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J.
Previous DUI Charge Pending

1. Previous DUI Charge Pending

S.C. Code Ann. § 56-5-2930 prohibits persons under the influence from driving any vehicle within the State. Many times a defendant will be arrested for driving under the influence and it will be found that a previous charge against him has not been disposed. In these cases magistrates and municipal court judges are often times confused as to the procedure to be followed. The South Carolina Supreme Court in the case of State v. Sarvis, 266 S.C. 15, 221 S.E. 2nd 108 (1975), held that a reasonable delay in bringing a second driving under the influence charge to trial so that disposition of a first charge could be determined was not prejudicial to the defendant.

2. Delay in Trying Second Charge

The language of the Court follows:

Delay in Trying Second Charge

The only request by respondent was that his case be tried in Magistrate’s Court. He has not sought a speedy trial in any other court. In view of respondent’s prior conviction for a first offense, the Magistrate’s Court had no jurisdiction to grant respondent’s request. In substance, the contention of respondent is that he was entitled to have the second charge against him tried in Magistrate’s Court as a first offense while the appeal from the first offense conviction was pending. If this has been done and respondent had been convicted on the second charge, he would have had two convictions for first offense charges of driving under the influence, since his first conviction was affirmed.

It is apparent that the main cause of delay in disposing of the second charge against the respondent was the appeal from the conviction for the first offense. The delay, resulting from such appeal, in order to determine the appropriate court in which to try the second charge, was reasonable and necessary and deprived respondent of no constitutional right to a speedy trial. Respondent’s right to a speedy trial did not give him the right to insist that he be given a speedy trial in a court without jurisdiction to try the offense.

The controlling considerations when dealing with the defendant’s right to a speedy trial have been set forth in State v. Foster, 260 S.C. 511, 197 S.E. 2nd 280. One of the most important factors is that of prejudice to the defendant from the delay.

The only prejudice claimed, or found by the lower court, was that by waiting until the appeal from the conviction for the first offense was affirmed by the Court, respondent’s second charge was determined absolutely to be a second offense subjecting him to a charge of a higher crime for which the punishment would be more severe. This result is required by the law when a defendant is charged with multiple violations of the statute making it unlawful to drive while under the influence of intoxicants. The fact that for a second violation a defendant is charged with a second offense under the statute is the intent of the law and doe not constitute legal prejudice. State v. Sarvis, supra 221 S.E. 2nd at 110.