Is DUI a Felony or a Misdemeanor in SC?

by admin in DUI Defense. Posted April 22, 2022

Is DUI classified as a felony or a misdemeanor offense in SC?

It depends on whether anyone was seriously injured or killed in the incident and the number of prior convictions a person has for driving under the influence (DUI) or driving with an unlawful alcohol concentration (DUAC).

In this article, I’ll explain what makes a DUI a felony under SC law, including:

The difference between “felony DUI” and a DUI that is classified as a felony,
When an ordinary DUI offense becomes a felony, and
The elements of “felony DUI,” which is a separate offense than DUI or DUAC 1^st, 2^nd, 3^rd, 4^th, or subsequent.

DUI/ Driving Under the Influence 1^st, 2^nd, and 3^rd offenses are Misdemeanors in SC

DUI 1^st, 2^nd, and 3^rd offenses are misdemeanors in SC. How do we know?

SC Code § 56-5-2930 contains the elements that must be proven to get a DUI conviction and the penalties for driving under the influence in SC, but, unlike many SC criminal statutes, it does not specify whether a DUI conviction is classified as a felony or misdemeanor.

SC Code Section 56-5-6190, however, says that “it is a misdemeanor for any person to violate any of the provisions of this chapter unless such violation is by this chapter or other law of this State declared to be a felony.”

By “this chapter” they mean Chapter 5 of Title 56, “Uniform Act Regulating Traffic on Highways,” which includes SC’s DUI laws. If you read Chapter 5 carefully (or use control F to search for key terms like felony and misdemeanor), you will see that it does not say driving under the influence or driving with an unlawful alcohol concentration is a felony offense.

DUI is referenced elsewhere in SC law, though.

We know that DUI 1^st offense is a misdemeanor because SC Code § 16-1-10(C) states that “[a]ll offenses with a term of imprisonment of less than one year are misdemeanors,” and DUI or DUAC 1^st offense has a maximum penalty of 90 days in jail.

We know that DUI 2^nd offense is a misdemeanor because SC Code § 16-1-100(C) specifically says that DUI 2^nd offense is a Class C misdemeanor:

(C) The following offenses are Class C misdemeanors and the maximum terms established for a Class C misdemeanor, not more than one year, as set forth in Section 16-1-20(A), apply:

… Unlawful for narcotic users or persons under influence of liquor, drugs or like substances to drive (See Section 56-5-2940(2))-Second offense 56-5-2933 Driving with an unlawful alcohol concentration, second offense..

And we know that DUI 3^rd offense is a misdemeanor because SC Code § 16-1-100(A) specifically says that DUI 3^rd offense is a Class A misdemeanor:

(A) The following offenses are Class A misdemeanors and the maximum terms established for a Class A misdemeanor, not more than three years, as set forth in Section 16-1-20(A), apply:

…56-5-2930 Unlawful for persons to drive under influence of liquor, drugs, or like substances (See Section 56-5-2940(3))-Third offense 56-5-2933 Driving with an unlawful alcohol concentration, third offense…

What if this is your fourth DUI charge?

DUI 4^th Offense or Greater is a Felony in SC

DUI 4^th or subsequent is a felony offense in SC because SC Code § 16-1-90(F) specifically says that DUI or DUAC 4^th or subsequent is a Class F felony:

…(F) The following offenses are Class F felonies and the maximum terms established for a Class F felony, not more than five years, as set forth in Section 16-1-20(A), apply:

… results 56-5-2930 Driving under influence of liquor, drugs, or like substances unlawful (See Section 56-5-2940(4)) 56-5-2933 Driving with an unlawful alcohol concentration, fourth or subsequent offense 56-5-4975(B)…

Note that § 16-1-90(F) also specifies that the maximum term of imprisonment for a Class F felony applies – five years, but § 56-5-2930 says that the maximum term of imprisonment for DUI 4^th or subsequent offense is seven years. Any conflict in the statutes must be construed in favor of the defendant, so the maximum potential punishment for DUI 4^th or subsequent is five years and not seven.

Although DUI 4^th or subsequent is classified as a felony offense, it is not the same as a “felony DUI.” The elements that must be proven for a DUI 4^th offense, apart from having three or more prior convictions for DUI or DUAC, are the same as the elements that must be proven for a first-offense DUI charge.

“Felony DUI” is a separate and distinct criminal offense, with different elements that must be proven.

“Felony DUI” is a Different Charge than a DUI that is a Felony

“Felony DUI” has different elements than driving under the influence – the State must prove different things to get a conviction. They must prove:

The person was driving,
They were under the influence while driving, and
Another person was killed or suffered great bodily injury because of the defendant’s negligence.

Felony DUI Resulting in Great Bodily Injury

When a felony DUI results in great bodily injury, the potential consequences of a conviction include:

A mandatory fine of not less than $5,100 nor more than $10,100, and
Mandatory imprisonment for not less than 30 days nor more than 15 years.

Felony DUI Resulting in Death

When a felony DUI results in another person’s death, the potential consequences of a conviction include:

A mandatory fine of not less than $10,100.00 nor more than $25,100.00 and
Mandatory imprisonment for not less than 1 year nor more than 25 years.

DUI Defense Lawyers in Conway, SC

If you have been charged with DUI or DUAC in Myrtle Beach, Conway, or anywhere in the Horry County area, you may have valid defenses to the charge or there may be grounds to get your case dismissed.

Contact DUI Defense Lawyer Johnny Gardner now at (843) 248-7135 for a free consultation to find out how we can help.