Criminal and DUI Defense Lawyers in Charleston, SC

As many pet owners can attest to, their animals are like members of their family. According to a Harris Poll conducted in 2011, more than three in five Americans (62%) have a pet. Among pet owners, seven in ten have a dog (69%) and half have a cat (51%). Over nine in ten pet owners (91%) say they consider their pet to be a member of their family. Over half of pet owners (57%) say they frequently let their pet sleep in the bed. Pets also get presents. One-third of pet owners (33%) frequently purchase holiday presents for their pet, while one-quarter (27%) occasionally do so. One in five pet owners (20%) frequently buy their pets birthday presents and while 17% do so occasionally.

With so many pets in our cities and counties, there are many laws addressing these pets ranging from licensing laws, leash laws, and prohibitions against owning certain pets in city limits, such as pigs, that may be considered livestock. Importantly, there are criminal laws regarding pets that injure another animal or a person.

In South Carolina, there are state, county, and municipal laws that criminalize the ownership of a “vicious” animal. The biggest challenge in defending a pet owner faced with a “vicious” animal charge is the very definition of the term “vicious.” Common dictionary terms are little help because they include such definitions such as “grossly immoral,” “depraved,” “evil,” “spiteful,” and “malicious.” Pets are not people, and as much as we tend to anthropomorphize our pets’ behaviors (happy, sad, mischievous, etc.), they are still animals that are driven to act out of basic instincts concerning fear, food, and safety.

Unfortunately, many criminal laws concerning “vicious” animals do little to clarify for the accused, the judge, or the jury the meaning of the term “vicious.” South Carolina’s state statute, Sec. 47-3-10(7), defines a “vicious” dog as “any dog evidencing an abnormal inclination to attack persons or animals without provocation.” On the one hand, our state’s statute offers some guidance by suggesting that a dog that is provoked into an attack may not be considered vicious. On the other hand, our state’s statute offers no clarity as to what constitutes an “abnormal inclination to attack.” Reasonable persons may differ as to what is normal vs. abnormal behavior for any dog. For example, a dog that is sweet and tender with adults, children, and other animals may still act aggressively if anyone attempts to take away the dog’s food. As another example, a dog that has never shown any tendency towards aggressive behavior may attack another animal if the dog feels threatened or cornered.

Charleston County Code Sec. 3-1 defines a “dangerous animal” as an animal “which the owner knows or reasonable should know has a propensity, tendency, or disposition to attack unprovoked . . . .” Like our state’s statute, Charleston County’s Code recognizes that an animal may be provoked into an attack, but is otherwise not a dangerous animal.

However, some laws offer little to no guidance as to what constitutes a “vicious” dog or animal. For example, in the City of Charleston, South Carolina, Municipal Code Sec. 5-19 makes it unlawful “for any person to own, keep, have charge of, shelter, feed, harbor or take care of any vicious animal within the city limits.” Unlike South Carolina’s state statute, or Charleston County’s Ordinance, Charleston’s Municipal Code does not define the term “vicious.” Also, Charleston’s Municipal Code does not recognize that an otherwise docile animal may be provoked into an attack.

In South Carolina, procedural due process requires fair notice to the accused and proper standards for adjudication. Specifically, the provisions of a criminal statute must be “sufficiently definite to give reasonable notice of the prohibited conduct to those who wish to avoid its penalties and to apprise Judge and jury of standards for the determination of guilt.” Because the Charleston Municipal Code is vague and does not define the term “vicious,” the ordinance may be unconstitutional.

In South Carolina, one of the responsibilities of the Department of Natural Resources (DNR) is to enforce boating under the influence laws. Part of their training is derived from standards set forth by the National Association of State Boating Law Administrators (NASBLA). Due to the difficulty in administering standard field sobriety testing on the water, certain agencies such as DNR administer what is called the Afloat Test Battery, which includes reciting the ABC’s, counting backwards from 25 to 1, a finger dexterity test, a “palm pat” test, and a “touch finger to nose” test.

Unlike driving under the influence (DUI), the BUI laws do not require the arresting officer to video tape the suspect, so it can be more difficult to defend an innocent person charged with BUI because evidence is often limited to the officer’s testimony of the events, which may or may not be accurate and is always biased because the officer is attempting to obtain a conviction. Merely allowing a client to give a different story may not be enough in a jury’s eyes. Therefore, it is important for your lawyer to be familiar with the Afloat Test Battery to successfully attack the administration and results of the FST’s administered on the water. Oftentimes, the officer makes many mistakes which compromise the validity of the tests.

Challenging the validity of field sobriety testing is one of many, yet crucial, elements in competently defending DUI’s and BUI’s.

On March 21, 2011, Chief Justice Toal of the South Carolina Supreme Court ordered nearly every Municipal and Magistrate Court in South Carolina to dispose of and set for trial all pending driving under the influence (DUI) and driving with an unlawful alcohol concentration (DUAC) cases within 120 days. This order also applies to DUI and DUAC cases before Charleston, Berkeley, and Dorchester County Magistrates and to the municipalities of Charleston, Mount Pleasant, North Charleston, Goose Creek, Hanahan, Folly Beach, Sullivan’s Island, Isle of Palms, and Summerville.

The Supreme Court has also asked the family courts and circuit courts to be more lenient in granting continuances to DUI defense lawyers to allow them to be more available to the municipal and magistrate courts for DUI cases. The Supreme Court has also requested that DUI lawyers to make every effort to honor required court appearances to assist in the backlog of DUI and DUAC cases.

Our attorneys at Futeral & Nelson are closely monitoring the impact this 120 day deadline is having on all DUI and DUAC cases, and we are working swiftly on negotiations and trial preparations to defend our clients.

In April 2011, South Carolina passed a bill that changed our law that imposing a driver’s license suspension for convictions involving controlled substances. If a person was arrested prior to April 12, 2011 for criminal charges such as simple possession of marijuana and is later found guilty, then the person’s driver’s license will be suspended for six months under the old law. However, if the arrest occurs on or after April 12, 2011, then the person’s driver’s license will not be suspended even if the person is found guilty. The newer law includes other charges such as simple possession, distribution, and possession with intent to distribute substances such as marijuana, cocaine, and heroin.

In South Carolina, if a person is arrested for driving under the influence (DUI), law enforcement can request that the subject provide a breath sample to measure blood alcohol content. Oftentimes, subjects refuse to provide a breath sample (refuse to blow) because they do not want to provide further evidence to the police, because they question the reliability of the machine, or for a number of other reasons. As a consequence of refusing to provide this breath sample, the subject’s driving privileges can be suspended for 6 months and the subject can be required to enroll in the Alcohol and Drug Safety Action Program (ADSAP) before being issued a driver’s license. However, the driver can challenge these penalties by requesting an administrative hearing.

Recently, one of our clients was facing a suspension for refusal to blow. However, the administrative hearing officer decided there would be no suspension because the arresting officer did not accurately advise the our client of the consequences of providing a breath sample or refusing to do so. In another case involving one of our clients, the South Carolina Court of Appeals determined that our client’s driving privileges could not be suspended because the police did not prove that the client had been properly advised of their rights to take the breath test or refuse it.

Under South Carolina’s Habitual Offender Law, 56-1-1020, a person who has been convicted of committing three described offenses within a three year period is a habitual offender. Habitual offenders lose their driver’s license for at least two years. One the six offenses listed in the habitual offender statute is “operating or attempting to operate a motor vehicle while under the influence of intoxicating liquors, narcotics, or drugs”, otherwise known as DUI.  Under the DUI statute, 56-5-2930, a driver is “under the influence” when the driver’s faculties are “materially and appreciably impaired”.

Recently, the South Carolina Supreme Court decided that Driving with an Unlawful Alcohol Concentration, or DUAC, is implicitly part of the habitual offender statute even though DUAC is not listed. The DUAC statute, 56-5-2933, states that it is “unlawful for a person to drive a motor vehicle within this State while his blood alcohol concentration is eight-hundredths of one percent or more”. A driver may be guilty of DUAC regardless of whether the driver’s faculties are “materially and appreciably impaired”. Obviously, DUAC is not the same as DUI. Nevertheless, South Carolina’s Supreme Court decided that a blood alcohol level of .08 is basically the same thing as being “under the influence” regardless of the level of impairment, and therefore DUAC counts toward whether a driver is considered a habitual offender.

In a fair criminal trial, the jury only considers the facts of the case, and it should not base its decision on passion or prejudice. So, when representing a client facing criminal charges at trial, it is important that the defense attorney object to any inflammatory comments made by the prosecution to the jury.  In a recent case, the South Carolina Supreme Court reversed a death sentence against a murder convict because the defense lawyer did not object to the prosecutor’s comments that the Muslim defendant was a “domestic terrorist”. The Supreme Court found that the prosecutor’s comments “improperly evoked religious prejudice and, thus, served only to inflame the passions and prejudice of the jury.”