What is Felony DUI?

A felony DUI charge in South Carolina requires that the person be proven to have:

• Operated a vehicle under the influence of drugs or alcohol or both, and
• Did something else against the law, whether traffic law or duties imposed by the court, for example, failed to maintain lane or acted negligently, and
• Proximately causes great bodily injury or death to a person other than himself, including passengers, pedestrians, and other motorists.

The first element sounds alot like a DUI, but unlike DUI, the statute does not mention that the drugs or alcohol must impair the ability of the driver to drive safely.

The second element, as written, may allow individuals who are under the influence, but do nothing else wrong, to escape a serious felony DUI charge.  For example, a driver while under the influence who kills a driver who turns in front of him will probably not be charged with a felony DUI charge. Why?  Because the impaired driver broke no other law and breached no other legal duty.  The other driver was at fault.

The third element contains two prongs: “proximate causation” and “great bodily injury.”  What do these phrases mean? Proximate causation basically means legal causation, not factual causation, that will be recognized for a certain purpose. In the previous example, the impaired driver arguably would still not be charged with felony DUI because the other driver turned in front of the oncoming car and caused the accident. Although impaired, the impairment was not the “proximate cause” of the crash.

Great bodily injury for the purpose of felony DUI is an injury that “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.” In serious automobile accidents, it is not unusual for someone to lose a body part or organ. This scenario would certainly qualify for a felony DUI. Also, pursuant to the statute, if someone dies of complications within 3 years of a “great bodily injury” as defined below, that death would meet the proximate causation standard. SC Code § 56-5-2945.

Penalties

The penalties for conviction of a felony DUI depend on whether there was a great bodily injury or a death.

For causing great bodily injury:

• 30 days to 15 years mandatory imprisonment, in state or federal prison, not local jail,
• $5,000 to $10,100 mandatory fine,
• driver’s license is suspended for the term of imprisonment plus three years.

For causing death:

• 1 year to 25 years mandatory imprisonment, in state or federal prison, not local jail,
• $10,100 to $25,100 mandatory fine, and
• driver’s license is suspended for the term of imprisonment plus five years.

As you can see, judges have little sentencing discretion in felony DUI cases. One last caveat: the local prosecutor can elect to charge someone with either felony DUI or , in the alternative, involuntary manslaughter or reckless homicide.

If you want to read the actual statute for yourself, it is reproduced below:

SECTION 56-5-2945. Offense of felony driving under the influence; penalties; “great bodily injury” defined.

(A) A person who, while under the influence of alcohol, drugs, or the combination of alcohol and drugs, drives a motor vehicle and when driving a motor vehicle does any act forbidden by law or neglects any duty imposed by law in the driving of the motor vehicle, which act or neglect proximately causes great bodily injury or death to a person other than himself, is guilty of the offense of felony driving under the influence and, upon conviction, must be punished:

(1) by a mandatory fine of not less than five thousand one hundred dollars nor more than ten thousand one hundred dollars and mandatory imprisonment for not less than thirty days nor more than fifteen years when great bodily injury results;

(2) by a mandatory fine of not less than ten thousand one hundred dollars nor more than twenty-five thousand one hundred dollars and mandatory imprisonment for not less than one year nor more than twenty-five years when death results.

A part of the mandatory sentences required to be imposed by this section must not be suspended, and probation must not be granted for any portion.

(B) As used in this section, “great bodily injury” means 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.

The Department of Motor Vehicles must suspend the driver’s license of a person who is convicted or who receives sentence upon a plea of guilty or nolo contendere pursuant to this section for a period to include a period of incarceration plus three years for a conviction of Section 56-5-2945 when “great bodily injury” occurs and five years when a death occurs. This period of incarceration shall not include any portion of a suspended sentence such as probation, parole, supervised furlough, or community supervision. For suspension purposes of this section, convictions arising out of a single incident shall run concurrently.

(C) One hundred dollars of each fine imposed pursuant to this section must be placed by the Comptroller General into a special restricted account to be used by the Department of Public Safety for the Highway Patrol.

HISTORY: 1983 Act No. 114 Section 4; 1987 Act No. 58 Section 1; 1987 Act No. 82 Section 1; 1993 Act No. 181, Section 1419; 1993 Act No. 184 Section 252; 2003 Act No. 61, Section 17; 2008 Act No. 201, Section 8, eff February 10, 2009.

Links: National College for DUI Defense, SC Association of Criminal Defense Lawyers