Can I get my DUI expunged?

Posted on February 20, 2012 by Steve

One of the most common questions or requests that I hear on a misdemeanor-DUI arrest in South Carolina is “Can I get my DUI expunged?” 

I am going to break this answer down into three categories.  But first, a little background information: an “expungement” is a court order that commands for the arrest an booking record, files, mug shots and fingerprints from a DUI arrest be destroyed and that no evidence whatsoever of the arrest record be retained by any municipal, county or state law enforcement agency.  In other words, an expungement is a command that all information from a person’s arrest be destroyed and removed from all record keeping agencies.  Ultimately, the order will be circulated through the state law enforcement division (SLED) and the FBI.  It is a simple but lengthy process.  The “expungement order” is originally generated by the prosecutor’s office, then sent to two separate judicial offices, and then circulated among the appropriate law enforcement agencies.  It typically takes around six months to completely make the rounds and have all of the arrest information eliminated. 

Now, back to the three categories of information that apply to a misdemeanor DUI arrest and/or a felony DUI arrest:

  1. A person was arrested and convicted of DUI in South Carolina – This never comes off of your record.  A conviction for DUI will be a permanent part of the driver’s NCIC and state criminal record forever.  It will remain on the person’s driving record for 10 years.  No exceptions.
  2. A person was arrested and the DUI was dismissed – Huge difference.  This person is eligible upon formal dismissal of the DUI charge for an “expungement order” as outlined above. 
  3. A person arrested for DUI and found not guilty at trial – This person is also eligible for all information associated with their DUI arrest to be expunged. 

Below, and for your convenience, please find the following links for the primary expungement statute in South Carolina, along with the expungement application and expungment order currently in use in Greenville County.

For some interesting reading regarding the current nationwide debate over a similar topic (the gathering of individual DNA through cheek swabs and blood samples) for all individuals arrested by law enforcement, see an article from the Wall Street Journal which ran on August 11, 2011. 

Section 17-1-40

Order for Destruction of Arrest Records

Wall Street Journal Article

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DUI Conviction often leads to increased car insurance premiums for 10 years

Posted on February 16, 2012 by Steve

The cost of a DUI conviction can be very high, as convicted drunk drivers generally face possible jail time, a suspended license, mandatory alcohol counseling courses and large fines and court costs.  The cost of a DUI conviction, however, often extends beyond these losses. 

For example, most drivers convicted for a DUI find that their insurance premiums rise dramatically.  A recent report from Fox Business News found that insurance premiums for drivers with a DUI on their record would rise anywhere from 30 to 100 percent. 

Several state-by-state examples would include Colorado where rates jump by 30 percent, while North Carolina drivers face a potential astronomical hike of 340 percent per year over their previous car insurance bill.  A lot of insurance companies may drop DUI customers all together. 

Many states, including South Carolina, keep DUI convictions on a driver’s record for 10 years.  In California, drivers are prevented from receiving any type of safe driver discount for at least 10 years after a drunk driving conviction. 

But remember, an arrest is not a conviction.  A DUI arrest without a DUI conviction can be expunged and permanently deleted from your record.  Generally, if you’re able to defeat a drunk driving or DUI charge, your insurance company will never learn about the incident and your insurance premiums will stay put. 

Additional collateral consequences of a DUI/drunk driving conviction in South Carolina that a driver needs to consider, include, but are not limited to, the following:

  • A permanent criminal record
  • Jail time
  • Heavy fines
  • Extensive community service
  • Losing your job, especially if you have a commercial driver’s license (CDL) or operate a company vehicle
  • Losing educational scholarships
  • Increased car/health insurance
  • Inability to enter secure facilities such as airports or federal buildings
  • Losing your right to enter some foreign countries (including Canada)
  • Electronic monitoring
  • Mandatory court supervised ignition interlock devices
  • Court ordered treatment

 South Carolina DUI Lawyer Steve Sumner exclusively handles misdemeanor and felony DUI defense; and administrative license revocations.  He represents clients in Greenville, Spartanburg, Anderson, Oconee and Laurens counties.  You can contact him at upstatedui.com or 864-235-3834.  His office is located at 1088 N. Church Street, Greenville, SC 29601.

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Hot Topics in Drunk Driving Cases (Part 2 of 2)

Posted on February 13, 2012 by Steve

As of the end of 2011 two “hot topic” issues in the field of drunk driving cases have emerged. 

2.    The requirement of ignition interlock devices for first time offenders. 

One of MADD’s (Mothers Against Drunk Driving) nationwide legislative priorities is mandating the requirement of “ignition interlock devices” (in-car breathalyzers) on the vehicles of drivers convicted of DUI.  MADD supports a legalized requirement of in-car breathalyzers, which would require all convicted drunk drivers to prove they have consumed no alcohol before their car would start.  If the driver has any measurable amount of alcohol in their system, the vehicle will not start.  MADD believes that this is a simple and economic way to make sure that all previous offenders (even first time offenders) can drive to and from work, but that they cannot drive drunk.  MADD unequivocally believes that in-car breathalyzers should be mandated on all previous DUI offenders.  

Currently, forty-nine states have mandated in-car breathalyzers to some degree on repeat DUI offenders.  Twelve states require ignition interlock devices on first time offenders.

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Hot Topics in Drunk Driving Cases (Part 1 of 2)

Posted on February 9, 2012 by Steve

As of the end of 2011 two “hot topic” issues in the field of drunk driving cases have emerged. 

1.   Will the recent trend toward prosecutors charging defendants with murder in drunk driving cases continue? 

While manslaughter charges are still much more common in drunk driving cases nationwide, murder prosecutions have sharply increased in recent years.  Crucially, and with respect to drunk driving, what is the difference between manslaughter and murder?  When a drunk driver causes an accident and someone is killed, they are usually going to be facing manslaughter type charges.  While states use different terms, such as “vehicular manslaughter”, “vehicular homicide”, “voluntary manslaughter”, etcetera, the death is generally deemed to be unintentional but caused by the driver’s negligent or reckless conduct.  The crux of a murder charge is generally legal proof of “malice” on the part of the defendant.  What is malice?  Usually it means the intent to kill someone: you intended to kill that person.  Recklessness or criminal negligence means just that: reckless actions on the part of the defendant.  An example would be that in New York, a person is guilty of manslaughter when he or she is “aware and consciously disregards a substantial and unjustifiable risk that resulted in someone’s death.”  Murder, on the other hand, refers to someone who, with “a depraved indifference to human life” engaged in conduct that created a grave risk of death.  In New York, as with many states, the concept of “depraved indifference to human life” has been in flux for many years.  In these situations how is it determined if a person’s actions rose to the level of “depraved indifference?”  Judges, attorneys and legal experts from across the country often ask the same question.  Ultimately, should drunk driving incidents resulting in death be included in that category?

The state of North Carolina set a precedent when, on April 8, 1987, a jury in Winston-Salem, upheld a first degree murder conviction for a DUI offense that caused the death of two individuals.  On July 1, 2005, in a tragic incident, Martin Heidgen, of Valley Stream, New York, got behind the wheel of his pickup, drove the wrong way down a highway, and plowed into a wedding limousine killing seven year old Katie Flynn.  Heidgen, who had previously been arrested for drunk driving in Mississippi in 2001, was charged and convicted of murder (this story was featured as a segment on CBS’s “60 Minutes” on January 4, 2009).  As a result of a DUI accident in Colorado in July of this year, a woman was charged with first degree murder following a DUI accident.  According to various new sources, the defendant had been put on probation for a prior DUI conviction just two days prior to the fatal accident.  Also, the defendant reportedly left the scene of the crash and tried to evade police.  Adam Hall, of Orange County, California, was charged with murder and driving under the influence following a collision where a pedestrian was killed and two others were injured.  A spokeswoman for the Orange County District Attorney’s office said that Hall’s previous convictions for DUI were a factor in the decision to seek a murder conviction.  Finally, the San Joaquin District Attorney’s office in Stockton, California, announced plans to seek a murder conviction over a July, 2010 drunk driving accident where a couple was killed.  The defendant, Tiffany Ann Holmes, reportedly had a blood alcohol content of .21 percent – nearly three times the legal limit in California, when the collision occurred.  The nationwide trend in these cases is for prosecutors to strongly consider seeking murder convictions in DUI cases where the defendants have prior records of DUI convictions and have high blood alcohol readings.

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We Knew This Was Coming

Posted on February 6, 2012 by Steve

A California appeals court ruled on November 14th that it is a criminal violation to use a cell phone at any time while a person is sitting in the driver’s seat of a moving or stationary vehicle.  Obviously, this decision will have wide ranging implications for California drivers who might have used their cell phones at a traffic control (traffic light).

California banned the use of handheld cell phones while driving a vehicle in July of 2008.  The case at bar involved Carl Nelson, a driver of a car stopped next to a police officer at a red light.  It appeared to the officer that Nelson was making a cell phone call.  Nelson put down the phone as soon as he saw the police officer; and stated to the officer that he was “just checking my email while waiting for the light to turn green.” 

California law states as follows: “a person shall not drive a motor vehicle while using a wireless telephone unless that telephone is specifically hands-free and is used in that manner.”  A subsequent to the amendment made it illegal to read or write text or email while driving. 

Nelson argued to the lower court that he was not “driving” when he used the phone.  The three judge appellate panel did not agree.  The court held that the word “drive” applies even when a vehicle is stopped at a traffic light.  The court’s written opinion cited a number of cases to support its position involving DUI arrests and search and seizure laws.  The court went on to state that allowing any type of cell phone usage, even in a motionless vehicle, creates a safety hazard for the general public. 

http://www.thenewspaper.com/

South Carolina DUI Lawyer Steve Sumner exclusively handles misdemeanor and felony DUI defense; and administrative license revocations.  He represents clients in Greenville, Spartanburg, Anderson, Oconee and Laurens counties.  You can contact him at upstatedui.com or 864-235-3834.  His office is located at 1088 N. Church Street, Greenville, SC 29601.

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Brazilian racer arrested for DUI manslaughter in Miami

Posted on February 2, 2012 by Steve

According to a report from NBC Miami Beach, Florida, a Brazilian racecar driver was arrested last week for DUI manslaughter and vehicular homicide after supposedly causing an accident where a pedestrian was killed. 

20-year-old Joao Paulo Escudero Mauro posted a $250,000 bond while awaiting trial, but was also fitted with an ankle monitor and had to surrender his passport. 

Briefly, and according to written police reports filed in the matter, Mauro was driving 60 miles per hour in a 30 mile per hour zone; and swerved and drove onto a nearby sidewalk while at the same time Russell Knudson was attempting to put a bicycle into the rear of his SUV when he was hit and killed by Mauro. 

Mauro allegedly admitted that he had been drinking alcohol earlier, and claimed that he swerved his car to avoid another vehicle that had stopped in traffic in front of him. 

Upon his arrest Mauro’s left nostril was noticed to contain a “white powdery substance”, and arresting officers retrieved a small bag of a substance appearing to be powder cocaine. 

As of today’s date, Mauro faces the charges of DUI manslaughter, vehicular homicide and cocaine possession. 

Steve Sumner Says:

In South Carolina, a driver charged with “felony DUI”  (the same charge as is Florida DUI manslaughter), with a death involved, would face a minimum mandatory sentence up to 25 years in prison, along with a $10,000 fine.  A South Carolina driver would be charged with “reckless homicide”, which carries a punishment of up to 10 years in prison and a $5,000 fine.  In South Carolina, “cocaine possession” carries up to two years or a fine not more than $5,000, or both.

http://miami.cbslocal.com/2012/01/20/brazilian-man-charged-in-deadly-crash-expected-in-court/

http://www.miamiherald.com/2012/01/19/2596893/roads-closed-on-collins-avenue.html

http://www.nbcmiami.com/news/250000-Bond-for-Brazilian-Race-Car-Driver-Charged-With-DUI-Manslaughter-137759978.html

http://www.wsvn.com/news/articles/local/21006467469827/police-man-struck-killed-by-driver-of-suv/

South Carolina DUI Lawyer Steve Sumner exclusively handles misdemeanor and felony DUI defense; and administrative license revocations.  He represents clients in Greenville, Spartanburg, Anderson, Oconee and Laurens counties.  You can contact him at upstatedui.com or 864-235-3834.  His office is located at 1088 N. Church Street, Greenville, SC 29601.

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SOUTH CAROLINA DRIVERS CAN CHECK THEIR DRIVERS LICENSE STATUS ONLINE

Posted on January 30, 2012 by Steve

A new feature on the South Carolina-Dept. of Motor Vehicle website allows South Carolina drivers to check the status of their drivers license online. This link is found at http://www.scdmvonline.com/DMVNew/default.aspx  on the website. You will need to click on the “Online Services” tab located at the upper right on the Home Page to get started. A lot of useful information to a driver can now be obtained online. Examples would be the number of current points a driver has accumulated, a complete copy of their three (3) or ten (10) South Carolina driving record. Any current suspensions against your license, all of the steps that a driver needs to take to remove and clear up any pending suspensions. A South Carolina driver can also change their address and pay any reinstatement fees online. https://www.scdmvonline.com/dmvpublic/

In South Carolina, a driver who has been arrested for DUI and also had their license seized for an Implied Consent violation is eligible for a “Temporary Alcohol License”. Significantly, the “Temporary Alcohol License” has no restrictions and a driver is allowed to drive on this credit card style license pending the hold and results of the Implied Consent Hearing. This process can often take up to six (6) months; most of the time it is critical for the person to obtain a “Temporary Alcohol License” in the meantime. Before SC-DMV will issue a “Temporary Alcohol License”, the person’s drivers license status must be free of all suspensions and be current on any past due reinstatement fees. https://www.scdmvonline.com/dmvpublic/

Accordingly, the SC-DMV website can be a valuable tool for drivers needing to clear up any problems so that they can get their “Temporary Alcohol License”. Additionally, the SC-DMV website can answer virtually all questions for non-South Carolina residents looking to obtain a South Carolina drivers license.

http://www.scdmvonline.com/DMVNew/default.aspx

South Carolina DUI Lawyer Steve Sumner exclusively handles misdemeanor and felony DUI defense; and administrative license revocations.  He represents clients in Greenville, Spartanburg, Anderson, Oconee and Laurens counties.  You can contact him at upstatedui.com or 864-235-3834.  His office is located at 1088 N. Church Street, Greenville, SC 29601.

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GREENVILLE COUNTY ALLOWS DRIVERS TO PAY TRAFFIC TICKETS ONLINE

Posted on January 26, 2012 by Steve

A new feature for the Greenville County Magistrate’s offices, allows citizens who have received a traffic ticket (blue ticket) in Greenville County to pay their traffic ticket online. This link is found at http://www.greenvillecounty.org/scjd/onlinepayments/greenville/ProcessOnLinePayment.aspx . Instead of having to mail in your payment with a certified check or deliver the fine to the Magistrate office, you can now pay the ticket online and print out a receipt for your records.

As this website will be convenient for many, if you are wanting  help with the fine, contest the traffic ticket, or advised by the arresting officer to be present at your initial court date, you will need to show up on your scheduled court date and time and discuss these issues with the arresting officer.

The only information you will need to pay a traffic ticket online is your last name and your case number (ticket number) which is located on the lower right hand side of the traffic ticket (blue ticket).

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Drugged, Distracted or Drowsy Driving versus Drunk Driving

Posted on January 23, 2012 by Steve

Recently, the president of MADD was quoted in the Los Angeles Times as saying, “We don’t want cell phones and drowsy driving to become the next hot button issue for this country, because they don’t even compare with the problem of drunk driving.”  I could not have said it better.  While no one advocates drunk driving, drugged, distracted or drowsy driving is a much more significant problem than drunk driving.  There is no question about it.  But you don’t’ have to take my word for it, as the studies and statistics do my talking for me.

The Harvard Center for Risk Analysis has provided the only nationwide estimate of cell phone involvement in fatal and injurious car crashes.  They report that cell phones are now a factor in approximately 2,600 annual fatalities and an additional 330,000 crashes with serious injuries. 

Government estimates conservatively put the number of people killed annually as a result of motorists falling asleep behind the wheel at 1,500, with another 71,000 injured annually in these type crashes. 

With this information in mind, let’s examine the most recent statistics we have in the problem of drunk driving.  During the year 2001, the government estimates that 17,448 – or 41 percent – of the deaths on our nation’s highways were “alcohol-related.”  In addition, approximately 275,000 – of 16 percent – of the injuries were attributed to alcohol.  Since the rate of fatalities is so high, and so much higher than the rate of injuries, let’s take a closer look at that statistic.

Of the 17,448 fatalities, 2,555 occurred in crashes where alcohol was detected but no one was over the legal limit.  In these crashes, alcohol may not have been the primary factor in the crash; speed, distraction or fatigue could have been.  That leaves 14,893 deaths that can actually be attributed to alcohol.  However, of these, 1,770 were intoxicated pedestrians and cyclists who walked out in front of the vehicles of sober drivers.  They had nothing to do with drunk driving.

The Partnership questions why these deaths were thrown in with what is normally presented as a drunk driving statistic.  That leaves 13,123 deaths that can be attributed to intoxicated drivers.  Of these, a staggering 8,308 were intoxicated drivers who killed themselves in crashes.  That leaves 4,815 deaths in which intoxicated drivers killed someone other than themselves.

South Carolina DUI Lawyer Steve Sumner exclusively handles misdemeanor and felony DUI defense; and administrative license revocations.  He represents clients in Greenville, Spartanburg, Anderson, Oconee and Laurens counties.  You can contact him at upstatedui.com or 864-235-3834.  His office is located at 1088 N. Church Street, Greenville, SC 29601.

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Show me the Money!

Posted on January 19, 2012 by Steve

A lawsuit was filed last week against the city of Knoxville, Tennessee for its failure (???) to serve tickets against motorists for turning “right on red.”  American Traffic Solutions, an automated ticketing vendor service, brought the suit against the city of Knoxville in a claim that the city’s failure to issue the tickets has cost the company a lot of money.  Interestingly, a Tennessee state law which took effect in July of 2011 banned these tickets; but, incredibly, ATS contends that the law should not preempt their previous legal agreement with the city of Knoxville. 

In accordance with the legal opinion of Attorney General Robert J. Cooper, Jr., the city of Knoxville has ceased issuing these traffic citations. 

ATS bases its lawsuit on the “legislative history” of the new law.  Apparently, state lawmakers friendly to ATS had assured the company that some type of “grandfather clause” would be slipped into the bill allowing ATS to continue to have traffic citations issued on the bases of traffic cameras. 

http://www.thenewspaper.com/news/36/3636.asp

South Carolina DUI Lawyer Steve Sumner exclusively handles misdemeanor and felony DUI defense; and administrative license revocations.  He represents clients in Greenville, Spartanburg, Anderson, Oconee and Laurens counties.  You can contact him at upstatedui.com or 864-235-3834.  His office is located at 1088 N. Church Street, Greenville, SC 29601.

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