arrest and prosecute people who are not violating the law.  We don’t have to take an officer’s word for it – the defense, prosecutor, judge, and jury can see the person’s conduct during the traffic stop for themselves.

DUI – reasonable efforts to maintain video equipment

In City of Greer v. Humble, decided March 27, 2013, the S.C. Court of Appeals upheld a municipal court’s dismissal of DUI charges based on the city’s failure to comply with the mandatory videotaping requirements of 56-5-2953.  By way of background, S.C. has a mandatory videotaping requirement for any DUI stop, which is contained in S.C. Code § 56-5-2953.  The video must begin no later than the activation of blue lights, it must include any field sobriety tests administered, it must show the arrest, and it must show the person being advised of his Miranda rights.

Because these requirements are mandatory, pursuant to City of Rock Hill v. Suchenski and Town of Mount Pleasant v. Roberts, the remedy for failure to comply is dismissal of the case.  Under 2953(B), the arresting officer can submit an affidavit certifying that the video equipment was in an inoperable condition and “stating which reasonable efforts have been made to maintain the equipment in an operable condition.”  Per the language of the statute, the affidavit must contain a statement of what reasonable efforts were made.

In Humble, the Court of Appeals noted that the officer’s affidavit was deficient on it’s face because it did not contain a statement of which reasonable efforts had been made to maintain the equipment – prior to the February 2009 amendments to 2953, the statute simply said the officer was required to state reasonable efforts had been made.  In 2009, the legislature amended the statute to specify that the officer, in the affidavit, must state specifically what reasonable efforts were made.  Then the trial court must make a determination as to whether those efforts were in fact reasonable.

Here, Officer Williams’ affidavit provides “[a]t the time of the defendant’s arrest, or probable cause determination, the video equipment in the vehicle I was operating was in an inoperable condition and reasonable efforts had been made to maintain the equipment in an operable condition.” We find that the circuit court erred in reversing the municipal court’s dismissal because the affidavit is deficient on its face. Even though there is no procedure in section 56-5-2953 either preventing or allowing a timely amendment of the affidavit, the statute requires an affidavit stating which reasonable efforts were made to maintain the equipment in an operable condition. The affidavit Officer Williams provided the municipal court does not state which reasonable efforts were made; thus, the City failed to comply with the plain requirements of section 56-5-2953. . . .

Therefore, we reverse the circuit court’s order because the affidavit does not provide an excuse for noncompliance with section 56-5-2953, as required by the statute. See Roberts, 393 S.C. at 349-50, 713 S.E.2d at 287 (holding an unexcused noncompliance with section 56-5-2953 mandates dismissal of a DUI charge).

The Court goes on to address Humble’s second argument on appeal, which was that the reasons that the officer provided in his supplemental testimony at trial (although the Court has already stated that supplemental testimony is insufficient – the reasons must be included in the affidavit, per the language of the statute) were insufficient anyway.  This part of the opinion highlights the importance of obtaining the maintenance records anytime that an officer submits an affidavit under 2953(B) – the City argued that, because the officer immediately reported the problems he was having with his video equipment, reasonable efforts had been made to maintain the equipment.  A review of the maintenance record, however, revealed that the City had contacted the manufacturer and noted that the equipment needed repairs, the City then did not get the repairs done because they didn’t want to pay for them:

To borrow a quote from Michel de Montaigne, we find that in its most basic sense, the municipal court merely found “saying is one thing and doing is another.”1 Quite simply, the statute requires reasonable efforts. The municipal court essentially found as a fact that saying something is broken while refusing to pay for a repair visit is not enough. The “reasonable efforts” language of the statute requires some “doing,” and refusing to pay for repair visits evades the intent of the statute and is not “doing” enough to constitute reasonable efforts to maintain the video equipment in an operable condition.

First – a statement of which reasonable efforts have been made must be contained in the officer’s affidavit, and the affidavit cannot be supplemented by testimony at trial.  Second – whenever an affidavit is submitted, get the maintenance records, rather than taking the officer’s word for it.  Whether the efforts made were in fact reasonable is a question for the Court.


Can I be charged with Driving Under Suspension if I never had a driver’s license?

In South Carolina, you can’t be convicted of driving under suspension if you never had a license in the first place – there is a separate statute that makes it a crime to drive without a license.

On Avvo’s neverending circus of wrong answers provided by out-of-state lawyers playing the Avvo contributor level video game, Illinois DUI lawyer Ted Harvatin not only gives the incorrect answer to the above question, but goes on to insult the asker with some nonsensical attempted wit:

As nice as it would be to get away with a crime simply by not having the necessary permission to be where you wanted to be.. just think you could trespass and while you were there you could murder someone and get away with it.

S.C. Code § 56-1-460 makes it a crime to drive on a public highway when your license has been cancelled, suspended, or revoked.  Of course, if you have never had a license, then you’ve never had a license be cancelled, suspended, or revoked.  S.C. Code § 56-1-20 prohibits driving when you do not have a license, and the punishment is provided in S.C. Code § 56-1-440 “penalties for driving without a license.”

It is a crime to drive either way, whether you have no license or you had a license which has been suspended, but the difference is in the punishment.  A conviction for DUS/ driving under suspension can carry a significant potential prison sentence – up to, on a 3rd offense when the license was suspended for DUI, a mandatory minimum of 6 months to 3 years in prison.  A conviction for DUS carries higher fine amounts and an additional suspension of the person’s license, which could complicate matters if a person has never had a license and wants to get one.

Driving without a license – DWOL or no SCDL – has significantly lower fine amounts and has no effect on a person’s ability to get a license down the road.

Amendments to S.C. Concealed Carry Law

Tuesday, February 11, 2014, the governor signed S.308, the Concealed Carry Reform Bill, which modifies our concealed carry statute to allow CWP holders to carry firearms in restaurants that serve alcohol, unless the establishment itself prohibits it.  The text of the Bill can be found here.

CWP holders still cannot drink alcohol while carrying, and further amendments include stiffer penalties for a person who illegally carries a gun into an establishment that sells alcohol – now a misdemeanor that carries up to two years imprisonment (illegally carrying a gun otherwise is a misdemeanor that carries up to one year in prison).

It also says that a person who is convicted of violating this section who has their CWP must have their CWP revoked for five years.  Of course, if you are convicted of a crime that potentially carries a year or more in prison, you’re not going to have a CWP anymore anyway, so I’m not sure what the point is.  If you are convicted of a violation, unless you later receive a pardon, your CWP is revoked forever, not just for five years.

Other amendments to the law make it easier for military personnel and retired law enforcement officers to obtain their permits, and, although it simplifies the renewal process, CWP’s now must be renewed after five years instead of ten.

The amendment to allow CWP holders to carry in restaurants brings South Carolina into line with most of the other states – it just doesn’t make sense to prevent a responsible CWP holder from carrying in restaurants when they are not drinking themselves, and this was an important fix in my opinion.


State v. Dykes – lifetime GPS monitoring is still unconstitutional

In State v. Dykes, decided May 22, 2013, the S.C. Supreme Court revisited it’s May 9 opinion, muddying the waters a bit more.  The Court now finds that the initial mandatory imposition of lifetime satellite monitoring under section 23-3-540(C) for CSC 1st degree and lewd act is constitutional, but that it is unconstitutional to impose lifetime GPS monitoring with no opportunity for judicial review.

The Court says that the requirement for GPS monitoring is not to punish sex offenders, but instead it is intended to protect the public from those sex offenders who may re-offend and to aid law enforcement in solving sex crimes.” State v. Walls, 348 S.C. 26, 31, 558 S.E.2d 524, 526 (2002). Thus, a likelihood of re-offending lies at the core of South Carolina’s civil statutory scheme.

For any offense, other than CSC 1st degree or lewd act, that requires sex offender registration, the court has discretion as to whether or not to also require GPS monitoring.  If the court orders the GPS monitoring, the offender can petition the court in 10 years to have the monitoring removed, upon a showing that the offender has complied with the monitoring requirements and that there is no longer a need to continue monitoring them. If the court denies the petition, the person may petition again every five years.

For a person convicted of CSC 1st degree or lewd act, however, there is no provision for judicial review and lifetime monitoring is mandatory.  The Court says this is wrong – a person’s risk of re-offending cannot be determined solely by the offense committed, and an offender should have the opportunity to present expert testimony that he or she poses a low risk of re-offending and therefore should be removed from the monitoring requirement.

The Court acknowledges that GPS monitoring is a significant restraint that amounts to a liberty interest – we are talking about forcing a person to wear a monitor strapped to their ankle, which chafes, can cause rashes and other discomfort, which tells the government their exact location within 15 meters 24 hours a day for the rest of their life.  As long as a person is monitored, they have to comply with all of the terms of electronic monitoring, report any damage to the device, pay for the costs of the monitoring (typically 70-80$ a week), ensure it stays charged every day, and any allegation that the person has tried to remove the device or failed to comply with the requirements can result in criminal charges.

If the likelihood of re-offending lies at the core of this “civil statutory scheme,” it makes no sense to say that it is constitutional to initially order lifetime GPS monitoring, regardless of a person’s likelihood to re-offend.  Wonderful, if we allow the offender to come back 10 years later and prove that they are not likely to re-offend, but if they are not likely to re-offend why order lifetime GPS monitoring to begin with?  It is arbitrary.  Period.

Further, how do we justify mandatory lifetime sex-offender registry without some finding of a person’s likelihood to re-offend?  In the May 9 opinion, the Court pointed out that the State, on appeal, argued that the sex-offender registry which makes the offender’s identity and location available not only to the government but to every person with the ability to look at a computer, is more invasive than GPS monitoring.  The registry provides the public with the offender’s full name, address, offense history, photograph, and physical description complete with a list of tattoos and scars.  It is unconstitutional to not permit review of GPS monitoring based on a person’s likelihood to re-offend, but it is constitutional to allow lifetime sex-offender registry without review, even though the government’s own position is that the registry is more invasive than the monitoring?

It is clearly arbitrary and serves no purpose to impose lifetime GPS monitoring or sex offender registry on those individuals who are not likely to re-offend.

The bottom line per the May 22 Dykes opinion is that there is no need to determine an offender’s likelihood to re-offend before imposing lifetime GPS monitoring following a conviction for CSC 1st degree or lewd act, but there must be a provision for re-evaluation at least after 10 years, and every 5 years thereafter.  If the legislature does not adopt a procedure for review of these offenders’ likelihood to re-offend, I think that offenders who qualify can and should begin filing petitions with the circuit courts asking for removal from the monitoring requirement.



Another Administrative Order that won’t be followed

On Monday, May 15, 2013, Chief Justice Toal issued a “365 Day Benchmark” Administrative Order, ordering that eighty percent of all criminal cases be disposed of within 365 days of the defendant’s arrest.  The other 20%, I assume are covered by ordering that “the circuit court may continue a criminal case beyond 365 days by written order if the court determines that exceptional circumstances exist in the case.”

The title of the blog post is rather blunt, but does anyone really expect that this Order will be followed?  It replaces Chief Justice Finney’s 1999 Order that stated “all criminal cases in the State of South Carolina shall be disposed of within 180 days from the date of the defendant’s arrest,” with the same provision for continuance by written order of a circuit court judge in exceptional circumstances.  I don’t know if anyone followed this Order in 1999, but in the past eight years I have not even heard of it, I have never seen a circuit court order continuing a case beyond the 180 day benchmark for exceptional circumstances, and any attorney can tell you that most cases today do not get resolved within 180 days.

Then, there was Chief Justice Toal’s February 2011 Administrative Order, ordering that all jury trials in the magistrate and municipal courts be disposed of within 120 days, with a companion Administrative Order in March 2011 specifically ordering that all DUI jury trials in the magistrate and municipal courts be disposed of within 120 days.  That shook things up a bit and got some press coverage, but after the Order was issued and still today, in most magistrate and municipal courts where I have cases, 120 days typically translates to approximately a year.

Then, following State v. Langford, on November 21, 2012, the S.C. Supreme Court issued the Uniform Differentiated Case Management Order (UDCMO), which was to take effect February 4, 2013,  outlining procedures that were to be followed statewide to enforce time limitations in a new court controlled docket management system, which included very specific procedural changes for bond hearings, “roll calls,” scheduling of plea and trial dates, and preliminary hearings.  Then, on December 20, 2012, the S.C. Supreme Court announced that the UDCMO would be held in abeyance while a committee was appointed to propose a plan for implementing the changes in the Order.

State v. Langford unequivocally states that South Carolina’s current docket system, which is controlled by the prosecuting attorneys, is unconstitutional.  So all defendants are currently being prosecuted in an unconstitutional court system, with no remedy that I can see, and no change anywhere as of yet.  I predict that the Chief Justice’s 365 Day Benchmark Order will be ignored, I predict there will not be written orders from our circuit court judges outlining the exceptional circumstances that justify continuances in 20% of criminal cases, and I predict that there will be no remedy for defendants.

UDCMO – motion hearings and other pre-trial matters

The Uniform Differentiated Case Management Order, discussed here, here, and here, has one more glaring omission – there is no mention of scheduling of motion hearings and other pre-trial matters, other than section (b) of the General Docket discussion which says “Nothing herein shall affect the Court’s ability to schedule motions or other pretrial proceedings as may be appropriate . . .,” and the mandate that circuit court judges will be available for status conferences which may be requested by either side.

Currently, the standard practice is to file your motions and serve them on the solicitor’s office.  The expectation is that the solicitor’s office will then schedule the hearing during the next term of court.  The reality is that motions for bond or motions to lift bench warrants are usually scheduled, and often other motions are ignored.  When motions are scheduled, they are scheduled when the prosecutor wants them to be scheduled if at all, and the prosecutor, by choosing the term of court, chooses the judge that hears the motion.

Pre-trial motions, which could be dispositive, are routinely heard the day of trial, even though it would save court time and preparation by both sides if they were heard in advance of trial, and sometimes could result in a resolution of the case.  It is not unusual for a case to be called for trial while there are outstanding motions to compel discovery – materials that are needed for effective trial preparation.  In some cases, motions for bond are ignored until the motion is copied to the chief administrative judge along with a record of unsuccessful attempts to get the solicitor’s office to schedule a hearing.

In Common Pleas Court or Family Court a motion is filed with the Clerk, and the Clerk schedules a hearing.  The system of allowing prosecutors to schedule hearings on motions is no different than a system that requires civil defense lawyers to file their motions, serve them on the plaintiff’s attorney, then allow the plaintiff’s attorney to schedule a hearing when they are ready and in front of the judge of their choosing.  This needs to be fixed as much as the trial docketing system needs to be fixed.

I propose that the Clerk of Court take over the scheduling of motion hearings, just as they do in every court but General Sessions.  This is a gap in the Supreme Court’s UDCMO that needs to be addressed.

UDCMO – questions, concerns, complaints

The Uniform Differentiated Case Management Order, following the S.C. Supreme Court’s landmark decision in Langford, leaves a lot of questions to be answered.  I think that this could and should be a huge leap forward for the State of South Carolina, and it was a long time coming.  I also think that it can and will work if everyone is on board, particularly our circuit court judges.  But, there are many questions to be answered and there will be a good deal of confusion going forward.

I don’t know, but it appears that neither the criminal defense bar, public defender association, nor the solicitors were consulted before the Order was drafted and signed.  What follows are some questions, concerns, and complaints, compiled from the criminal defense bar and from my own reading of the Order, that will need to be addressed:

1.     Initial Appearances and conflicts.  Under the current system in most circuits, Initial Appearances can be waived – because the primary concern is whether the defendant has representation and who the attorney is, we send a letter of representation along with a request to excuse the defendant from that particular appearance which is uniformly granted.

The Order says that there will be no continuances of the Initial Appearance.  Will it be possible to waive Initial Appearances, and how will the courts deal with this pronouncement?  Attorneys in private practice will often have conflicts that have to be resolved, where they have to be in federal court, or family court, or in court in another county, at the same time that a client’s Initial Appearance is scheduled.  Many attorneys, myself included, have cases in multiple counties across the state – will Initial Appearances in each county be scheduled on the same days, as currently they are mostly all held on Fridays?

A solemn pronouncement that “there will be no continuances” is not practical or possible – attorneys cannot be in two places at once.  There will have to be provision made for waivers of Initial Appearances or continuances when necessary.

2.     The Order states that the Solicitor will provide discovery to the defendant before the Initial Appearance – what is meant by discovery?  Solicitor’s offices statewide routinely provide only the most basic discovery in response to defense discovery requests – often nothing more than an incident report and NCIC on the defendant.  Sometimes there are investigative reports and witness statements, sometimes there is not.  In many counties, the discovery that is received is redacted, with the names and contact information for all witnesses including alleged victims blacked-out or otherwise removed.

In many cases, a decision cannot be made as to plea or trial and competent advice cannot be given until supplemental discovery requests are sent and sometimes a motion to compel has been heard.  It may be malpractice to plead a distribution case without first seeing the video or hearing the audio of the transactions the charge is based on.  The S.C. and U.S. Supreme Courts have held that it is ineffective assistance of counsel where defense counsel does not conduct an independent investigation of the facts – which is impossible to do when the prosecution has redacted all information about the potential witnesses in a case.  Dashcam videos must be obtained in traffic stops, but are rarely provided in initial discovery.  Discovery often references audio or videotaped interviews that are not provided along with the initial discovery.

Does “discovery” mean complete discovery, or does it mean a minimum such as an incident report and nothing else?  If an incident report is provided, but audio and videotaped evidence, unredacted witness statements, or dashcam videos are not, is the case to be administratively dismissed?

3.     When discovery is not provided before the Initial Appearance, the case is to be dismissed without prejudice by the judge, application must be made to the chief administrative judge, and “good cause” for the discovery violation must be shown before a new warrant can be issued.  Who is to monitor this process?  What is the remedy when a new warrant appears that is signed by someone other than the chief administrative judge? Is the defense not permitted to know what was said in that presumably ex parte proceeding?  What is “good cause?”

4.      The Order says that at the Second Appearance a plea date or a trial date will be set – this conflicts with the remainder of the Order which states that no trial date will be set until the Solicitor files a Notice of Court Docketing, after which the case is put on the trial roster by the Clerk of Court.

5.     Administrative dismissals, dismissals for discovery violations, and dismissals at preliminary hearings – there needs to be a standard procedure in place for bond issues when a case is dismissed without prejudice.  If the Order is followed, there will be, at least in the beginning, a large number of dismissals.  At preliminary hearings alone, officers often do not show up and do not have an excuse for not showing up, and these cases will be dismissed.  Once the case is dismissed, the solicitor’s office sends the case for indictment by the grand jury.

In most cases where this has happened in the past, we have been able to coordinate with the solicitor a court appearance where the indictment is served on the defendant and a consent bond order is signed, continuing the prior bond conditions.  Last year we had one case where the assistant solicitor ignored our communications about this and instead had the Horry County Police Department serve the indictment on the defendant, arresting him and putting him in jail until I was able to get into court and straighten it out.  This is a “loophole” where assistant solicitors, through negligence, incompetence, or maliciousness, can and do cause defendants to be re-arrested and incarcerated without any good cause.

6.     Preliminary hearings will be held at the Court which issued the charge – many counties have centralized preliminary hearing courts, where prelims from the various magistrate courts and the municipal courts are all heard at the same place and the same time.  Is it the intent of the Order to stop the use of central preliminary hearing courts like the one in Horry County, and require each court to hold their own preliminary hearings?

7.     What is the 180-day track?  Why call it a “180-day track” if there is nothing special about this time period or nothing that is to occur during the time period?  It is referenced throughout the Order but never defined.

8.     There may be conflicts between any any requirement for issues to be resolved at Initial Appearance or Second Appearance and an attorney’s constitutional and ethical duties – mental health issues, discovery issues, prosecutors withholding discovery at the time they are making plea offers at Second Appearances.  I think that these will be worked out in litigation, and the defense attorney needs to make a record at each appearance in court and through written motions when these issues arise.

9.     Members of the private criminal defense bar who accept representation on payment plans are concerned that they will not get paid by the time a case is resolved – personally I don’t think this should be a concern of the court, but I do acknowledge that these attorneys provide a valuable service for those clients who cannot afford to pay an attorney up front.  My advice to private criminal defense attorneys is to get paid up front or negotiate shorter payment plans; regardless, these defendants may swell the ranks of public defender clients.

10.     Concerns have been expressed that this is a “one size fits all” solution, without regard to the very real differences between the different circuits – some circuits have a huge number of warrants daily, whereas others have much lower numbers of cases.  Some circuits have court every week or every other week, where others like Marion County have one term every 3 months.  My opinion is that the system laid out in the Order should work in every circuit, although there will be differences in the case loads, and the day to day operations.  The larger counties will need to implement different procedures to carry out the Order than the smaller counties.  The problems in Marion County, where it is the norm for a case to sit for 3-4 years without being called for trial, will only be solved by more court time – and in my opinion can only be improved by following the requirements in the Order.

11.  Concern has been expressed that there is no mention of juvenile cases in the order – juvenile cases are handled in the Family Court.  I don’t handle many juvenile cases, so I have no idea if the Family Court juvenile docket has the same problems.  I am concerned that juveniles are not afforded the same protections that adult defendants are, but this is nothing new in a system where juveniles are not even given the right to a jury trial.  The juvenile system needs reform, but clearly this Order was not intended to address the problems in the juvenile system.

12.     Court rules will need to be changed to incorporate this order, as many of the provisions are in conflict.  Legislation should be drafted that tracks the language of the order and addresses the gaps in the order.

If anyone has additional concerns or questions, feel free to leave them in the comment section.



Uniform Differentiated Case Management Order

Following the release of State v. Langford, the S.C. Supreme Court published a new administrative order, effective February 4, 2013, which incorporates the order that was attached to the Langford opinion but is much more detailed, outlining procedures that are to be followed statewide and including procedural changes for bond hearings, “roll calls,” scheduling of plea and trial dates, and preliminary hearings:

IT IS ORDERED that all General Sessions cases shall be processed under the procedures set forth in this order.  This Uniform Differentiated Case Management Order supplements the Disposition of Cases in General Sessions Order dated November 21, 2012, and supersedes all previous Administrative Orders implementing Differentiated Case Management in each county.  This Order shall be effective February 4, 2013.

Bond hearings:  no changes here, at least for Horry County.  Defendants must be screened for the public defender by the magistrate or municipal judge at their bond hearing.  Defendants are given a date for their Initial Appearance at the bond hearing, and attendance at the Initial Appearance is a condition of their bond.  Defendants are informed of their right to a preliminary hearing.

Initial Appearance:

  • Initial Appearances will be presided over by a judge – this is a significant change for some counties, including Horry and Georgetown.  Previously, no judge was present at roll calls in many counties.
  •  The preliminary hearing must be requested in writing on or before the Initial Appearance – the current rule, under S.C. Rules of Criminal Procedure 2(b), is that a preliminary hearing must be requested within 10 days of the arrest – in many cases 10 days has gone by before a defendant is able to retain an attorney, and the 15th circuit public defender’s office categorically refuses to request preliminary hearings (or attend them when the client requests it).
  • A number of issues are listed that are to be addressed at the Initial Appearance, including representation, mental health issues, discovery, and conflicts.
  • At the Initial Appearance all cases will be assigned to a “180 day track.”  I am confused about what exactly the “180 day track” is, other than if a case is older than one year beyond the 180 day track (18 months old) it can be transferred from the Solicitor’s control to the “judicial docket” supervised by the Chief Administrative Judge (see below).

Discovery violations:

  • The order states that the Solicitor will provide discovery to the defendant no later than the Initial Appearance, and law enforcement is to provide discovery materials to the Solicitor no later than 15 days prior to the Initial Appearance.
  • If law enforcement fails to provide discovery within the deadline, the warrant may be dismissed without prejudice by the judge
  • Before a new warrant can be issued, application must be made to the Chief Administrative Judge, and the requesting law enforcement agency must establish good cause for its failure to timely transmit discovery – “[f]ailure to present good cause will result in the refusal to issue the second warrant.”  The Order does not require a hearing – my question is, how is the defense to monitor this process and know that these requirements are being followed?  Also, what is “good cause?”  Is it assuming too much to believe that “we were busy and did not get around to it,” or “I forgot” is not good cause?

Second Appearance:

  • The Second Appearance is to operate as an arraignment – “[a]t the Second Appearance the court will inquire whether a matter is for plea or for trial,” and at the Second Appearance either a plea date or a trial date will be set.  This contradicts subsection D of the Order, which says a trial date is not set until the Solicitor files a “Notice of Court Docketing” and that cases more than 18 months old are transferred to the judicial docket.  I predict this bit about setting trial dates at the Second Appearance will be ignored or will result in the setting of trial dates that are then ignored.
  • Plea offers must be communicated in writing at least 14 days prior to the Second Appearance and accepted or rejected by the defendant in writing prior to the Second Appearance; or the Solicitor’s decision not to extend a plea offer must be communicated in writing 14 days prior to the Second Appearance.
  • Defendants who do not have attorneys must appear at the Second Appearance and remain throughout each term of court until excused by the Court.
  • Sentencing sheets and plea affidavits must be completed and filled out before the plea date.  I have no idea what the Court means by “plea affidavit.”  Assuming this is something new that is to be implemented?

Preliminary hearings:

  • Prelims will be held at the Court which issued the charge.  Does this do away with Central Preliminary Hearing Courts?  In some counties, including Horry County, all prelims from all courts (including municipal courts) are heard by a magistrate judge at a central location.
  • Continuances of preliminary hearings may be granted only in extreme circumstances.   A common occurrence at preliminary hearings is the officer does not show up – notice was sent but the officer simply fails to appear without any explanation, and the magistrate will then continue the case at the prosecutor’s request.  When the prelim is rescheduled, it happens again until the case is indicted and the defendant no longer has the right to a prelim.  Not showing up with no explanation is not an “extreme circumstance.”
  • The Court next clarifies the remedy where the officer fails to appear without explanation – “the failure of that affiant to appear and give testimony after notice, will result in the dismissal of the warrant upon motion for dismissal by the Defendant or defense counsel.”

The Court Docket:

  • Each term of court the presiding judges will make themselves available from 9:00 – 9:30 am for status conferences which either side can request.
  • all cases that are 18 months old or less (the 180 day track plus one year) remain under the control of the Solicitor.  When the Solicitor is ready to try the case, they will file a “Notice of Court Docketing” and serve it on all parties.  All cases on the Court Docket may be called for trial any time after 30 days from the filing of the Notice of Court Docketing.
  • The Clerk will publish a trial roster at least 21 days before each term of court, publish the roster, and distribute the roster to the attorneys who are on it.
  • The Order says “[n]othing herein shall affect the Court’s ability to schedule motions or other pretrial proceedings as may be appropriate” – so, who schedules motions and pre-trial proceedings?  The clerk, the chief admin judge, or the prosecutor?
  • The chief admin judge may add cases to the trial roster or schedule cases for a date certain, subject to the above notice requirements.

The Judicial Docket:

  • Cases more than 18 months old (180 day track plus one year) are transferred to the chief admin judge’s supervision, if the Solicitor has not filed a Notice of Court Docketing.
  • The Clerk will maintain the Judicial Docket separately from the Court Docket, and it will be supervised by the chief admin judge.
  • The chief admin judge will arrange for the scheduling of trial or other disposition of the case and “may upon the request of either party transfer the case to the trial roster.”
  • If a case is on the Judicial Docket for more than one year (2 and 1/2 years old at this point) the chief admin judge “will dismiss the case,” absent the Solicitor showing good cause, after notice to both sides and an opportunity to be heard.
  • Any case pending more than 4 years after indictment “shall be dismissed” by the chief admin judge, unless the Solicitor shows good cause why it should not be dismissed.  The Solicitor must notify any victims within 10 days, file a written response as to why the case should not be dismissed within 30 days,  and the Defendant may respond within 30 days.  The chief admin judge may schedule a hearing or may dismiss the case without a hearing.
  • Both of the above dismissals are without prejudice and may be re-presented to the Grand Jury for indictment unless the chief admin judge specifies otherwise.

Failure to Appear Docket:

  • 90 days after a bench warrant is issued for failure to appear, the case will be transferred to a Failure to Appear Docket .
  • The case can be restored to active status upon written request of the Solicitor to the Clerk of Court.

DUS – type of notice required

There are basically three elements to driving under suspension that must be proven – 1) the person was driving; 2) the person’s license was under suspension; and 3) proper notice was given to the person.

Notice of suspension must be given in one of two ways, and it depends on what the suspension is for – in most cases, notice of suspension can be mailed to the driver by U.S. mail, and a certificate from the director of the department is sufficient proof at trial that the notice was mailed.  But, where the suspension is 1) an additional suspension for a driving under suspension conviction; or 2) for loss of points, the notice must be sent certified mail, return receipt requested.  A failure of proof of either at trial should result in a directed verdict of acquittal.

This is laid out in the following statutes:

  • 56-1-350  in all cases of suspension, notice must be mailed as required by 56-1-360 (U.S. mail/ certificate by director of the department serves as proof); unless there is an exception.
  • 56-1-360  notice of suspension is sufficient if it is mailed to the driver at the address contained in drivers license records; certificate by director of the department is sufficient.
  • 56-1-460  driving under suspension statute – license is suspended upon conviction.
  • 56-1-465  if license is suspended for a conviction for driving under suspension (56-1-460), notice is the same as is required when the license is suspended due to loss of points as provided in Section 56-1-810.
  • 56-1-810  if license is suspended due to loss of points, notice must be sent certified mail, return receipt requested.

I have found one appellate opinion that is directly on point, and it quotes extensively from a 1991 attorney general opinion.  State v. Smith is a 1998 S.C. Court of Appeals opinion that details the above statutes and when they apply.  Notice of suspension is required to be sent U.S. mail as per 56-1-360 unless there is an exception.  Exceptions include suspension due to loss of points per 56-1-810 and suspension due to conviction for driving under suspension per 56-1-465, in which case notice must be sent certified mail, return receipt requested.

Smith was charged with driving under suspension, and notice was mailed to him per 56-1-360.  His license was suspended for failure to comply with financial responsibility laws, not for a prior driving under suspension, so the Court holds that notice was proper under 56-1-360.  Whether notice should be given under 56-1-360 or 56-1-810 is determined by what the license was suspended for, not by what the person is currently charged with.

When the suspension was for anything other than DUS or loss of points, a certificate from the director certifying that notice was sent U.S. mail must be entered into evidence, but when the suspension was for DUS or loss of points, the return receipt showing that notice was sent certified mail must be entered into evidence, failing which the court must direct a verdict of not guilty at the close of the State’s evidence.