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F.
Driving Under Suspension

1. Driving Under Suspension

S. C. Code Ann. § 56-1-460 makes it unlawful for any person to drive a motor vehicle on any public highway of this State when his license to drive is cancelled, suspended, or revoked.  The law makes a distinction between suspensions which result from a conviction of § 56-5-2930 [Driving Under the Influence (DUI)] or § 56-5-2933 [Driving With an Unlawful Alcohol Concentration (DUAC)], and those that do not.

S. C. Code Ann. § 56-1-460 (A)(1) provides that magistrates have jurisdiction over first, second, third, and subsequent violations of the driving under suspension statute when the suspension is not a result of a violation of S.C. Code Ann. § 56-5-2990. Please note that the penalty for second and subsequent offenses exceeds the normal jurisdictional level of magistrate court. However, the Legislature specifically vested jurisdiction over these cases in magistrate court. Therefore, upon conviction, judges have full sentencing authority as provided in the statute. For example, a conviction for a third offense of S.C. Code Ann. § 56-1-460 carries a sentence of a fine of $1,000.00 and incarceration for up to ninety (90) days, or confinement to a person’s place of residence pursuant to the Home Detention Act for not less than ninety (90) days nor more than six (6) months.  No portion of a term of imprisonment or confinement under the Home Detention Act may be suspended by the trial judge.

S.C. Code Ann. § 56-1-460(A)(2) addresses suspensions resulting from a DUI or DUAC conviction.  A first offense violation of the driving under suspension statute where the suspension resulted from a DUI or DUAC requires that the defendant, upon conviction, be fined $300.00 (exclusive of assessments) or imprisoned for not less than ten (10) nor more than thirty (30) days. Therefore, such a first offense violation is within the jurisdiction of magistrate and municipal court. However, the punishment for second and subsequent violations of S.C. Code Ann. § 56-1-460 which are the result of a violation of S.C. Code Ann. § 56-5-2990 exceed the normal jurisdictional limit in summary courts, and must be heard in the court of general sessions.

S. C. Code Ann. § 14-25-45 provides that municipal courts shall have all such powers, duties, and jurisdiction in criminal cases made under State law and conferred upon magistrates. Therefore, municipal judges have jurisdiction to dispose of these cases also.

Rule 602 of the South Carolina Appellate Court Rules provides for the defense of indigents in criminal proceedings. The Rule requires appointment of counsel in magistrate and municipal courts upon a showing of indigency and "...if a prison sentence is likely to be imposed upon conviction." In certain subsequent violations of the DUS statute, jail time is mandatory. When presiding over those cases, reference to Rule 602 and consideration of appointment of counsel is required.

2. Suggested Charge for Driving Under Suspension

The defendant is charged with driving under suspension. The State must prove beyond a reasonable doubt that the defendant drove a motor vehicle on a public highway in this State during the time the defendant’s driver’s license was cancelled, suspended, or revoked.

To be guilty of driving under suspension, the defendant must have been notified by the Department of Public Safety that his driver’s license has been cancelled, suspended, or revoked.