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.