For any Charleston DUI lawyer, defending a felony DUI is much more challenging, and the stakes are higher, than defending a municipal or magistrate level DUI such as a DUI 1st. Essentially, a felony DUI the bodily injury or the death of another person. Therefore, a felony DUI differs from a DUI in both the proof of the offense and the penalties for a conviction.

What does the prosecution have to prove in a felony DUI?

For a DUI case, the prosecution must prove that a person drove while under the influence of alcohol, drugs, or both, “to the extent that the person’s faculties to drive a motor vehicle are materially and appreciably impaired.” For a felony DUI, the prosecution must prove: (1) a person was driving under the influence of alcohol, drugs, or both; (2) while driving the person did “any act forbidden by law or neglects any duty imposed by law in the driving of the motor vehicle;” and (3) the act or neglect caused great bodily injury or death to a person other than the driver.

According to South Carolina case-law, the consumption of alcohol doesn’t have to be the “main” or “primary” cause of injury or death, so long as it contributed to the accident. So if you are sitting at a stop light within your lane, and a person slams into the back of you and gets seriously hurt, this may not result in a felony DUI conviction, although you could be charged with simple DUI. Even if the person injured was drinking with you and chose to be a passenger in your car, you can be charged with felony DUI.

Our law defines “great bodily injury” as “bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” So it may not take much for a DUI crash to result in a felony DUI charge. For example, if the person injured has a broken arm placed in a cast, the prosecutor can argue that the 8 weeks in the cast is enough to be a “protracted loss or impairment of the function of a bodily member.”

What are the penalties for a felony DUI in South Carolina?

In cases where there is great bodily injury, the driver faces between 30 days to 15 years in jail and a fine of $5,100 to $10,100. In the case of death, the jail sentence is between one to 25 years and the fine is between $10,100 to $25,100. These jail requirements are mandatory and cannot be suspended or substituted for probation.

Anyone convicted of a felony DUI is likely to spend significant time in jail. Many of these cases make the local headlines, and we keep our eye on what the judges are doing at the sentencing phases of these types of cases. Here are some examples:

  • In June 2014, a woman was sentenced in Charleston County to 17 years after her car crossed the center line, hit oncoming traffic, and killed the other driver.
  • In April 2013, an 85-year old man was sentenced in Charleston County to one year after he ran into a motorcycle and caused multiple pelvic fractures of the motorcycle driver. The man’s blood alcohol content (“BAC”) was 0.13 which is in the middle of 3 tiers of intoxication under our law. The man assisted the other driver financially while he recovered. This voluntary assistance likely helped the judge accept the lower-than-usual sentence.
  • In November 2013, a man was sentenced to 10 years, suspended on service of 3 years in jail and 5 years probation, after he killed a man on a moped. His BAC was 0.12, which a male can reach on just 3 or 4 beers in some cases. He was charged with felony DUI but pled to reckless homicide instead.
  • In March 2014, a man was sentenced to 10 years after he ran into the back of a car on the Cooper River Bridge and killed the other driver. He was charged with felony DUI but pled to reckless homicide.
  • In August 2012, a 20-year old woman was sentenced to 8 years after killing a man on a motorcycle who was not wearing his helmet.

These are just a few examples of how drinking and driving can turn someone’s life upside down in a matter of seconds. For example. if you are driving home after 3 beers and you injured a person who stepped out into the road in front of you, it is possible that you could face serious jail time.

What happens to a person’s driver’s license if convicted of a felony DUI?

Once a person has finished their jail sentence, the person’s driver’s license is suspended for 3 years (if great bodily injury) or 5 years (if death).

Can someone charged with a felony DUI refuse to give a breath sample?

Technically yes, but then the police will take you to the hospital and have your blood drawn. The law says you can’t refuse to give this sample, but if you become so obstructive that it is impossible to draw blood, then that resistance will come in at trial. Giving a breath sample has its advantages because we may be able to show errors in the testing process or problems with the machine. It is harder to fight a blood draw, but sometimes we can find a problem such as with the chain of custody.

How much will bail be to get out of jail if a person is charged with a felony DUI?

It all depends on the facts of the case, the person, and who the bond judge is. The 20-year old woman we described above had a bail of $250,000. We have seen them as low as $50,000. Because these two extremes will cost a difference of $20,000 in bondsman fees, it is important to have your lawyer on board as soon as possible. For more information, please read our article on bond hearings in South Carolina.

What are the strategies in defending a felony DUI?

In some regards, defending a felony DUI is similar to defending a municipal or magistrate level DUI. We still fight the admission into evidence of the breath or blood sample, and we attack the field sobriety tests just as we would in a normal DUI. However, in a felony DUI case, we get into the medical records to try to show that the drunk driving did not cause enough of an injury. Also, the prosecutors are more likely to seek other evidence in a felony DUI case. They try hard to find other witnesses who can testify to impaired driving. They are more likely to subpoena your credit card statement to look for charges made at bars or restaurants. Law enforcement will search your vehicle for bar receipts or other evidence of drinking. In every felony DUI case we also have to deal with the victim or the victim’s family who often want justice. The list goes on. What we can promise is that we will fight the case early on from angle we can. The more we can challenge the prosecution’s case, the better deal we may be able to bring to our client. For example, in one of our felony DUI cases, the officer failed to give our client his Miranda warnings after our client was arrested. Based on this failure, our client was offered a plea to reckless driving. Ultimately, it will be your decision whether to accept any plea offer or to take the case to trial.

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Charleston Felony DUI Defense Attorney

If you are charged with felony DUI in Charleston or the Lowcountry, contact a lawyer from Futeral & Nelson to discuss your rights.

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